While participating in an instructional kettlebell course presented by KettleBell Concepts, Inc. at a Hilton hotel, Eric Gallant was injured when a kettlebell struck him in the back of the head.  Before starting the course, Gallant had signed a waiver in which he agreed to “assume and accept full responsibility for any and all injuries or damages that may occur…and forever fully release, remise, indemnify, and agree to defend and hold harmless [defendants]…from any and all causes of actions, costs, damages, expenses, and liability whatsoever.”  Despite this, Gallant sued Hilton Hotels, KettleBell and its instructor.

At the close of discovery, the defendants moved for summary judgment arguing, primarily, that Gallant’s action was barred because he had waived all liability.  In opposition, Gallant argued that the waiver did not express in unequivocal terms the parties’ intention to relieve the defendants of liability for their own negligence.

The court examined the waiver that Gallant signed and noted that the law frowns upon contracts that intend to exculpate a party from the consequences of its own negligence and to the extent that such agreements purport to exempt liability for willful or grossly negligent acts the courts have viewed them as void.  The court further noted that in order for this waiver to be clear and unequivocal, it must plainly appear that the limitation of liability extends only to negligence of the party attempting to shed ordinary responsibility.  The court ultimately ruled that the waiver was unenforceable.

As an aside, the court noted that the defendants had available to them the defense of assumption of risk as Gallant assumed the risk of attending a course in which he knew people would be swinging kettlebells.  The defendants, however, failed to raise this defense at the outset and only did so for the first time in their reply papers.  While a valid defense, the court was not required to consider this late argument.

Special thanks to Michael Nunley for his contribution to this post.  For more information, please contact Nicole Y. Brown at .