By Jennifer Urmston Lowe
Sports & Fitness Insurance Corp.
When I talk to health club and gym owners at any of our industry events, I almost always get one of two responses regarding the subject of liability waivers. Either the owners think their waiver is going to protect them from claims and they don’t need to pay for “those high insurance premiums” or they think the waiver “isn’t worth the paper it is written on” and why bother having one at all. The truth is that state law determines how effective a waiver may be in court but it is extremely important to have a well written waiver in every state, always. Please read on to understand why.
Difference in state law is the reason we have so much confusion about the importance and effectiveness of waivers. We read examples all the time about large liability settlements and awards in which the liability waiver clearly did not protect the health club or gym from claims. We don’t usually read anything about the many instances in which the fitness center’s waiver did get a claim dismissed by the court. The difference in results is because state laws vary tremendously.
A small number of states do not recognize the validity of a liability waiver at all, other states support the waiver language strongly but most states are somewhere in between. There is also a good deal of diversity within some states where specific local jurisdictions may rule strongly against or in support of waivers. These jurisdictions are well known to attorney’s and insurance companies. Variation in state law is why insurance rates typically vary from state to state.
For all of these reasons, it is critically important to work with a lawyer in your own state with experience in the liability waiver laws of your state, when you develop your liability waiver. Many states require very specific language for the waiver to hold up in court. Although there are good cost saving resources available to help fitness center owners write their own waivers in our industry, it is imperative that an experienced attorney review and edit the waiver you develop before you put it into use in your fitness facility. I have heard many experts over the last year tell new health club, gym and studio owners, that this is “money well spent” and from the standpoint of the insurance carriers, we could not agree more.
Why are liability waivers so important in all states even if some states either don’t recognize their validity or rarely do? Because a well written liability waiver is the single best tool a fitness facility owner has to manage risk. The next question is obvious. Why is that? A liability waiver is intended to release the health club, gym or fitness studio from liability for injury resulting for ordinary negligence. Taking every possible precaution to keep your fitness center as safe as possible, still can’t take the place of the liability waiver. Additionally, every claim is different and every case is different in court. It is possible for one judge or jury to rule differently based on different details than those that heard similar cases before them. State laws also change frequently so a waiver may become highly helpful in the future even if the state courts have not ruled favorably on them in the past.
It is very important to understand what a waiver does not do in any state. It does not protect a health club, gym or fitness studio from gross negligence, reckless conduct or intentional acts. When we see big headlines for large claim settlements, there is usually a claim of gross negligence that resulted in serious injury. It is, therefore, extremely important not to rely on a liability waiver to protect your fitness business from claims even if it is a very good one and you live in a state that has very favorable waiver laws. Carrying an appropriate level of liability insurance, taking all possible steps to protect your members and documenting all upkeep and maintenance throughout the year are all necessary to protect yourself and your business, along with a well written liability waiver.
The next logical question then is, “What makes up a well written liability waiver?” As stated above, first and foremost obtain the assistance of an expert to help you develop the document. Most likely this is will be an attorney with experience in the liability waiver laws of your state and preferably one who is also familiar with the fitness industry and your own facility specifically. If possible, use a stand-alone waiver document that is separate from your membership or participation agreement. These have proven to stand up better in court. Write the waiver document so that it is as specific to your fitness center and the activities the participant will engage in at your facility as possible. The language of the waiver can make this a positive document to review with your members and guests by expressing the concern that their safety is of the upmost importance to your health club, gym or fitness studio and explaining the inherent risks of participation as well as requiring them to sign the release of liability.
Another common question that I am asked regularly is regarding waivers for children and minors. A parent must sign the waiver for a minor. Although waivers for minors only rarely hold up in court in most states, it is still imperative that they be obtained for minor participants in fitness activities and in the child care facilities at health clubs and gyms. Again, it is most important to obtain expert assistance with waivers for minors also.
The ultimate answer to the original question, Do Waivers Really Work or Are They “Not worth the paper they are written on”? is they can work very well in some states and less so in others but they are more than worth the money that you spend to write them if they save your fitness business from even one claim now or in the future.