September 18, 2009
Fine print vs. bold face: How clear is that waiver?

By ANDREW BERGH
Special to the Journal

Read the fine print, dummy.

This is always good advice before signing a contract. After all, who wants to give up valuable rights without even knowing it?

Certainly not Seattle resident Josephine Johnson, who didn't realize when she signed up for a gym membership in September of 2005 that she had supposedly released the gym from any future liability.

Not your typical gym rat, Johnson was 74 years old when she signed on the dotted line. The reason she upped? Following heart surgery in April 2005, her doctor recommended regular exercise, so she joined a gym - Mieko's Magnolia Fitness - just one block from her home.

The two-page document signed by Johnson was labeled “60 Day Contractual Agreement.” About three quarters down the first page, it contained a waiver and release provision stating, among other things, that using the club's exercise machines involved “inherent risks and dangers,” and that the member voluntarily assumed the “risk of harms” caused by the club's “unintentional conduct.” Unlike other parts of the agreement, bold and capital letters were nowhere to be found in the written waiver and release.

According to Johnson, the Mieko's employee was in a hurry to sign her up and didn't even ask her to read the agreement, let alone explain it to her. Instead, the only discussions pertained to how her monthly dues would be paid. (Johnson wanted to pay by the month but was told it would have to come out of her checking account.)

On her first two visits to the gym, Johnson only used the treadmill and bicycle. The third time, however, she made an appointment with a personal trainer to learn how to use the weight machines.

The second weight machine that she used was equipped with a pull-down bar and bench with a saddle-type seat. According to Johnson, the trainer told her to grab the bar and sit down while pulling it down, but then looked away to talk with somebody else. Despite her best efforts to follow the trainer's instructions, Johnson completely missed the bench, fell on her back and hit her noggin on the floor. As a result, the septuagenarian was badly bruised and suffered a cracked vertebra.

Johnson later sued Mieko's for damages in King County Superior Court, alleging that the personal trainer had negligently instructed her on how to use the weight machine.

But negligence, almost by definition, amounts to “unintentional conduct,” which, per Johnson's membership agreement, was one of the risks she had voluntarily assumed. So based on the waiver and release provision, the gym moved to dismiss her suit.

Johnson countered that the wording was “inconspicuous” and therefore void and unenforceable. But the trial court sided with Mieko's, ruling that the waiver and release language was unambiguous and “very clear.”

There's no doubt the wheels of justice could use some WD-40. But after a 19-month delay, Johnson recently obtained a favorable decision from a Washington appeals court.

The purpose of a waiver provision, said the court, is to deny an injured person the right to recover damages from the party negligently causing the injury.

Despite this harsh result, so-called “limitation-of-liability” clauses are generally enforceable under Washington law unless, among other reasons, they are inconspicuous. So in Johnson's case, said the court, the “only question” was whether the waiver wording in Mieko's membership agreement was so inconspicuous that “reasonable persons could reach different conclusions as to whether the document was unwittingly signed.”

So how does a court decide if waiver language is conspicuous? By analyzing various factors, including whether the waiver is set apart or hidden within other provisions, whether capital letters or bold type are used, and whether the signature line clearly relates to the waiver.

In almost painstaking detail, the appeals court reviewed Mieko's two-page agreement and ultimately concluded that reasonable minds could differ on whether the waiver provision was conspicuously displayed.

For one thing, said the court, the only “prominent” provisions using capital letters and bold font were those relating to the member's financial obligations. Moreover, the placement of the waiver provision in the middle of the financial terms “create(d) the impression” that it only applied to them. And although the waiver section was followed by a signature line, there was no bold font or capital letters to clearly indicate that signing in the designated space would release the club from future liability.

In short, although Johnson might not be hitting the gym every day as she nears her eightieth birthday, she'll at least have her day in court.