Negligence suit beats liability waiver at kids' gym

Stuck in the Middle, 2010
DieselDemon via Flickr CC BY 2.0

A liability waiver at a children's gym cannot block a negligence suit over a five-year-old's broken arm, the Massachusetts Supreme Judicial Court ruled earlier this week.

The ruling is straightforward and on point. What's surprising is that the high court's reversal was needed in the face a of a state law plainly nullifying gym waivers—and that the law exists, in contravention of American law's usual passion to enforce boilerplate.

Ava was five when she broke her arm falling off a beam at The Little Gym of West Boylston, west of Boston. It was Ava's second year at The Little Gym, part of a global network of recreational facilities "dedicated to helping kids build strength and confidence ... one cartwheel at a time." Ava's father had signed a standard waiver, or release—formally, an express assumption of risk—promising not to sue the gym for negligence if there were an accident, the court opinion recounted.

Alas, Massachusetts has a law that says, "No contract for health club services may contain any provisions whereby the buyer agrees not to assert against the seller ... of the health club services contract any claim or defense arising out of ... the buyer's activities at the health club."

Most of the statute is about consumer protection, limiting the shady contract practices for which gyms were once renowned and still are teased, such as excessively long membership terms and difficult-to-escape automatic renewals. Even the statutory provision here at issue focused on lawsuits about club contracts, before the legislature added the "buyer's activities" phrase in 1985.

The dispute resolved by the high court focused on whether The Little Gym, with its specialized focus on children and services structured in classes, is a "health club" within the meaning of the waiver ban. The statutory definition is broad, comprising businesses offering "instruction, training or assistance in the preservation, maintenance, encouragement or development of physical fitness, conditioning or well being." 

The definition then employs that loathsome legal-ese, "includ[ing], but not limited to," and lists a plethora of examples: "health spas, sports, tennis, racquet ball, platform tennis and health clubs, figure salons, health studios, gymnasiums, weight control centers or studios, martial arts and self-defense schools, or any other similar course of physical training."

"Including, but not limited to" is a safeguard against application of the interpretive canon, expressio unius est exclusio alterius, meaning the specification of some items suggests the intentional exclusion of others. I say "loathsome," because "including" is supposed to indicate non-exhaustiveness by definition. 

But lawyers will lawyer. The Little Gym here tried to differentiate its market niche by pointing to dissimilarities from a conventional adult gym. The court had little difficulty illustrating the controlling commonality of The Little Gym's wellness mission. I was surprised that the lower court had been seduced by the gym's argument.

What surprised me most, though, is the existence of the waiver-nullifying statute. I teach torts in Massachusetts, and, I confess, I did not know about this law.

As it turns out, Massachusetts is not unique, but such laws are rare. A 2019 survey by Dalby Wyant found laws nullifying gym negligence waivers in five other states: Connecticut, Louisiana, Montana, New York, and Virginia. Elsewhere, some states have much more modest limitations, disallowing waiver for gross negligence or recklessness, for example, but allowing waiver for negligence. Poking around online, I found that bills to override gym waivers are popular rallying causes for legislators but rarely pass. Industry advocates such as the Health & Fitness Association research and track such legislation.

The statutory nullification of a waiver, especially one signed by and restricting recovery for an adult, cuts against the American ethos of freedom of contract. Despite consumer frustration with boilerplate, and despite the now-well-known impossibility of reading all of the clickwrap terms and conditions that attach to our every transaction, the overwhelming trend in American law is to favor enforceability. Inroads on the approach are few and far between, and as European-law-driven cookie-notice banners online demonstrate, enhancing the informedness of consumer acquiescence is easier said than done.

Though usually I'm quick to rush to the ramparts for consumers, I find appealing the enforceability of negligence waivers for gyms. The theory of the enforceability of such contracts regardless of subjective consumer understanding, and amid a dearth of market alternatives, is that the freedom to contract allows a business model to thrive without the burden of potential tort liability—if with the tandem drawback that some people will get hurt and have no recourse.

Me at Anytime Fitness, Hong Kong Mong Kok, unsupervised, 2026

RJ Peltz-Steele CC BY-NC-SA 4.0

I'm a member of Anytime Fitness (AF), and I get unabashedly giddy over the 24/7 business model. I can visit AF any time, any day, regardless of whether staff are present. After a long day, or a night class, I don't have to race to the gym before it closes, like I did at the YMCA. Moreover, I use AFs around the country and around the world. A midnight gym visit when my body hasn't adjusted to Hong Kong time can be just the thing.

