CONTENT BROUGHT TO YOU BY: Sports & Fitness Insurance Corp.
When I talk to fitness facility owners at any of our industry events, I almost always get one of two responses when talking about 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,” so why bother having one at all?
The truth is state laws determine how effective a waiver may be in court, but it is important to always have a well-written waiver in every state. Please read on to understand why.
Confusion about the importance and effectiveness of waivers occurs because state laws vary, which means lawsuit outcomes vary. We read examples all the time about large liability settlements and awards in which the liability waiver did not protect the fitness center from claims. We usually don't read about the many instances in which the waiver resulted in a claim being dismissed by the court.
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. Even within some states local jurisdictions vary, sometimes resulting in rulings against waivers in one area of the state and in support of waivers in other areas. These jurisdictions are well known to attorneys and insurance companies. Variation in state law is why insurance rates typically vary from state to state.
The Importance of a Liability Waiver
For all of these reasons, it is critically important to work with a lawyer in your state with experience in the liability waiver laws of your state when developing your liability waiver. Some states require specific language for the waiver to hold up in court. Although good cost-saving resources are available to help fitness center owners write their own waivers, it is imperative that an experienced attorney review and edit the waiver before it is put into use in your fitness facility. I have heard many experts over the last year tell new fitness center and studio owners that this is money well spent. 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. Why is that? A liability waiver is intended to release the facility from liability for injury resulting for ordinary negligence. Taking every possible precaution to keep your fitness center as safe as possible still cannot take the place of the liability waiver.
Additionally, every claim is different, and every case is different in court. It is possible for a judge or jury to rule differently in one case than in a similar case because of variations in the details in the two cases. State laws also change frequently, so a waiver may become more useful in the future even if the state courts have not ruled favorably in prior cases.
Regardless of the state, a waiver does not protect a fitness facility 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.
Don't rely just on a liability waiver to protect your fitness business from claims even if it is a good waiver and you live in a state with favorable waiver laws. You must take other steps, too, such as carrying an appropriate level of liability insurance, taking all possible steps to protect your members and documenting all upkeep and maintenance throughout the year.
What Makes a Well-Written Liability Waiver?
As stated above, obtain the assistance of an expert to help you develop a waiver. 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 facility. If possible, use a stand-alone waiver document separate from your membership or participation agreement. These have proven to stand up better in court. Write the waiver document so it is as specific as possible to your facility and the activities the participant will engage in at your facility.
The language of the waiver can make this a positive document to review with your members and guests. You can explain how their safety is of the utmost importance to your fitness facility, explain the inherent risks of participation and close by requiring their signature on the release of liability.
Another common question relates to waivers for children and minors. A parent must sign the waiver for a minor. Although waivers for minors rarely hold up in court in most states, it still is imperative to obtain one for minor participants in fitness activities and in the child care facilities at fitness centers. Again, get expert assistance when creating waivers for minors.
Back to the original question: Do waivers really work, or are they "not worth the paper they are written on?" Waivers can work well in some states and less so in others, but they are more than worth the money you spend to write them if they save your fitness business from even one claim – now or in the future.
BIO
Jennifer Urmston Lowe is the national accounts manager for Sports & Fitness Insurance (SFIC). She has been a licensed insurance agent insuring health clubs and fitness centers since 1998. As the daughter of John Urmston, former chief operating officer of Nautilus, chairman of the Fitness Products Council and member of the President’s Council on Fitness, Lowe grew up in the industry and began attending Nautilus seminars in the 1980s. Prior to joining SFIC, she was the general manager of two personal training fitness centers and three corporate wellness centers. Contact Lowe at [email protected] or 800-844-0536 ext. 2333.