Business of Fitness: 8 Keys to Effective Liability Waivers
If you run a fitness or wellness business, or any other business in which potentially dangerous activities are involved, you need an effective liability waiver. Wondering what should be included? We came up with the mnemonic “EXERCISE” described below to help you remember 8 key points to an effective liability waiver.
Explain activities clearly
The activity itself (cycling, boxing, Pilates, etc.) is what forms the basis for having a liability waiver in the first place, so make sure participants know what they’re getting into. This not only helps to avoid any confusion about the specifics of the activity, but also helps to support the validity of the “assumption of risk” provision mentioned below.
X marks the spot
Make sure every participant signs the waiver prior to engaging in the activity. You can never be too careful when it comes to potentially being on the hook for accidents or injuries. You don’t want to find yourself in court trying to explain why you didn’t get something as simple as a signed waiver.
Evidence the assumption of risk
Include a statement in the wavier that (1) the activity is dangerous and involves the risk of serious injury, (2) the participant is knowingly and voluntarily choosing to participate in the activity, and (3) the participant is assuming full responsibility for any and all risks of participating in the activity.
Release is the magic word
A “release” effectively releases the company and its covered persons from all liability related to any loss, damage, or injury that participants may sustain in connection with their participation in the activity. It’s important to use the word “release”, and it’s often a good idea to also include a provision stating that the participant covenants not to sue the company and that the release covers any negligence of the company.
Cover the right people
In addition to the company and its affiliates, the waiver should cover directors, officers, employees, agents, instructors, and contractors. These are the people who are likely to be individually included in a lawsuit, so make sure the release covers them as well.
Indemnification may reduce risk
An indemnification provision states that the participant agrees to indemnify the company and its covered persons from losses incurred as a result of the participant’s participation in the activities. This is somewhat of an aggressive provision, but you should consider including it in the waiver as a way to reduce the risk of incurring losses.
You’re probably using social media to promote your brand, so consider including an affirmative statement whereby the participants acknowledge that they may be photographed and/or video recorded and an affirmative consent whereby the participants permit the studio to use their name, image, likeness, and appearance in the studio’s promotional activities.
Express statement of acknowledgement
Include a statement in the waiver whereby the participants expressly acknowledge that they have read and understood all of the terms and conditions of the waiver and that they are giving up legal rights in connection with their participation in the activity. This helps to protect against arguments that the participants didn’t have a reasonable opportunity to review the waiver or understand what was being signed.
Be aware that state laws sometimes limit the release and waiver of claims out of public policy concerns (e.g., some states won't uphold releases for a company's negligence, recklessness, or intentional misconduct). Also, while these points are generally standard across most fitness activities, you should tailor the waiver to the nature of your particular business.
Beyond the liability waiver, you should also protect yourself through other means, including by (1) conducting business through a legal entity (either a corporation or limited liability company), (2) obtaining sufficient insurance coverage, and (3) making sure that all instructors are properly trained and always practice safe teaching methods.
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