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Wednesday, September 25, 2013

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. Fitness International, LLC., 2013 IL App (1st) 121426, the plaintiff fell while using an “assisted dip/chin” exercise machine, a piece of fitness equipment with an adjustable bench.  Hussein was severely injured and was rendered a quadriplegic.  He sued, alleging that the fitness club was negligent in that it had failed to appropriately monitor, supervise, or instruct club members who use the equipment.
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.
Authored by Jim Rock.  Initially published in Ancel Glink's Local Government News (Fall 2013)


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