The Importance of a Good Liability Waiver for your In-Person and On-Line Fitness Classes
Are liability waivers even worth the paper they’re written on? Wait. Are they even written on paper? Do you have a fuzzy memory of giving your cell phone to a student right before a class so that they barely have time to quickly scroll to the bottom and finger-scribble something that may or may not resemble their name? If that’s your technique, then no, they’re not worth much. BUT, if drafted and used properly, they can potentially save your hide, your business, and your bank account.
If you’re in the fitness industry, whether throwing your own classes or working for a studio, you’re probably aware of liability waivers. You may have even joked about the liability waiver just before telling your class about the killer squat sequence coming up. But no joke, they can be a really good layer of protection should you be sued by someone in that class. But , they’re not an impenetrable guarantee, details are important, and state laws vary.
Liability waivers essentially serve two legal purposes. First, they can serve as a legal exculpation for a future injury caused by your simple negligence. Second, they can warn your class or client of inherent risks associated with the activity, which sets up what is known as an ‘assumption of the risk’ defense to a later tort action against you. Basically, if someone sues you for an injury, the liability waiver can be used to either get the suit dismissed, or at least mitigate the damages. As a contract, their validity and use will be considered under state law, which means that laws vary state by state.
The good news is that about 45 states will uphold and well-drafted and properly executed (signed) liability wavier, at least with respect to an adult. The other five states, like Connecticut and Montana, consider them against public policy. But you should use them. But, the key words there were “well-drafted and properly executed.” Because they are not a guarantee, you should consider them a layer in your protection, along with having the proper insurance and forming an LLC.
Well-Drafted Although it may be tempting to just use something you find off the internet or the default electronic document your scheduling software offers, the words can actually make or break your defense to a lawsuit. A court may find a waiver unenforceable if the language is unclear or ambiguous. You will want the terms in there to be clear, specific to your type of class or workout and the inherent dangers, and not have any conflicting language, either within itself or with any other document the student or client is signing. I would suggest it be a separate document and not just language used at the end of a membership agreement.
If you’re using the waiver for in-person classes, you should now be including language about the inherent risks of COVID-19 and other sneaky little virus or communicable disease. If you’re taking your classes on-line, it would be wise to include language to cover the fact that there is no longer an instructor checking on form, giving live feedback and you don’t have any control over the equipment they’re using. When you said box jump, you did not mean jump on that glass coffee table, right?
Properly Executed And now let’s talk about getting it signed. I know in this age of the internet, tablets, iPhones, apps, scheduling software and electronic signatures, it’s easy to think that quick mindless finger scribble you get before a class will cut it, but it doesn’t. A Gold’s Gym in California recently learned this the hard way when it couldn’t prove that an injured customer actually signed the waiver during her membership sign-up. Procedures count.
If using an on-line or electronic form, make sure it’s a method that requires the signing party to actually have to scroll through the document before signing. Try to use at least a larger tablet and not a phone where the print is probably so small that it risks a court finding that it was unreadable. Try to find a method that actually captures their signature or an e-signature, not just a check mark. After they sign it, give them a physical copy of the signed agreement or email them a copy so that you could later prove that they received it.
So, the moral of the story is that liability waivers should not be taken lightly. Take the time to understand not only the document they’re signing, but how they’re signing, how you’re keeping a record of what they’re signing, and how you’re keeping it up to date. Remember, it’s not a total guarantee, so consider it an addition to a good insurance policy and possibly forming an LLC or a corporation.
If you have a need for solid liability waiver, I have a good one for sale in my template shop. It includes language for COVID-19 and other communicable diseases as well as special language for this new age of online classes.
In my next post, I’ll discuss liability waivers and children. So stay tuned for that.
**The information in this post is for general information purposes only. It is not intended or meant to be legal, financial or other professional advice. Neither Megan Green nor Megan Green LLC is intending to create and attorney-client relationship with you. You are encouraged to seek out the advice of legal counsel or other professional advice before acting or refraining from acting based on the content contained on the Site. Megan Green LLC assumes no responsibility for errors or omission in the contents on the Site.