Recently retained by a nice young guy who suffered a bad injury to his left shoulder while working out with a “trainer” at his health club. He had previously injured the shoulder years ago playing football and had to have a big piece of surgery. When he purchased his membership at the health club, he signed a bunch of documents, one of which was a waiver. And the waiver was pretty broad – it basically released the club from any liability relating to any use of the club’s equipment, weights or trainers. My client, to his credit, had the presence of mind to make club personnel[and later the trainer] aware of his injury. That might ultimately, become a very important fact.

Illinois courts have ruled that these waivers are enforceable. The thinking is that people, if they so desire, can contractually agree that they won’t hold a third party responsible if that person, or more likely, entity, does them harm. The cases say that those agreements will be upheld, provided that 1) the parties have equal bargaining power; 2) the the contract doesn’t violate public policy[i.e. promotes or authorizes something otherwise illegal]. If however, the injury comes about because of wilful and wanton negligence, where the party causing harm essentially knew that an injury would result, then the waiver will likely be disregarded. Similarly, if the release was obtained through fraud, or misrepresentations, it will probably be disregarded.

Getting back to my client…given his disclosure of the previous injury, should the trainer have avoided exercises that might re-injure the shoulder? We’ll see….