Whether you go to a fitness facility, use a golf cart at the golf course, take your children to a bounce house facility, or some other type of business where you run the risk of getting injured, you will likely be required to sign some type of waiver or release. There are generally two types of waivers or releases. One is for a release of past injuries, and the other is for a release of future or prospective injuries.

A Release for past injury and damages is the type of document that will be signed at the end of a personal injury case. The injured party generally accepts a monetary payment to settle his or her claim. The language contained in the Release will prevent the injured party from bringing another claim or action against the responsible party and his or her insurance company stating that no matter what happens in the future they won’t be sued again for those injuries. These types of Releases are generally upheld by the courts.

A Release for prospective injury concerns an injury that may occur in the future. These types of Releases may or may not be upheld by the courts, depending on the specific circumstances surrounding the Release. Generally, these types of Releases are a deterrent to litigation, and they usually contain clauses which state that if a lawsuit is filed the prevailing party will be entitled to Attorneys’ fees and costs incurred during the litigation process.

In order for a Release to be effective, it must be easy to read and must be readily noticed within the membership or use of facility contract. The general rule is that if must be in larger type than the rest of the contract and that it must be in bold face type. It should not be hidden in a contract. A lay person, with normal vision should be able to easily find and notice the Release language in the contract. The waiver of legal rights cannot be hidden in fine print. The language cannot be ambiguous. If there are ambiguities in the Release language, the ambiguities will be construed against the party that drafted it. The staff employee signing up the member should explain the Release language of the contract.

Whether the Release is clear and unambiguous is a question of law. This means that the judge rather than the jury determines this issue. If the Release absolves the facility from “negligence”, every act of negligence of the fitness facility need not be spelled out in the contract, because it is virtually impossible to list all possible cause of accidents.

Still, Releases that attempt to waive negligence on the part of a facility are generally not upheld. The main issue involved with Release cases is whether the particular risk of injury is inherent in the member’s general use of the fitness facility, as opposed to the maintenance of the facility. Releases are generally upheld if the injury occurs out of the member’s use of the facility (the member drops a weight on their foot). There is a better chance of prevailing, regardless of the Release, if the member is injured by a negligent maintenance of the facility. Another example would include if someone was driving a golf cart owned by the golf course and the tire inexplicably blows resulting in the loss of the control of the cart and subsequent injury. If the tire and cart were not properly maintained, that would potentially constitute negligence on the part of the golf course, and any Release would be invalid. Simply stated, negligence is extremely difficult to waive.

As a result, a fitness, recreational, or sports facility Release is not always a bar to recovery for an injured party.

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