How to do the Liability Waiver Properly

As every Box owner knows, CrossFit is a strenuous and sometimes risky sport. Usually through no fault of the Box owner, members and guests sometimes are injured when working out and, in limited circumstances, can suffer bodily harm while being merely on the premises due to unforeseen circumstances.

Due to the potential liability that a Box owner can incur for individual injuries, valid and legally enforceable liability waiver provisions should be part of any Box guest waiver — for ‘drop-ins’ and those individuals that are trying the Box for the first time — and membership contract. To that effect, the following are some issues that should be addressed and included in any document that deals with release of liability and assumption of risk as it relates to a Box’s athlete.

1. It’s a legal document, so treat it as such. The waiver and release should be reviewed and signed/dated by the athlete before he or she commences the workout. If an injury occurs before the document is signed it generally will not be effective. Statements by Box personnel to the athlete, like “you don’t have to read it” or “we don’t enforce this stuff” is not conducive to limiting your liability.

As many Box owners know, most folks don’t read the waiver carefully. So as to preclude any subsequent assertion by the injured party, include the following at the top of the document: “THIS IS A LEGAL DOCUMENT. YOU SHOULD READ IT CAREFULLY.” Also, the following provision should be contained in the document as a separate paragraph in bold and capital letters:

“I HAVE BEEN GIVEN THE OPPORTUNITY TO CAREFULLY READ THIS RELEASE FROM LIABILITY AND ASSUMPTION OF RISK DOCUMENT. WHETHER OR NOT I ELECT TO DO SO IS MY RESPONSIBILITY AND DECISION AND SHALL NOT AFFECT THE VALIDITY OF THIS AGREEMENT, AND TO THAT EFFECT I INTEND IN ALL CIRCUMSTANCES AS NOTED HEREIN FOR IT TO BE LEGALLY BINDING FOR ANY AND ALL PARTICPATION THAT I MAY HAVE AT THE [BOX] FOR ANY AND ALL PROGRAMS AND WORKOUTS WHETHER NOW OF HEREINAFTER AT ANY TIME.”

Other issues that are overlooked include making sure the athlete dates it, the document itself is retained by the Box owner — a copy can be given to athlete if requested — making sure it is in a typed, easily readable format, and the legal and trading name of the Box (if applicable) is included as the contracting party.

2. Other language you should have:

•  Adequate Consideration. To assist in the enforceability of the release, language similar to the below should be included: “For good and adequate consideration, including but not limited to my being able to workout at the facility, I do hereby acknowledge all of the following as it relates to this release from liability and assumption of risk agreement (“the Agreement”), intending to be legally bound form this date forward and any and all             subsequent visits to the facility…”
• Medical Affirmation by the Athlete. The athlete should state that he or she is medically capable of the workouts and understands the potential for injury: “I hereby acknowledge that I should consult with my physician before beginning any exercise program, including any programs I participate in at [Box]. I certify that I am not aware of any medical condition which would render me unfit to participate in any exercise program and that I will inform [Box] immediately of any change in my medical condition. I am aware that there are significant risks involved in all aspects of physical training. I understand that the reaction of the heart, lungs and vascular system to exercise cannot always be predicted with accuracy. I understand that the programs and workouts offered by the [Box] are of a nature and kind that are extremely strenuous and can/may push me to the limits of my physical abilities and can be risky. I am aware that any of these above mentioned risks may result in serious injury or death to myself and/or my partner(s), and I assume full responsibility thereof. I authorize any representatives of the [Box] to obtain emergency medical treatment for me, including transportation to a hospital or other medical facility.”
• Specific Release Language. Language similar to the following should be contained in the document: “This Agreement includes, without limitation, my understanding and taking of sole responsibility for any and all injuries that may occur to myself and/or others related to any and all activities associated with [Box] programs (which includes all workouts related thereto) and instruction, even if not specifically set forth in this Agreement, whether or not they fall within the scope of reasonably foreseeable injuries related to such particular program, and whether or not undertaken in the [Box’s] presence. From this date forward, and for any and all subsequent visits to the [Box] facility, I expressly accept all responsibility for my health and any             results, injury or mishaps that may affect my well-being or health in any way which may occur as a result of (a) my use of any [Box] exercise equipment, [Box] products and [Box] facility amenities, (b) [Box] instruction or supervision, and (c) my slipping and/or falling while in the [Box] facility. I waive any claims, demands, causes of action or any claims for relief whatsoever against, and release the [Box] and its related parties as hereinafter noted from any and all liability, claims and/or causes of action that I may have for injuries or other damages arising out of participation in a [Box] program or workout as before-noted.”

To strengthen the protection created by the release and waiver of not only the Box itself but also its owners, Coaches and other parties, language similar to the below should be considered:

“FOR AN IN CONSIDERATION OF PERMITTING ME TO PARTICIPATE IN THE PROGRAM, AND INTERACT WITH THE TRAINERS AND FACILITY OF [Box], I, FOR MYSELF AND FOR MY HEIRS, BENEFICIARIES, EXECUTORS, SUCCESSORS AND ASSIGNS, HEREBY RELEASE AND FOREVER DISCHARGE [Box], ITS OWNERS, OFFICERS, MEMBERS, MANAGERS, EMPLOYEES, INDEPENDENT CONTRACTORS, AGENTS, ATTORNEYS, VOLUNTEERS, INSURERS, SUCCESSORS AND ASSIGNS (COLLECTIVELY, “[Box] PARTIES”), FROM ANY AND ALL CLAIMS, DEMANDS, DAMAGES, LOSSES, LIABILITIES, RIGHTS, ACTIONS, CAUSES OF ACTION, EXPENSES, AND SUITS OF ANY KIND WHATSOEVER, FORESEEN OR UNFORESEEN, FOR PERSONAL INJURY, WRONGFUL DEATH, DAMAGE TO PROPERTY, OR OTHERWISE RESULTING FROM MY PARTICIPATION IN ANY WORKOUT AND/OR THE ACTS OR OMISSIONS OF THE [Box] PARTIES, INCLUDING ANY AND ALL NEGLIGENT ACTS, WHETHER ACTIVE OR PASSIVE, IRRESPECTIVE OR WHETHER SUCH INJURIES, DEATH OR DAMAGES OCCUR PRIOR TO, DURING OR AFTER THE PROGRAM.” ­

3. Other issues. Provisions relating to the athlete agreeing to follow all Box rules and regulations, acknowledgement by the athlete he or she is solely responsible for any guests that come to the facility that do not workout (i.e. spouse or children), and the fact the Box does guarantee the protection of the athlete’s personal items can also be included in the document. Also if the athlete is under the age of 18, his or her parent or other legal guardian should execute the agreement on behalf of the minor with the minor’ name being specifically stated in the document.

Summary

Even though all Boxes have personal and property liability insurance, a properly executed release of liability and assumption of risk agreement can help minimize and decrease the risk of the Box and its owners from lawsuits brought by an athlete that is hurt while on or around the Box premises. We all are excited when a new person comes to visit or joins our Box, but don’t let that excitement turn into a nightmare because you didn’t take the time to have a release and waiver agreement properly drafted and signed.

This literature has been developed by Del Duca Law Offices to provide general information about the topic discussed. The information discussed is not intended to create, and do not create, an attorney-client relationship or representation regarding any potential engagement. Readers should not act upon these materials without seeking professional counsel.