Gym contract liability disclaimer?

[DJLagain]

Jurisdiction

California

Greetings. I'm not sure whether this question should be under consumer law/contracts/warranties or liability. Assuming consumer law/contracts/warranties is the right place for it, I have a question. The gym I was planning to join until I read the contract has an onerous disclaimer of liability. Here's the paragraph:

"In consideration of being allowed to participate in the fitness activities and weight-loss programs of Gym and to use its facilities, equipment, machinery, and mats, subject only to the statutory rights and implied warranties which cannot be excluded, I do hereby waive, release and forever discharge Gym and their officers, affiliates, subsidiaries, agents, employees, representatives, executors and all others from any and all responsibilities or liabilities from injuries or damages arising out of or connected with my attendance and/or participation at Gym, including my participation in all fitness and weight-loss activities, my use of equipment and/or machinery, passive, or active, any omission or commission, including any liability arising the from [typo in original] negligence of a Gym representative.

[The next paragraph goes on to make gym members liable for exactly the things for which the first paragraph makes the gym not liable, but that's a discussion for a different day.]

It seems grossly unfair to me that the gym disclaims liability for its own negligence, but my question is whether this would hold up in a lawsuit if I were injured due to the gym's negligence. There are some weasel words ("subject only to the statutory rights and implied warranties which cannot be excluded") that make me think they know they're reaching for the stars. What is the reality? What does statutory rights and implied warranties mean? Also, as a topic for general discussion, what as a society can we do to limit this kind of anti-consumer overreach? Thanks much. --Dan

 

[adjusterjack]

Assuming consumer law/contracts/warranties is the right place for it, I have a question.

It's the right place. We all read all the forums anyway.

It seems grossly unfair to me that the gym disclaims liability for its own negligence, but my question is whether this would hold up in a lawsuit if I were injured due to the gym's negligence.

Maybe not. But do you really want to take the chance that when you are permanently crippled the gym wins on that point?

Also, as a topic for general discussion, what as a society can we do to limit this kind of anti-consumer overreach?

"General discussions" don't butter any parsnips, but I'll comment anyway.

As a "society" we can do nothing about this kind of anti-consumer overreach.

As an individual, we can protect ourselves by walking away from contracts with onerous terms and that's what I suggest you do. Self-preservation is nobody's business but your own.

 

[Zigner]

It seems grossly unfair to me that the gym disclaims liability for its own negligence...

It's not meant to be fair to you. You are under no obligation to sign the contract and utilize their services. There are tons of gyms out there.

 

[Tax Counsel]

What is the reality?

The reality is that these kinds of agreements are effective to shield the business from liability in some situations but not in others. One has to review the applicable state court decisions to see where the line is in that state.

Most contracts don't carry that kind of exclusion. But it is very common in services that involve physical activity by the customer or products/services for human use on the body: ski lift tickets, skating rink admissions, gyms and weight loss programs, sports programs, tattoo parlors, cosmetic workshops, and the like. An increased of injury is inherent in these kinds of businesses and they want to limit their exposure to the extent possible to keep their insurance costs reasonable.

What does statutory rights and implied warranties mean?

Express warranties are those that are explicitly stated in federal or state law, or in the contract between the parties. Implied warranties are warranties that are implied by the nature of the transaction. For example, in the sale of new goods there is generally an implied warranty that the item is fit for the typical use for which it was designed.

Also, as a topic for general discussion, what as a society can we do to limit this kind of anti-consumer overreach? Thanks much. --Dan

Lobby Congress and your state legislatures to bar these kinds of provisions in contracts. Just be aware that the result of doing that will be a general increase in prices as the premiums for insurance businesses pay to cover acts of negligence would go up as more claims start coming in. And, as others suggested, simply walk away from the contract and tell the business that it was that contract clause that cost them your business. If that happens enough, businesses will change their policies.

 

[DJLagain]

Thank you all, for your comments.

"...simply walk away from the contract and tell the business that it was that contract clause that cost them your business..."


This happens to be a small gym owned by one person, and I could do that. But most gyms are owned by big corporations that individuals can only communicate with via lawsuits. I've since checked contracts for several large gym chains and they all have equally one-sided contracts (or worse). Like Bob Marley said, "How many rivers do we have to cross to talk to the boss?" That's why we have legislation, to make things less unequal. In theory....


Curiously, when I went to tour the gym, the owner (it's a small place owned by one person) had just returned after three weeks recuperating from an injury sustained while helping a member work out. The other clauses of the contract might make the member responsible for the injuries sustained by the owner in that situation. Thanks again. --Dan