Right Waiver? No Problem. Wrong Waiver? Problem.

In the summer of 2008, Makimba Mimms, a former Navy information systems technician, sued a Manassas, Virginia gym alleging that he sustained permanent disabilities in the form of rhabdomydysis (very rapid breakdown of muscle fibers) as a result of performing a “Crossfit” workout in 2005 involving timed, high intensity strength training with little to no rest in between sets. Mimms, who claimed damages in over $500,000 against the gym, a “Crossfit” affiliate, and a gym employee who administered the workout, was ultimately awarded $300,000 by a Prince William County Virginia jury.

With the rising popularity of the recent wave of “Crossfit” and boot camp-style workouts comes great risk to gyms and fitness centers that host these high intensity exercises. This scenario, of course, is not solely limited to fitness centers but also extends to many other invitee situations where the very real possibility of harm or injury is an ever present looming danger.  Consequently, those who find themselves in similar situations where they are legally responsible for the safeguarding of other’s safety may find themselves confronted with the issue  of how they can protect themselves from being sued. Therefore, the question becomes how a business operator or owner can protect herself, and her employees, from lawsuits similar to that brought by Makimba Mimms.

Under Florida law, exculpatory clauses which limit or even exempt liability for negligence are enforceable provided they meet the necessary requirements.  See Sunny Isles Marina, Inc. v. Adulami, 706 So. 2d 920 (Fla. 3d DCA 1998).  While exculpatory clauses seeking to relieve a party from his own negligence are strictly construed against the party claiming relief from liability, the Florida Supreme Court has upheld these clauses as valid and enforceable where “the intent is clearly and unequivocally stated” in the agreement.  University Plaza Shopping Center v. Stewart, 272 So. 2d 507, 511 (Fla. 1973); see also Sunny Isles Marina, 706 So. 2d at 922.

With that being said, what should be included in this all-important Waiver?  For a Waiver to be valid and enforceable, several components should be incorporated, with the first and foremost being the exculpatory clause.  Naturally, in the case of a gym or fitness center, one would want protection from “any and all claims” arising from one’s own active or passive negligence including that of one’s employees.  However, the possibility arises where protection from “any and all claims” really does not encompass “any and all claims.”

It is never presumed that a contract is intended to protect one against one’s own negligence, and unless the agreement clearly so states, the courts will hold that such was not the intention. Smith v. Ryan, 142 So. 2d 139, 141 (Fla. 2d DCA 1962); see also University Plaza Shopping Center, Inc. v. Stewart, 272 So. 2d 507 (Fla. 1973).   In University, a landlord was sued for wrongful death that occurred when a gas line beneath a barber shop leased by a tenant exploded. The landlord filed a third party complaint against the tenant and its insurer for indemnity basing his action upon the lease agreement containing an indemnity provision which read, in pertinent part:

“SECTION II. INDEMNITY-LIABILITY INSURANCE. Tenant shall indemnify and save harmless the Landlord from and against any and all claims for damages to goods, wares, merchandise and property in and about the demised premises and from and against any and all claims for any personal injury or loss of life in and about the demised premises.” Id. at 508-509.

The central issue presented was whether a contract of indemnity, when stated in general terms of “any and all claims,” indemnifies the indemnitee for damages resulting from his sole negligence.  Id. at 510. In recognizing that a contract for indemnity will not be construed to indemnify the indemnitee against losses resulting from his own negligent acts unless such intention is expressed in clear and unequivocal terms, the Supreme Court held that simply using general terms such as “any and all claims” does not disclose an intention to indemnify for consequences arising solely from the negligence of the indemnitee. Id. at 511.

Thus, for these clauses to be effective, they must clearly state the intention to release the party from liability for his or her own negligence. Van Tuyn v. Zurich American Insurance Co., 447 So. 2d 318, 320 (Fla. 4th DCA 1984); see also Banfield v. Louis, 589 So. 2d 441 (Fla. 4th DCA 1991)(holding that an exculpatory clause stating, “I understand that this waiver includes any claims based on negligence, action or inaction of the above parties,” was clear and unequivocal to release the defendant from their own negligence and bar plaintiff’s recovery).  In Van Tuyn, the Court was presented with the task of determining the enforceability of a waiver signed by a patron who was injured as a result of riding a mechanical bull at a country western bar.  The waiver provided, in part:

“I hereby voluntarily assume any and all risk, including injury to my person and property which may be caused as a result of my riding or attempting to ride this Bucking Brama Bull.” Id. at 320.

In determining that this waiver did not protect the defendants from liability for their own negligence, the court emphasized and reiterated that, for such a clause to be valid and enforceable, it must so clearly state that it releases the party from liability for its own negligence. Id. The court held that “the agreement being reviewed is devoid of any language manifesting the intent to either release or indemnify Club Dallas…for its own negligence.” Id. In response to the defendant’s argument that there was an express assumption of the risk present to preclude the plaintiff’s recovery, the court rejected that line of reasoning since, for express assumption of risk to be valid, it must be clear that the plaintiff understood that she was assuming the particular conduct by the defendants which caused her injury. Id. at 320 and 321.

