 |
| Stuck in the Middle, 2010 DieselDemon via Flickr CC BY 2.0 |
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 be lawyers. 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, 2026 RJ Peltz-Steele CC BY-NC-SA 4.0 |
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 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 kid's 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.
