A few months ago I saw the staff members of my gym receiving CPR instruction. Recently, I noticed a defibrillator (AED) on the wall of my gym that wasn’t there previously. I did some research and determined that there has been litigation concerning this issue.
When you join a fitness facility, you will most likely be required to sign a Release. There are generally two types of Releases.
- A Release for past injury and damages is the type of document that will be signed at the end of a personal injury case. The injured party accepts some consideration (usually money) to settle his claim. The Release language prevents the injured party from bringing another claim or action against the person or entity that allegedly caused the injury, no matter what happens in the future. These types of Releases are generally upheld by the courts.
- A Release for prospective injury concerns an injury that may occur in the future. These types of Releases may or may not be upheld by the courts, depending on the specific circumstances surrounding the release. Notwithstanding, their validity Releases are a deterrent to litigation, and they invariably contain clauses which state that, if a lawsuit is filed, the prevailing party will be entitled to Attorneys’ fees and costs incurred in the litigation.
In one defibrillator case, the fitness facility intentionally did not require that employees be trained in the use of CPR to assist a member that may experience a heart attack. Furthermore, they did not train their employees on the use of a defibrillator, despite the fact that between 20-40 members each year experience heart attacks while at their facilities. The underlying policy was established to avoid potential liability for improperly or negligently performed medical assistance and to save the expense of certifying their staff on first aid procedures and to save the costs of the cost of the first aid equipment. The cost of a defibrillator is between $1,100 .00 and $2,000.00.
Obviously, this hands off position saved the facility a lot of money. In one case the member that suffered a heart attack while on the facility suffered severe and irreversible brain damage, was able to recover from the facility (no Release was signed In this case).
Since the installation of AED’s, lives have been saved. Fitness facilities are aware that published standards by the American Heart Association and American College of Sports Medicine recommend the use and availability AEDs in health clubs.
Is signing a release effective?
In another case against a fitness facility a woman, who had signed a Release was injured when she fell over a dumbbell that had been left off the rack in the weight lifting area. The court ruled that the Release was valid and enforceable and that it covered the incident resulting in the member’s injury, because the member’s injury arose out of the “use” of the facility.
In order for a release to be effective, it must be easy to read and must be readily noticed within the membership contract. The general rule is that if must be in larger type than the rest of the contract and that it must be in bold face type. It should not be hidden in a contract. A lay person, with normal vision should be able to easily find and notice the Release language in the contract. The waiver of legal rights cannot be hidden in fine print. The language cannot be ambiguous. If there are ambiguities in the Release language, the ambiguities will be construed against the party that drafted it. The staff employee signing up the member should explain the Release language of the contract.
Whether the release is clear and unambiguous is a question of law. This means that the judge rather than the jury determines this issue. If the Release absolves the fitness facility from “negligence”, every act of negligence of the fitness facility need not be spelled out in the contract, because it is virtually impossible to list all possible cause of accidents.
When are releases upheld?
The main issue involved with Release cases is whether the particular risk of injury is inherent in the member’s general use of the fitness facility, as opposed to the maintenance of the facility. Releases are generally upheld if the injury occurs out of the member’s use of the facility (the member drops a weight on their foot). There is a better chance of prevailing, regardless of the Release, if the member is injured by a negligent maintenance of the facility.
Releases are based on the legal theory of Assumption of Risk. Assumption of Risk means that inherent risk of injury is known to the injured party, and that he voluntarily proceeds to engage in the activity in light of the know risk.
In 1986 I had a case in before the Nevada Supreme count known as the “Flyaway” case. Renaud v. 200 Convention Center Ltd. dba Flyaway, 102 Nev. 500, 728 P.2d 445 (1986). This case also involved a Release for prospective injury. At that time there were very few published cases on this issue. The “Flyaway” facility involved a free-fall simulator. The Court stated that the Release language was based upon the legal theory of Assumption of Risk. A risk is voluntarily assumed by a person, if it is know to him; he fully appreciates the danger, and there is actual knowledge of the danger assumed. This Court stated that the knowledge of the risk in this case was a question of fact (something for jury to decide in a jury trial). The jury should consider factors such as the nature and extent of potential injuries, and the haste or lack thereof with which the release was obtained, and the understanding and expectations of the parties at the time of signing. ( Flyaway did not disclose that risk of injury associated with the use of this novel recreational facility was actually quite high).
After the Flyaway case was decided, this decision lead to the settlement of many pending Flyway cases filed in our state and federal court.
Therefore, a fitness, recreational or sports facility Release is not always a bar to recovery for an injured party.
