Gym Waivers and Treadmill Injuries: What Ohio Courts Will and Won't Enforce

Published December 28, 2010 · Ohio Appeals Courts

Every January, thousands of people in the Dayton area sign up at a fitness center. Somewhere in the membership paperwork is a paragraph saying the gym is not responsible if you get hurt. Most people sign it without reading it, and most never need to think about it again. The ones who do are the ones who end up on the floor next to a treadmill with a broken bone.

A decision from the Seventh District Court of Appeals earlier this month, Hague v. Summit Acres Skilled Nursing & Rehab., 2010-Ohio-6404, decided December 17, 2010, is a useful guide to how Ohio courts handle those cases. It contains good news about waivers and bad news about a defense called assumption of the risk, and anyone hurt at a gym, a climbing wall, a trampoline park, or a rec center should understand both.

What happened

Ruth Hague, 67, renewed a membership at a fitness center in Noble County in 2008. She had been a member years earlier, in 2003. On her first day back, no staff member was in the exercise room. She stepped onto a treadmill she had not used before, pressed a button, walked for about a minute, and then, according to her testimony, the machine jerked and sped up. She said she hit what she thought was the stop button fifteen times, called for help, lost her footing, and hung onto the front rail for more than two minutes before letting go. She broke both shoulders and spent a long period in rehabilitation.

When she signed up, she had signed this release: "I agree that by using the fitness center, I am responsible for my actions. I agree that summit acres, inc. Is not liable for any injuries that I might receive by my use of the fitness center." The trial court held that the release barred her claim and granted summary judgment to the fitness center.

The good news: vague waivers are not enforced

The court of appeals disagreed with the trial court about the release. Ohio law, the court explained, does not favor releases from liability for future negligence and reads them narrowly. As the opinion put it, "Releases from liability for future tortious conduct are generally not favored by the law and are narrowly construed."

That does not mean waivers are never enforced. Courts routinely uphold them when they are clear about what is being released and who is being released. A release that says in plain words that the member gives up claims for the gym's own negligence, and names the gym and its employees, will generally hold up.

The release Ruth Hague signed did none of that. It did not use the word "release." It did not use the word "negligence." It did not identify the people or company being protected. It said only that the business was "not liable for any injuries" from use of the fitness center. Surveying decisions from around the state, the court concluded that this kind of general language is too ambiguous to bar a negligence claim as a matter of law, and that what the parties actually intended would be a question for a jury.

A boilerplate "use at your own risk" clause is not a get-out-of-court-free card.

The bad news: assumption of the risk

The court then affirmed the judgment against Mrs. Hague anyway, on a different ground the fitness center had raised but the trial court had not reached: primary assumption of the risk.

Primary assumption of the risk is a judge-made doctrine, applied mostly to sports and recreation, that says a defendant owes no duty to protect a participant from the risks inherent in an activity. If the risk cannot be eliminated without changing the activity itself, the participant is held to have accepted it, whether or not she subjectively thought about it. The doctrine was the subject of the prison football case I wrote about in September, where the Court of Claims declined to apply it. Here the appeals court applied it.

The court found that falling from a treadmill is an inherent risk of using one, and that nothing in the record took Mrs. Hague's case outside the doctrine. She had used treadmills before, including one at this facility and one at her daughter's house. She knew treadmills differ from one another. She knew from her earlier membership that the exercise room was unsupervised. The manufacturer's instructions and warning signs were posted next to the machine, even though she did not read them. She did not claim the treadmill malfunctioned. And the release, even though too vague to waive negligence, at least put her on notice that the center meant to limit its liability for her own actions.

The court contrasted two Fifth District cases that went the other way. In one, a rehabilitation patient using a treadmill under medical supervision was hurt on a machine whose side rails had been removed contrary to the manufacturer's manual; the court there held the doctrine did not apply to a supervised medical facility using defective equipment. In the other, a first-time user fell after a fitness center employee had undertaken to program the machine and instruct her, and the court held that once the employee undertook to instruct, she had to do it with reasonable care. Neither situation was present in Mrs. Hague's case.

What separates a winning gym case from a losing one

Read together, the waiver holding and the assumption-of-risk holding point to where these cases are won. A member hurt at a fitness facility will generally have a viable claim when the injury came from something beyond the ordinary risk of the activity:

• Defective or improperly maintained equipment. A treadmill that genuinely malfunctions, a cable machine with a frayed cable, a bench with a cracked frame. The ordinary risk of exercise does not include equipment failure.
• Equipment set up contrary to the manufacturer's instructions, such as the removed side rails in the Fifth District case.
• Negligent instruction or supervision when the facility undertook to provide it. A trainer who sets a machine incorrectly or spots a lift carelessly has assumed a duty and can be held to it.
• Hazards unrelated to the exercise itself. A wet locker-room floor or a dark stairwell is a premises-liability question, like any other business fall case, not an assumption-of-risk question.
• Reckless or intentional conduct by the facility or its staff, which the doctrine never excuses.

A member who simply lost her balance on a properly functioning machine, with no staff involvement, faces an uphill fight no matter how badly she was hurt, as Mrs. Hague's case shows.

What this means for you

If you were hurt at a gym or recreational facility, do not assume the waiver you signed ends the matter. Many are too vague to be enforced, and the question of what you actually agreed to is often one for a jury. But do assume the facility will argue that your injury was an inherent risk of the activity, and understand that the way to answer that argument is evidence that something went wrong beyond the ordinary: a defect, a maintenance failure, an employee's mistake. That evidence has to be gathered quickly. Equipment gets repaired or replaced, maintenance records get discarded, and surveillance video gets overwritten. Bring the membership agreement to the first meeting; the exact words matter.