Court: Gym Membership Agreement Prohibits Member’s Negligence Claim
Written by: Alan Nochumson
As this year draws to a close, we are planning for our resolutions for the new year. For most of us, it will be, of course, shedding a few pounds and what better way to do that but to join a new gym.
We have all been there. After taking a tour of the fitness facility, we sit down with the new member coordinator when he walks us through the “ins” and “outs” of being a member of the gym. At the conclusion of the sit down, you are asked to sign a written membership agreement. Most of us are too busy or anxious to read what is usually a multipage, single-spaced document and just blindly sign it.
In Toro v. Fitness International, 2016 Pa. Super. LEXIS 655 (Nov. 10), the Superior Court found that a physical fitness center was entitled to summary judgment when a member sustained personal injuries when he slipped and fell on a wet and slippery floor in its men’s locker room based upon exculpatory language contained in the membership agreement signed by the parties.
In Toro, Charles Toro was a member of L.A. Fitness in Langhorne, Pennsylvania, the opinion said.
As part of his membership, Toro signed a fitness membership agreement, the opinion said. On the back of the first page of the membership agreement, within a black printed box, included a provision in bold capital letters providing “Important: release and waiver of liability and indemnity,” the opinion said.
According to the opinion, that provision of the fitness membership agreement specifies that the member “waives any ‘accidental injuries occurring anywhere in club dressing rooms, showers and other facilities’ and “‘is intended to be as broad and inclusive as is permitted by the law of the state of Pennsylvania.'”
The provision concludes that the “member has read this release and waiver of liability and indemnity clause, and agrees that no oral representations, statements or inducement apart from the Agreement have been made.”
Just above the signature also includes a paragraph wherein a member acknowledges that he or she “has read and understands the entire agreement including but not limited to the … release and waiver of liability and indemnity.”
In 2012, while at the fitness facility, Toro claimed he slipped and fell on a wet spot in the men’s locker room.
Soon thereafter, Toro filed a complaint against the corporate entity which owned that franchise location of that L.A. Fitness. The complaint contained one count alleging negligence (premises liability).
In the litigation, the fitness facility operator filed a summary judgment motion.
In addition to challenging whether Toro could establish a claim for negligence under preexisting law in Pennsylvania, the fitness facility operator argued that Toro’s claim was precluded under the terms and conditions of the fitness membership agreement.
The trial court agreed with the fitness facility operator and granted summary judgment in favor of the fitness facility operator and against Toro.
Toro then filed an appeal of the trial court’s ruling to the Superior Court of Pennsylvania.
Judge Carl A. Solano, on behalf of the Superior Court, wrote the memorandum opinion affirming the trial court’s ruling.
In the memorandum opinion, Solano first addressed why the exculpatory language contained in the fitness membership agreement should be enforced as a matter of law.
Citing to the Pennsylvania Supreme Court’s ruling in Chepkevich v. Hidden Valley Resort, 2 A.3d 1174 (Pa. 2010), Solano explain that, in order for an exculpatory clause to be valid, it “must meet three conditions: ‘first, the clause must not contravene public policy, second, the contract must be between persons relating entirely to their own private affairs and third, each party must be a free bargaining agent to the agreement so that the contract is not one of adhesion.'”
Furthermore, Solano noted that an “exculpatory clause will be enforceable only if ‘the language of the parties is clear that a person is being relieved of liability for his own acts of negligence.'”
Keeping that in mind, Solano agreed with the trial court’s determination that the exculpatory language contained in the fitness membership agreement is “not contrary to public policy because Toro ‘was engaged in a voluntary recreational activity, which did not involve any public entity or concern.'”
Solano pointed out “exculpatory provisions ‘violate public policy only when they involve a matter of interest to the public or the state”, such as “employer-employee relationship, public service, public utilities, common carriers, and hospitals.”
In comparison, Solano rejected Toro’s argument that the exculpatory clause contained in the fitness membership agreement contravenes public policy because it relates to “health and safety.”
In making this argument, Toro relied upon the Pennsylvania Supreme Court’s decision in Boyd v. Smith, 94 A.2d 44 (Pa. 1953). In Boyd, a landlord failed to install a fire escape in an apartment building in violation of the law. When a tenant in the building was injured jumping out of a window during a fire, the landlord attempted to avoid liability relying on an exculpatory clause contained in the lease agreement entered into by the parties.
The Supreme Court in Boyd invalidated the exculpatory clause “because it contravened the public policy set forth in the statute requiring fire escapes.”
Unlike the law in Boyd regulating the installation of a fire escape under certain circumstances, Solano stated that Toro failed to cite to any “dominant public policy, established by statute or otherwise, relating to fitness centers” in Pennsylvania.
Solano also indicated that the majority of the Superior Court, sitting en banc, in Hinkal v. Pardoe, 133 A.3d 738 (Pa. Super. Ct. 2016) recently upheld a similar clause in a Gold’s Gym membership agreement as it applied to a claim for personal injuries incurred during receipt of personal training services at the gym.
In Hinkal, the Superior Court “noted with approval the trial court’s holding in that case that ‘the exculpatory language at issue cannot be said to violate public policy because it was an agreement between a private individual and entities, and because it did not address matters of interest to the public or the state.'”
Similarly, Solano pointed out that “Toro was engaged in a voluntary athletic or recreational activity: going to the gym”, and that before he was injured, he signed an agreement that explicitly provided that, by signing it, he waived all claims for any injury he suffered at the L.A. Fitness facility, even if the injury was caused by the negligence of L.A. Fitness.”
Next, Solano addressed Toro’s argument that the aforementioned exculpatory language is invalid because the membership agreement in which it appears is a contract of adhesion.
Citing to Chepkevich, Solano noted that “‘an adhesion contract is a ‘standard-form contract prepared by one party, to be signed by the party in a weaker position, usually a consumer, who adheres to the contract with little choice about the terms.'”
Agreeing with the trial court in Toro, Solano did not believe that the fitness membership agreement should be deemed a contract of adhesion because Toro was using the fitness facility for voluntary athletic or recreational activities and Toro was “under no compulsion economic or otherwise, to participate in it.
In a footnote, Solano rejected the comparison made by Toro to automobile insurance policies, which have been deemed contracts of adhesion. In contrast, among other things, Solano pointed out that, in Pennsylvania, maintenance of an automobile insurance policy is required by law as a condition for most residents to operate a motor vehicle.
Toro also argued that the exculpatory language contained in the fitness membership agreement “is unenforceable because it was not sufficiently conspicuous to put him on notice of its terms.”
Again, agreeing with the trial court, Solano found that the pertinent contractual language was sufficiently conspicuous. In doing so, Solano relied upon the Superior Court’s recent ruling in Hinkal. In Hinkal, the Superior Court “held that an exculpatory clause in a signed fitness center agreement … is enforceable even if the member did not read it.”
Solano emphasized that, when Toro signed the fitness membership agreement, Toro “acknowledged that he ‘has read and understands the entire agreement including but not limited to the … release and waiver of liability and & indemnity.'”
As such, according to Solano, “there is no need to resort to proof of notice or an analysis of the clause’s conspicuity to determine if there was a meeting of the minds. Toro’s signature of the membership agreement formed a valid contract, and he is bound by its terms.”
Reprinted with permission from the December 12, 2016 edition of The Legal Intelligencer © 2016 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382, reprints@alm.com or visit www.almreprints.com.
