Management Matters

Risk Management BY DAVID L. HERBERT, J.D.

Gross Negligence Claims and Releases

Lawyers are finding ways
around waivers that have
worked to protect fitness
centers in the past.
FITNESS CENTERS are increas-
ingly using prospectively executed
releases/waivers to defend against
claims put forth by users of their
facilities to bar successful claims
and suits. When they have been
used to bar so-called ordinary
negligence allegations, and where
they have been properly worded
and administered, these docu-
ments have generally been given
legal force in most states to bar
successful claim and suit — even
in the face of claims that users did
not read them, understand them
or interpret them to bar their own
particular claim or situation.

Skirting around a waiver

DAVID L. HERBERT, J.D., is
senior partner at Herbert &
Benson, Attorneys at Law,
Canton, Ohio.
In those states where these
releases are recognized and not
prohibited, such documents have
been effective in reducing the
number of verdicts and judg-
ments against facilities. However,
to the extent that these contract-
type documents have been
enforced by the courts, facility
users and their lawyers have
looked for alternative claims to
assert based on particular kinds
of conduct. In this regard, claims
of gross negligence or even
intentional or willful conduct
may be put forth against some
facilities in order to avoid the bar
provided by enforceable release
documents that withstand ordi-
nary negligence claims. These
release documents — on public
policy grounds — may not be
used to bar claims related to
more culpable conduct than
ordinary negligence.
For example, in a recent court
ruling from a Chicago, Ill., trial
court, the plaintiff, as personal
representative of the estate of a
deceased facility user, filed suit
against the defendant facility
based on the claim that the facil-
ity should have had an AED in its
facility to respond to the heart
attack the plaintiff experienced
while exercising at the fitness
center in November 2005. Six sep-
arate claims were asserted against
the facility, including negligence,
gross negligence, fraud and breach
of warranties.
In response to a defense
motion to dismiss the case, the
court determined that a prospec-
tively executed release that the
decedent signed barred the negli-
gence claim. However, the court
also ruled that the release could
not bar the claim of gross negli-
gence. As a consequence, and
based on that one cause of action
described in a series of allegations
asserting gross negligence, the case
against the facility will go forward.
While the mere allegations of
a pleading are all that is consid-
ered on a motion to dismiss — as
opposed to any determination
based on evidence that is actually
presented later at trial — the
court ruled that the plaintiff’s
“allegations … more than met”
the required burden to present a
claim of gross negligence, subject
to the presentation of later evi-
dence. Consequently, even though
the court ruled against the plain-
tiff on all claims except the one for
gross negligence, the case will pro-
ceed on that basis.
Protecting your facility
Due to rulings like this one,
and based on the fact that
prospectively executed releases of
liability cannot bar claims of gross
negligence, facilities may well face
more similar claims in the future,
some of which may go to trial.
The use of waivers and releases,
coupled with vigilant adherence to
the developing standards of care,
may well be the best path for facil-
ities to follow to avoid successful
claims and suits. FM

50 FITNESS MANAGEMENT • AUGUST 2008 www.fitnessmanagement.com