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Chicago Injury Attorney Explains Liability Waivers

liability waiverThose who are members of gyms most likely sign a contract when they start their membership. Most who sign do not read what they have signed. However, those joining a fitness center may want to reconsider their contract agreement and read the fine print, because they might have signed a binding liability waiver.

For one plaintiff in a personal injury lawsuit, that liability waiver came back – and with a big bite. Patricia Evans from Pennsylvania was injured while working out at her local LA Fitness gym. The 60-year old fell and fractured her wrist while doing suicide runs with her trainer. In her lawsuit, she alleged that her trainer was pushing her too hard, and it caused the injury.

In a judgment, the LA Fitness team won because when Ms. Evans signed up for the fitness center, she signed a liability waiver.

Liability Waivers Could Be the End of Your Lawsuit

Liability waivers might seem like a minor clause, but they carry a significant impact regarding liability-based lawsuits. Most gyms or facilities will only permit the use of their grounds if a liability waiver is signed because that is how they protect themselves from lawsuits.

You have two options when faced with a liability waiver: Sign it and join, or don’t sign it and don’t join.

These waivers are traditionally upheld by the courts because you are not being forced to sign them. You sign them voluntarily to use the facilities.

This is what happened to the woman in PA. She had to sign the waiver and use LA Fitness, or not sign the waiver and not gain access to the gym. Her attorney filed a suit that challenged the waiver because there was a contract of adhesion in place. He went on to state that the woman had no choice but to sign.

The court did not agree. They decided that if Ms. Evans did not like the agreement she faced, she could have walked away. LA Fitness did not corner her into signing or influence her signature in anyway. By signing the liability waiver, she agreed to the inherent risk of using the facility.

There are some who agree with the use of the liability waiver, while others feel it is unfair to the gym’s customer base to be held accountable for injuries that the facility caused.

The Assumption of Risk Factor

When you visit a facility or recreational activity, there is a factor of assumed risk. The assumption of risk doctrine can shield a defendant from liability under situations. Assumption of risk is a defense that works even without a liability waiver or legal liability waiver.

Under the doctrine of assumption of risk, a defendant is protected from lawsuits where a plaintiff’s voluntary involvement in an activity requires accepting a level of risks and hazards. For example, someone who goes skydiving is assuming there is risk involved.

Under the primary assumption of risk doctrine, it asserts the fact that there is inherent risk with certain activities, and that risk cannot be avoided even with the most care. Some courts have even stated that any activity that carries a form of inherent risk would be protected under this doctrine if the risk cannot be eliminated without altering the fundamentals of the entire activity.

Examples of Activities that Include the Assumption of Risk:

  • Hiking: When a person is hiking up rough terrain and slips and breaks a bone, the defense could assert that hiking uphill on unstable terrain carries inherent risks to it. There are risks with that trail, and those risks could not be improved by the defense, because hiking the rough terrain is part of the activity. If, however, the defendant was grossly negligent, this defense would not apply.
  • Playing Sports in a League: When people sign up to play sports in a league, they know there are some risks to doing so. Therefore, this risk is assumed by those who participate.
  • Surfing: When people enter the ocean to surf, they know that there is the risk that they could be injured or even drown in the water. This is an inherent risk of engaging with nature, and there is nothing a lifeguard or the state that owns the beach can do to reduce that risk, because they cannot control the ocean.

Not All Liability Waivers Are Upheld

Even if there is a liability waiver in your gym contract, you may still have a claim against the gym. If the gym was outright negligent or purposely caused your injury, you could have a claim. Even so, the liability waiver may not be upheld by the court if it has inappropriate wording or wording that goes against the law. Therefore, consult with an injury attorney at Malman Law and have your contract assessed fully before assuming that you do not have a claim.

Determining the Effectiveness of the Liability Waiver

If you signed a liability waiver at a gym or other facility, that waiver may not be enforceable and you could still hold that facility liable for its actions. However, there are certain factors that influence whether the liability waiver is effective or not. These include:

  • The language used to create the liability waiver. This is the most critical aspect of examining the effectiveness of a liability waiver. You must first review the language used in such waiver. If the language is unclear or ambiguous in nature, then the organization claiming that they are not responsible may not be a viable defense in court. If, however, the language clearly identifies all parties and the level of responsibility for each, then it could be enforced.
  • Location of the critical language in the contract. When you sign the contract, there will be numerous clauses. Where the information about the liability waiver is placed on that contract will matter just as much as the language. If the liability information is tucked away somewhere in the contract or written smaller than other information so that the individual cannot see it, the court will not enforce the agreement. Instead, the liability information must be clear, readable, and easily viewed by anyone who examines the agreement.
  • What caused the accident. This is another critical factor. While the company may have an ironclad liability waiver, there are instances where even the best written contract is not enforceable. Some actions are not waived, such as gross negligence, intentional harm, or acts that apply for strict liability against the facility. For example, a facility requires a patron to sign a contract waiving liability; however, that same facility fails to provide even the basic standard of care. No court would enforce a contract in that situation.
  • State laws apply, too. State laws will play a role in determining how effective a liability waiver may be. Some states heavily scrutinize such agreements, and there are others that will refuse to enforce the agreement outright.
  • The use of unconscionable provisions. Some provisions in a legal contract are unethical for the courts to enforce. The court, however, must determine if a provision is considered unconscionable or not.
  • The scope of the liability waiver protections. When the scope is too defined or too specific, the defendant could do more harm to their liability than good.

The Gross Negligence Factor

Another important factor is gross negligence. No matter how well-written the liability waiver, if the defendant performs gross negligence, the court will not enforce the contract.

Gross negligence is the failure to exercise even a slight amount of care. This is a deliberate disregard for the safety of others. If someone was convicted of gross negligence, he or she was more than aware that those actions were negligent, and he or she deliberately put him or herself ahead of the safety of others. In some cases, they border on intentional acts.

Some examples of gross negligence include:

  • A physician who amputates the wrong limb on a patient.
  • A driver who chooses to speed in a parking lot, where there are pedestrians present and an obvious requirement to drive slowly and safely.
  • A caregiver who decides to not provide food or water to the patient under care.
  • A gym facility that knows it has defective equipment, but tells patrons it is safe and still collects fees and signs on new clients to use the equipment.
  • A personal trainer who knows that his or her client has a heart condition, but chooses to push the client physically anyway.
  • A skydiving instructor who gives no instruction or fails to inspect equipment before distributing to participants of the activity.

There is no liability waiver or assumption of risk that covers gross negligence. If the defendant is grossly negligent, the courts will most likely hold him or her accountable. Gross negligence could even qualify the plaintiff for punitive damages, which are damages designed specifically to punish the defendant for reckless behavior.

Schedule a Consultation With a Personal Injury Attorney

Whether you have a liability waiver or not, you have the right to hold reckless parties responsible for their actions. The personal injury attorneys at Malman Law are here to advocate for that right.

Schedule a free, no-obligation consultation with our attorneys today by calling us or request more information online.

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