After completing an intense workout, you feel dehydrated and decide to walk to the gym's water fountain. On your way there, you slip and hit your head. When you get up, you notice a trail of water leaking from the water fountain to where you fell. What recourse do you have?
How about a scenario where you are pushing yourself to break a personal best, but on that last rep, the old damaged safety clip you were using from the gym breaks. The bar tilts one way and you end up injured. What can you do?
The answer to the above questions is not straightforward and depends on numerous factors. For instance:
- Whose responsibility was it to clean up the water on the floor?
- Did someone at the gym warn you about the damaged safety clip?
- Were you using the safety clip properly?
While there are a lot of factors to consider, the following provides a breakdown of some important considerations if you find yourself in similar situations.
OCCUPIERS' LIABILITY ACT
In Ontario, the Occupiers' Liability Act (“OLA”) sets out the responsibilities of “occupiers,” defined as “a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises.” This definition would include the owners or operators of a gym, as they are responsible and in control over the gym.
However, even though it might seem simple to take legal action against a gym, the OLA provides some limits and modifications to their duty of care. These limitations and modifications are done through liability waivers.
LIABILITY WAIVERS 101
When you first signed up for your gym membership, you probably signed a liability waiver. The purpose of this waiver is to protect the gym from any potential lawsuits.
Most waivers include statements like “you understand and acknowledge the risks associated with using our facilities and you agree to use them at your own judgement” or “you agree not to sue the gym for any injuries sustained on the premises.”
Liability waivers are boilerplate, which means they are practically the same at all gyms. Even though gyms will use these waivers to protect themselves, they are not completely effective.
If a gym owner or operator is negligent, or did not follow a reasonable level of care, a waiver will not protect them unless the negligence is explicitly covered by the waiver.
Gym owners and operators have to act reasonably in preventing accidents and injuries.
Take the scenario where you slipped on the trail of water. Was there a sign that warned you about the spill? Did the gym make an announcement warning everyone of the spill.
Importantly, your actions have to be reasonable as well. For example, did you slip and fall because you were on your phone and did not see the wet floor sign?
Even though liability waivers provide a lot of protection for a gym, just putting limits on liability is not enough. A gym has to “take reasonable steps to bring such a restriction, modification or exclusion to the attention of the person to whom the duty is owed.”
For example, if a liability waiver is 40 pages long and on page 39 in small font it says that the fountain occasionally leaks, and that attendees use it at their own risk, it likely would not protect a gym from liability. The emphasis is on the word “reasonable.”
The language in liability waivers is key to see if your incident is reasonably covered. Also, even if it is covered in the liability waiver, the gym has to sufficiently bring the provision in the waiver to your attention.
It is important to remember that occupiers do not have to be perfect, they just have to be reasonable.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.