Court Upholds Waiver and Release Clause
A waiver and release clause in a fitness club’s membership
agreement was proper and enforceable, barring a man who was paralyzed in a
freak gym accident from suing for damages, an Illinois Court of Appeals
recently held. In Hussein v. L.A.
The trial court, however, granted the defendant’s motion to
dismiss because the membership agreement signed by Hussein included a release
and waiver of liability and indemnity.
On appeal, Hussein argued that the waiver should not be enforced because
it was confusing, it did not reflect the clear format and language required by
law, and it was not explained to him by L.A. Fitness representatives when he
signed the agreement.
The Court reviewed the case under Minnesota law, which is
where the plaintiff entered into the membership agreement, and found that Minnesota
and Illinois share “the same perspective” on exculpatory clauses.
In both states, the public interest in freedom to contract
is preserved by recognizing exculpatory clauses as valid, the Court said. And
while exculpatory clauses are not favored by the courts and are strictly
construed against the drafter, “if a clause lacks clarity or purports to
release a party from liability from intentional courts or willful or wanton
recklessness, then it will not be enforced,” the Court added.
In this case, the Court found that the waiver and release
language was unambiguous and that the fitness services offered to the plaintiff
were not essential services offered to him on a “take it or leave it”
basis. The Court found that Hussein’s
application for membership was voluntary, did not involve services that were of
great public importance or of a practical necessity, and he had agreed to the
terms that came with the membership.
Additionally, the Court did not accept Hussein’s argument
that the form was confusing or that L.A. Fitness representatives had a duty to
explain the waiver and release to him.
The agreement included language that the person who was signing it “has
read and understands the Agreement including the Release and Waiver of
Liability and Indemnity on the reverse side”.
The Court ruled that a person who signs a contract cannot invalidate the
agreement by claiming that he did not read it, and also found that the form
itself was not defective.
The Court recognized that this was a harsh result, based on
the severity of the plaintiff’s injuries, but found that the law dictated a
finding that this exculpatory clause was enforceable.
This case serves as a reminder to park districts and other
public bodies who operate fitness facilities that they should continue to
require their members and participants to sign waiver and release agreements
prior to allowing them to participate in fitness activities, as the courts will
uphold a properly drafted waiver. In addition,
the mere existence of a signed waiver and release may discourage a potential
plaintiff from considering litigation against the public body.
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