Hypothetical situation: Halfway through a WOD, one of your members attempts a heavy back squat. When he tries to stand up, he hurts himself. Thank goodness he signed a waiver release form, right?
Newsflash: Simply because members signed a waiver does not mean an Affiliate is safe from being sued.
First, the language of the waiver might be too nonspecific. In the 1992 Virginia court case, Hiett v. Lake Barcroft Assoc., the court ruled that a pre-injury liability release signed by a triathlon participant who was injured during the race was too broad in language. Therefore, the liability release wasn’t enforced.
Or, members might not have had enough time to read and process the waiver. In the Maryland case of Barber v. Eastern Karting Co., the court addressed a liability waiver signed by a participant at a go-karting event. Because the waivers were only available upon arrival, the court decided that participants weren’t given adequate time to read and comprehend the waiver.
Adam Van Grack, an attorney and one of the managing members of Longman & Van Grack LLC in Maryland, said every organization should require its members to sign a waiver and a release of liability. But, a signed waiver does not ensure the court will side with you. “Different states interpret things differently, so you want to make sure that you have an attorney who knows the law enough to say, ‘OK, in your situation, this is the content you want in your release, and this is how you will want to make sure your releases are agreed to by your potential clients,’” said Van Grack.
He suggested every Box owner meet with an attorney who can draft a relevant waiver specific to the state. Because state laws can change, he advised meeting annually with the attorney. “A helpful attorney will check back with clients when there are changes of law, but a good client will also circle back with their attorneys,” he said.
A well-written form also has different sections, according to Van Grack. “When I’m drafting a solid form for a client, you will see multiple sections,” he said. “You will often need multiple sections because one of the things the courts will look to is how clear the language is.’”
Monique Ames, the owner of CrossFit Evolution in Longwood, Florida, uses the same waiver CrossFit HQ had her sign when she Affiliated in 2007, but modified. Ames split the waiver into two separate forms: a release of liability waiver, including every possible activity that a member might try, and an intake questionnaire. In Ames’ opinion, both are equally important.
In addition, Ames avoids the same plight as the go-kart company by offering a free, hour-long intro with every new client. During the introduction, she goes over the waiver and intake form, discusses pre-existing injuries, and sets up a routine for clients. “If they did have something wrong with them, then they injure themselves, it’s going to be a lot harder for them to sue me,” said Ames.
Kevin Ellison, the Affiliate of CrossFit Salt, in Brunswick, Georgia, said drop-ins are the most difficult to collect waivers from. To solve this, Ellison said he posts the waiver on the Box’s website and requests that visitors and new members read it, print it and bring it in signed. That way, they have plenty of time to read it thoroughly. “The last thing you want to do is stop everything you’re doing and go get a waiver for a drop-in to sign,” he said. “A lot of [Affiliates] use software. The best thing I’ve been able to do is attach it to my website.”
If a potential member hasn’t signed the waiver and gone through the intro with Ames, she won’t even give them a tour of the Box. “Absolutely do not let them touch your stuff,” she said. “Especially for walk-ins that come in with kids … you always have to tell the parents, ‘Your kids can’t play on the equipment without signing a waiver.’”
So, while you tend to the injured member, have faith in your waiver and attorney. “There’s no way to ever know what a court is going to say because courts will do what courts will do,” said Van Grack. “But what you can do is know what the law is, if there’s any specifics to that area, and also know what the case law is and how courts have interpreted in that state.”