Milshteyn v. Fitness International, LLC, 2022 Pa. Super. 30, 2022 WL 499594 (Pa. Super. 2022)

PA Superior Court again affirms a waiver contained within gym member agreement is enforceable.

The plaintiff, a member of the defendant-gym, slipped and fell while descending stairs from the pool to the locker room of the gym during a power outage. The plaintiff raised negligence claims against the defendant-gym. 

The defendant filed a motion for summary judgement and argued that the plaintiff’s claims were precluded pursuant to an executed waiver contained within the membership agreement. In response, the plaintiff averred that the waiver was a contract of adhesion and, thus, was unenforceable. The plaintiff also argued that, as the defendant’s conduct was grossly negligent, the waiver did not apply. The trial court granted the defendant’s motion for summary judgment. 

On appeal, the Superior Court of Pennsylvania affirmed the trial court’s order granting summary judgment in favor of the defendant. The Superior Court held that the membership agreement was not unconscionable or a contract of adhesion. Reaffirming the holding set fort in Toro v. Fitness Int’l LLC, 150 A.3d 968 (Pa. Super. 2016), the court found that the plaintiff executed the membership agreement for the purpose of participating in a voluntary athletic activity and that he was under no compulsion to complete an agreement for the non-essential service. As such, the court ruled that the summary judgment was proper on this basis. 

The court further held that, as the plaintiff failed to plead a claim for gross negligence in his complaint, he could not raise the claim for the first time in response to the defendant summary judgment motion. The Superior Court ruled that since there is a substantive difference between ordinary negligence and gross negligence, the plaintiff’s claim for gross negligence constituted a wholly distinct claim from the claims originally in the complaint. 

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