Additionally, Florida courts have even upheld agreements that attempted to release business owners from liability for their actions that constituted gross negligence. For example, in Theis, II v. J&J Racing Promotions, 571 So. 2d 92 (Fla. 2d DCA 1990), the personal representative of a race car driver’s estate brought an action against the racetrack operators after the decedent was killed in a racing accident.  The essential issue put forward for the Court’s determination was whether the release and waiver signed by the decedent was “clear, unambiguous, unequivocal, broad enough and specific enough” to protect the racetrack owner from liability for his own negligence, even if his actions constituted “gross negligence.” Id. at 93.  The release and waiver, including the assumption of risk clause, stated that the “releasees” would be released “from all liability” to the undersigned “whether caused by the negligence of the releasees or otherwise.” Id.  Therefore, since the term “negligence” was used in the release, and because it was not limited in scope, it “must be construed as intended to encompass all forms of negligence, simple or gross.” Id. at 94 (However, the Court noted that only intentional torts are not held subject to such an exculpatory clause. See L. Luria & Son, Inc. v. Honeywell, Inc., 460 So. 2d 521 (Fla. 4th DCA 1984).)

The ruling in J&J Racing can be distinguished from the holding in Sunny Isles Marina, Inc. v. Adulami, 706 So. 2d 920 (Fla. 3d DCA 1998), where the court did not uphold an exculpatory clause where there existed ambiguous and contradictory language.  In this case, the court was presented with the issue of whether exculpatory provisions contained in the boat storage agreements between Sunny Isles Marina and boat owners were enforceable so as to absolve the marina from all claims of negligence.  In answering this question, the court looked to two different provisions that were contained in the agreement (provided below in pertinent part):

“7. RISK OF LOSS….The Marina shall not be liable in any way for any loss or damage sustained by Owner…which arises out of any cause not attributable to the willful gross negligence of the Marina…

8. INDEMNIFICATION. The Owner hereby waives any right it has to claim any damages or other loss or liability from the Marina, its employees or agents arising out of any accident, fire or other casualty about the Marina, whether the same results from any act or neglect of the Marina…” Id. at 921.

In its analysis, the court noted an ambiguity between paragraphs 7 and 8 as set forth above.  While, on one hand, paragraph 7 purported to absolve the Marina of liability for any action except “willful gross negligence,” paragraph 8 attempted to absolve the Marina from “any” form of negligence. Id. at 922.  Therefore, the court found that an “ordinary and knowledgeable party” would not know what he or she is contracting away and did not uphold the agreement. Id.

Finally, courts have looked to the objective appearance of the actual, printed exculpatory clause itself in determining the enforceability of an executed waiver and release.  See DeBoer v. Florida Offroaders Driver’s Ass’n., Inc, 622 So. 2d 1134 (Fla. 5th DCA 1993)(Where the court held that a reasonable person would have heeded a warning in a release to stay out of a restricted area where the release was printed in at least eight point type and bold print and/or caps identified the document as a release, waiver, indemnification and assumption of risk agreement).

A specific example of this analysis in the context of a high-liability exercise facility such as a crossfit gym can be found in the case of Quintana v. Crossfit Dallas, LLC, 347 SW 3d 445 (Tex. App. Dallas 2011).  Though it is not a Florida case, the same rules of law and factors apply.  Plaintiff Kimberly Quintana sued her personal trainer, Troy Dodson, and Crossfit Dallas for negligence, breach of warranty and breach of contract after she was injured during a crossfit exercise.  Quintana alleges that she was injured as a result of her trainer’s failure to supervise her, causing her to endure surgery and over $84,000 in damages.  While Quintana admittedly signed a release and waiver, she argued against its validity and enforcement.  Her first argument concerned the “conspicuousness” of the release.  Pursuant to Texas law, before a party can release away, or shift, his own negligence, he must provide “fair notice” by satisfying the requirements of conspicuousness and the express negligence rule. Id. at 450. For a provision to be “conspicuous,” it must be written or displayed in a way that a reasonable person against which it is to operate ought to have noticed it by being incorporated in a “heading in capitals equal to or greater in size than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same or lesser size” and “language in the body of a record or display in larger type than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same size or set off from surrounding text.” Id. While Quintana argued that the release did not meet these requirements, the Court disagreed.  In its discussion, the Court noted that the word “Release” was near the top of the second page, appeared in larger type than any other text on the document and was bolded.  Id. at 451. Additionally, the text contained three paragraphs and Quintana had initialed the document.  Id. at 451.

Quintana’s last argument against the validity of the release concerned its compliance with the express negligence rule.  In order for a party to be released from its own future negligence, it must express that intent in clear, unambiguous terms within the 4 corners of the contract. Id. at 450. Quintana argued that the present release was too vague, broad and ambiguous to provide fair notice.  However, the Court once again disagreed with Quintana.  Instead, the Court pointed to the fact that the release specifically stated that the participant “assumes any and all liability” for “damages of any kind” “allegedly attributed to the negligent acts or omissions” of the Crossfit facility and its employees.  Id. at 452. Therefore, the Court concluded that the release did satisfy the requirements of the express negligence rule.

In conclusion, while the widely admired catch-all phrase of “any and all” may in truth not be sufficient to exculpate one from any and all liability caused through his own negligence, there are numerous ways to circumvent this undesirable result as discussed above.  First, require your patron or member to read and sign the agreement.  Secondly, ensure that your waiver complies with the Florida requirement of “clear and unequivocal” language manifesting the intent to release liability.  Thirdly, make sure to include the use of the words “active or passive negligence” or even language including “gross negligence.” Additionally, also be sure to include exculpatory language regarding the negligence of the signing party, your employees, other patrons and, in the case of a fitness center, your exercise equipment.  Finally, do not be afraid to include a list of exceptionable medical conditions or injuries, even death, that may occur as a result of participating in certain activities.  The main and underlying objective is to explicitly express a clear intention to contract to a release of your liability in a way that is easily understandable to the “reasonable person” signing away his right to hold you liable for actions that may or may not be directly caused by your own negligence. Only then can one begin to protect oneself from another Makimba Mimms situation.


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