Attention Campers and YMCA / Gym Members: Is that Liability Waiver Binding?
Florida Arbitration Law . com:
In an early summer post, we mentioned a May 2008 decision where the Fifth DCA refused to enforce an exculpatory clause / liability waiver for a 5-year old camper. A large number of gyms, camps, and other recreation activities include the consumer signing a waiver. Is it enforceable? Perhaps this Second DCA case — which voided the YMCA’s exculpatory clause — will be of some interest.
In Elizabeth Anne Murphy v. Young Men’s Christian Association of Lake Wales, Inc., a central Florida YMCA required a member to sign an exclupatory clause before using gym equipment. We’ll reprint the clause below, but essentially the drafters tried to use “user friendly” language and got burned. In one sentence, the clause suggests that the YMCA will use “reasonable precautions” but, later on, all claims for negligence are waived. See the difference? In one instance, the “reasonable precaution” sentence suggests that YMCA will, indeed, use reasonable precautions — then and only then will they be off the hook. But, the clause then says all claims are waived, presumably even if reasonable precautions are not used.
Read the clause below and make up your own mind. Quite frankly, it seems splitting hairs but, alas, that is the lesson of these cases. ANY suggestion of the slightest mulitple equivocation or multiple interpretation is going to unwind an exculpatory clause. Indeed, the provision below may be simply too long. That many words leads to the communication of a lot of ideas, some of which can be construed as being in conflict. Bottom line, exculpatory clauses need to be clear. Reference to “reasonable precautions” may be its un-doing. Best to be short and emphasized, right above the signature block.
The 2nd DCA (Canady, Whatley, Salcines) cited an old Third DCA (Miami area) case involving a camp…