I've signed a liability waiver at my local AF, in Rhode Island, which presumably controls at all locations—likely including Massachusetts, per choice of law conventions. Yet I've often wondered how AF can exist, legally, and get insurance. I try to imagine how the conversation went down when someone who owned a line of gyms went to general counsel and proposed opening 24/7 with no staff.

If I were counsel, I would have said, You must have lost your mind. Waiver or no waiver, you want to let ordinary, untrained people, the unwashed masses, just walk around with unfettered access to our heavy equipment that is designed specifically to strain their bodies to the breaking point, and with no supervision whatsoever? Ha. Haha. Hahaha. 

Now I find out that AFs operate even in states where those waivers might be nullified by statute. It's enough to make one suspect that what chambers of commerce bemoan as the unbearable weight of an out-of-control tort system is not actually stifling business innovation in America. 

It ought be remembered, surviving a motion to dismiss is still a far cry from winning a negligence suit. At least based on the preliminary factual record as summarized by the court, I'm doubtful that Ava can show negligence by The Little Gym. It seems to me that a kid falling off a beam now and then, even landing the wrong way on an arm, is something that's going to happen at a kids' gym no matter how close the supervision. But we'll see. Ava's attorney lives to rush the ramparts for another day.

The case is Cross v. BeFree Enterprises (Mass. Nov. 10, 2026). Associate Justice Gabrielle R. Wolohojian wrote the unanimous opinion of the court.

See you at the gym. 

Secret civil justice undermines employee rights

Pintera Studios

A story investigated by ProPublica and featured on Planet Money highlights the problem of secret justice in perpetuating the willful abuse of at-home gig workers.

I expected that "Call Center Call Out," reported by Planet Money's Amanda Aronczyk and ProPublica's Ariana Tobin, Ken Armstrong, and Justin Elliott, based on the ProPublica story, would be a sad and frustrating tale of work-from-home gig economy labor being exploited, principally by the misclassification of employees as independent contractors to reap savings in compensation, work conditions, and employee benefits.

Turns out, there is even worse dissimulation afoot.  And there are worrisome implications for the health of the civil justice system.

To work these call-center jobs, for intermediary contractors such as Arise Virtual Solutions, the not-quite-employees are compelled to sign non-disclosure agreements (NDAs), arbitration agreements, and class action waivers.  These all are enforceable, even when the workers do not fully understand their implications.

When a worker has the temerity to commence arbitration proceedings, challenging misclassification as an independent contractor, the worker wins.  In one example in the story, a worker easily qualified as an employee under the labor test applied by the arbiter.  A worker can win thousands of dollars in reimbursement of expenses—they have to pay out-of-pocket for the privilege of their training and then buy their own computers and telecomm equipment—and back wages to bring their compensation history up to minimum wage.  

But here's the rub: the workers already are bound by their NDAs, and the arbitration is secret, too.  So there is no public record of the misdeeds of the employer.  The arbitration-winning complainant cannot even tell other mistreated workers that their labor rights are being violated.

According to the reporters, the secret justice system of arbitration is actually part of the business model for enterprises such as Arise.  They can pay liability to a small percentage of workers while willfully exploiting most others.  Because of the NDAs, arbitration clauses, and, most importantly, class action waivers, a lawyer said in the program, she can fight this abuse only behind a veil of secrecy, one case at a time, amounting to thousands of cases, even though every case is winnable on precisely the same analysis.

There's a classic scene from Fight Club (1999) when the Narrator (Ed Norton) is telling an airliner seatmate about his car company's "formula" for issuing a recall only when it's cost effective, regardless of the cost of human life.  (Think GM ignition switch recall.)

"Which car company do you work for?" the seatmate asks.

The Narrator pauses, staring her in the eyes.  Then, nodding knowingly, he answers,

"A major one."

So what companies use these call centers to take advantage of the cheap and ill-begotten labor forces organized by companies such as Arise?

Major ones.  Ones you've talked to.

Have a magical day.

 

The stories are Amanda Aronczyk & Ariana Tobin, Call Center Call Out, Planet Money, Oct. 2, 2020; and Ken Armstrong, Justin Elliott, & Ariana Tobin, Meet the Customer Service Reps for Disney and Airbnb Who Have to Pay to Talk to You, ProPublica, Oct. 2, 2020.

