Have Fun: Waiving Liability

Colorado businesses and ministries think a lot about waivers of liability. That’s because it’s so much fun to live in Colorado—and fun things are often dangerous. In December 2016, a new case came out on this riveting topic.¹ (We understand that this is riveting for lawyers. We also understand it will be riveting for you too if you ever get into a similar situation.)

The Dangers in the Locker Room of the Fitness Club

In this case, the story started at the plaintiff’s fitness club when she caught her foot in the hair dryer cord, which was apparently hanging down, and fell, fracturing her ankle. She sued the fitness club for general negligence under the Premises Liability Act.

The club argued that the plaintiff had signed an assumption of risk and liability release, and therefore she could not bring a claim. The trial court agreed with the club and dismissed the case. The plaintiff appealed.

Waivers Should Be Clear and Unambiguous—No Magnifying Glass Needed

Both parties ultimately agreed that the Premises Liability Act was the only remedy against the landowner, meaning that the plaintiff could not sue under common law negligence. And the plaintiff agreed that she would not have been able to bring claims for falling off treadmills or getting hit with racquetballs.

She argued that the waiver she signed wasn’t clear as to her locker room activities. The case, in fact, turned on whether the parties expressed their intent in clear and unambiguous language. What does that mean? An ordinary person, reading English, should be able to understand what she agreed to. As one court put it, you shouldn’t need a magnifying glass and a dictionary.

In this case, the court commented that you’d probably need a magnifying glass or reading glasses to wade through this Agreement. The court also objected to the technical legal language, such as “affiliates, subsidiaries, successors, or assigns,” and “I agree to defend, indemnify, and hold [the club] harmless.” Plus, the language was ambiguous in many ways in addition to being technical. What is the difference between technical and ambiguous speech? Technical language may be clear once you understand the jargon. Ambiguous language is never clear. So, the court seemed to think that the Agreement wasn’t going to be clear to the plaintiff whether she understood the language or not.

In addition to these problems, the Agreement focused on the dangers of working out, skipping over the desperate hazards in the locker room. The court finished up by saying, “the Agreement uses excessive legal jargon, is unnecessarily complex, and creates a likelihood of confusion or failure of a party to recognize the full extent of the release provisions.” Time for the lawyers who drafted it to hide their heads in shame.

Using Waivers and Releases Properly in Your Business or Ministry

What is the takeaway from the close encounter with the hair dryer cord?

• Have your waivers written in something that approximates English.

• Have your waivers state clearly what activities you are talking about—skiing, horseback riding, or chilling in the locker room.

• Recognize that waivers don’t always work, and have adequate insurance in place in case they don’t. Include the cost of litigating the case.

• While it is not clear in the court’s opinion what the plaintiff was asking for, her demand might have been less than the cost of taking a case through summary judgment and on to an appeal. Plus, now the case is going back to trial. Sometimes, a cost-benefit analysis will lead you to decide that it is better to pay early.

Is it worth using waivers or releases of liability? Yes, it is. Colorado law overall is friendly to waivers, and a well-drafted one can save a lot of trouble. Nothing works perfectly all the time, not even a waiver, but that doesn’t mean it’s worthless.

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¹ Stone v. Life Time Fitness, 15CA0598 (December 29, 2016).