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Maximize the Enforceability of Your Liability Waiver

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Paul R. Bedard, EsquirePaul R. Bedard, Esquire

The rise in legal claims against health clubs over the years has been staggering. At a minimum, every health club must have a sound risk management strategy to address key areas of legal liability. However, although a well-developed risk management strategy will dramatically decrease a club's legal exposure, unfortunately, it is a given that even the most well-managed health clubs have been or will be on the receiving end of a lawsuit at one time or another.

This article is intended for educational purposes only. It is not intended as legal advice. Widely varying laws specific to each jurisdiction prohibit one - size - fits - all recommendations. Please consider these comments as an educational guide to assist you when you consult your own attorney for specific direction.

A liability waiver is a fundamental tool designed to protect against these claims. Liability waivers are also known as exculpatory agreements. However, the enforceability of an exculpatory agreement is state-specific. Some courts will enforce such an agreement unless it releases a party from wanton or willful conduct. Other courts focus on whether the language within the waiver is clear and unambiguous. Certain jurisdictions hold that these clauses are simply invalid; others enforce them reluctantly while subjecting the agreement to close judicial scrutiny while construing the language against the drafting party.

A judge will typically decide the validity of the exculpatory agreement in question. However, in some places, the validity of an exculpatory agreement is constitutionally required to be a jury question. As can be seen, the many jurisdictional standards and variations involved make it painfully apparent that it is critical to understand your club's governing law and to engage counsel when drafting your liability waiver.

Although a liability waiver provides no guarantee against legal liability, the lack of a liability waiver is almost certainly guaranteed to increase a club's legal exposure. At a minimum, your liability waiver should bar claims due to negligence, identify the activities and inherent risks within your facility, describe the assumption of risk on the part of the guest or member, and contain clear and conspicuous language.

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