Waiver of negligence precludes later suit by family, high court holds in nursing home, diving death cases

Image by edar from Pixabay

In two cases at the end of February, the Massachusetts Supreme Judicial Court made clear that a person's express disposal of a negligence claim can preclude a later wrongful death suit by family.  In other words, Massachusetts wrongful death claims are derivative, not independent, of a decedent's rights.

"Wrongful death" and "survival" actions are creatures of 19th-century statute in Anglo-American law, the historic common law having extinguished all causes of action upon death—for curious historical reasons that I won't explicate here.  Formally, "wrongful death" is an action by surviving family for their losses, upon the occasion of the decedent's passing.  "Survival" is an action by the estate on behalf of the decedent, as if the decedent had lived.  However, this distinction is often blurred in law, as the actions are brought together as "wrongful death" under Massachusetts statute, and is often blurred in fact, as a single person may stand as a family member and estate representative at the same time.  However the actions are characterized in court, wrongful death and survival have become so universally entrenched in Anglo-American tort law, often upon sparsely worded and rarely amended statutes, that they function in the courts very much like common law causes of action, subject to interpretation in deep bodies of case law.

Image by whitfieldink from Pixabay

In one of the February cases, Jackalyn Schrader, acting with power of attorney for her mother, Emma, signed a "voluntary and clearly labeled" commitment to arbitrate disputes upon admitting Emma to residence at the Golden Living Center-Heathwood, in Chestnut Hill, Mass., in February 2013.  After Emma died in December 2013, Schrader brought a wrongful death claim under Massachusetts statute, in federal court, alleging that nursing home negligence caused bedsores, leading to Emma's death.  Schrader sought to evade the effect of the arbitration agreement by pointing out that she had not signed it in her personal capacity, and state law vests a wrongful death claim in family.

Image by skeeze from Pixabay

In the second of the February cases, Margaret C. Doherty, as representative of the estate and the decedent's statutory beneficiaries, sued in wrongful death upon a 2014 diving accident that took the life of her son-in-law, 37-year-old Gregg C. O'Brien.  O'Brien "was a certified open-water scuba diver [and] drowned while participating in a promotional diving equipment event that was sponsored by [defendants] and held in Gloucester," Mass.  Before participating in the event, O'Brien had signed:

a release from liability which had several subsections that were set forth in all capital letters and underlined, including "effect of agreement," "assumption of risk," "full release," "covenant not to sue," "indemnity agreement," and "arbitration."  In capital letters under the subsection titled "effect of agreement," it said, "Diver gives up valuable rights, including the right to sue for injuries or death." It also told the decedent to read the agreement carefully and not to sign it "unless or until you understand." ... [T]he subsection titled "covenant not to sue" stated that the decedent agreed "not to sue ... for personal injury arising from scuba diving or its associated activities," and that the decedent's "heirs or executors may not sue."

Asserting defendants' negligence, Doherty sought to evade the effect of the release by pointing out that the statutory beneficiaries were not party to any agreement.

Associate Justice David A. Lowy

In Schrader's case, the First Circuit certified a question to the Supreme Judicial Court to determine whether a wrongful death action in Massachusetts is independent of a decedent's action, so Schrader would be free of the arbitration agreement, or bound by the decedent's action, so Schrader would be bound by the arbitration agreement, even though she signed it only on behalf of her mother.  Schrader might have understood that her theory under statute was weak, because she sought to play up the court's power to evolve wrongful death law beyond the text of statute.  The court agreed that it had considerable power to evolve wrongful death as a function of common law.  At the same time, though, the court insisted that its job begins with statutory interpretation.  Resorting to the text of Massachusetts's first-in-the-nation, 1840 wrongful death statute, and in accordance with the weight of authority in other states, the court found the derivative nature of a wrongful death claim inescapable.  Schrader must therefore seek relief under the arbitration agreement.

In Doherty's case, the Supreme Judicial Court cited its decision in Schrader and likewise concluded, affirming, that the claims on behalf of the decedent's statutory beneficiaries were derivative and not independent of the decedent's rights.  "Therefore ... the valid waivers signed by the decedent preclude the plaintiff, as [O'Brien's] 'executor or personal representative,' from bringing a lawsuit ... for the benefit of the statutory beneficiaries."

The cases are GGNSC Admin. Servs., LLC v. Schrader, No. SJC-12714 (Mass. Feb. 27, 2020) (Justia; Suffolk Law), and Doherty v. Diving Unlimited Int'l, Inc., No. SJC-12707 (Mass. Feb. 27, 2020) (Justia).  Justice David A. Lowy wrote both decisions for a unanimous court.