Cave Canem wrote:Ed Zachary wrote:Das Night mensch is correct.
A waiver isn't a shield against negligence.
In this case, it was. And it was upheld on appeal. And as much as I hate @fit HQ, not all (many but not all) the individual gym owners are mind numbed robotic swine. Without more details of the case, it is wrong to speculate that it was the result of negligence even though negligence was alleged. Negligence is always alleged when someone wants a payoff. This person fell and broke her arm, for all anyone really knows, she could have tripped on her own fat feet on her way to the rest room.
And at least this owner was smart enough to have all his legal ducks in a row with a comprehensive signed waiver and health assessment. The first @fit box I walked into, the only thing I had to sign was a check.
This could happen to anyone who trains people for a living whether they have a PhD in exercise science or are just some schmuck with a 2 day seminar certification. In fact the PhD might be held to a higher standard based on their education.
I'll try to add a little to this. I know the jurisdiction, the judges, and the firm who defended teh box.
First of all, this case was filed in district court in Colin County, Texas, then taken up before the Texas Court of Appeals--Dallas district. Without knowing anything about the lawsuit, you can assume the plaintiff is going to fucked. That's how it is here.
Second, it sounds like Quintana is a fat black woman. This does not bode well for her in front of a Colin County jury.
Third, it looks like Quintana's lawyer is decent. Looking at the
docket sheet, he got most of what he needed. He fell apart a bit at the end. As a plaintiff's lawyer, you don't want to agree to a scheduling order (setting dates and deadlines) and then ask for more time less than a week before trial. Then he screwed up his appellate brief the first time around and nearly got thrown out. That might be a payment issue with his client, though.
Now for the nuts and bolts. At common law, you can't consent to someone's potential negligence. But Texas ain't the common law. A gym provides fair notice and can be insulated from negligence if the items in the waiver are 1) "conspicuous" (big letter, caps, etc.) and 2) contain an express statement that the gym clearly intends to be released from potential negligence. This is not the same thing as fair notice of potential injury or specific acts of negligence. Basically you could write, "Our employees are @F certified, which means they don't know shit and will possibly injure, maim, or kill you. You agree, by your signature, that you cannot sue us for the negligence of these untrained assholes." That would hold up. Seriously.
04/14/2009 Notice
of Intention to Take Depo by Written Questions/Endocrine Associates
Hmmm...