By Jennifer Urmston Lowe
Fitness facility owners and personal trainers often give very little attention to their liability waivers or hold harmless agreements because they feel they are not going to protect them from claims and they don’t want to pay for legal advice. 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.
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 liability waiver is intended to release the facility from liability for injury resulting from ordinary negligence. But in order to ensure protection, it is important to work with a lawyer in your state with experience in the liability waiver laws of your state. 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.
A well-written liability waiver is the single best tool a fitness facility owner has to manage risk.
Of course, 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.
So, 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 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. In addition, consider these things:
- 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.
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.