Please Release Me? Gym Releases and Other Agreements with Exculpatory Clauses
Defense Digest, Vol. 24, No. 3, September 2018
By Michele P. Frisbie, Esq.*
Claims professionals often encounter claims involving questions concerning the enforceability of pre-event written waivers. A claimant or litigant may be injured in a bicycle, 5K or even an obstacle race; or at a trampoline park, a trapeze school or a rock climbing gym. Many times the claimant or litigant will have signed a membership agreement or waiver. These claims involve common issues concerning the enforceability of these documents and whether or not they afford the insured any protection.
This past spring, a series of cases involving gym releases and exculpatory clauses came out of the United States District Court for the Eastern District of Pennsylvania and Pennsylvania Superior Court that resulted in the enforcement of the releases.
In the case of Vinson v. Fitness & Sports Clubs, LLC, 2018 Pa.Super. LEXIS 430 (Pa.Super. May 4, 2018), the court affirmed a trial court’s entry of summary judgment based upon a plaintiff’s execution of a recreational release. The release did not violate public policy, and failure to read the release was not a valid defense to void the contract.
In 2012, the plaintiff joined an L.A.Fitness and signed a three-page membership agreement that contained an exculpatory clause. Here is what it said, in part:
IMPORTANT: RELEASE AND WAIVER OF LIABILITY AND INDEMNITY. You hereby acknowledge and agree that use by Member and/or by Members minor children of L.A. Fitness’ facilities, services, equipment or premises, involves risks of injury to persons and property, including those described below, and Member assumes full responsibility for such risks. In consideration of Member and Member’s minor children being permitted to enter any facility of L.A. Fitness (a “Club”) for any purpose including, but not limited to, observation, use of facilities, services or equipment, or participation in any way, Member agrees to the following: Member hereby releases and holds L.A. Fitness, its directors, officers, employees, and agents harmless from all liability to Member, Member’s children and Member’s personal representatives, assigns, heirs, and next of kin for any loss or damage, and forever gives up any claim or demands therefore, on account of injury to Member’s person or property, including injury leading to the death of Member, whether caused by the active or passive negligence of L.A. Fitness or otherwise, to the fullest extent permitted by law, while Member or Member’s minor children are in, upon, or about L.A. Fitness premises or using any L.A. Fitness facilities, services or equipment … Member further expressly agrees that the foregoing release, waiver and indemnity agreement is intended to be as broad and inclusive as is permitted by the law of the State of Pennsylvania … Member has read this release and waiver of liability and indemnity clause, and agrees that no oral representations, statements or inducement apart from this Agreement have been made.
After Ms. Vinson tripped and fell over a wet floor mat in October of 2013, she sued L.A. Fitness, claiming it improperly maintained the facility. L.A.Fitness cited the exculpatory clause in its reply to her complaint and eventually filed a motion for summary judgment on several grounds, including the exculpatory clause. The trial court granted L.A.’s motion, and Ms. Vinson appealed.
Ms. Vinson claimed the exculpatory clause violated public policy because it affected public health and safety. The Superior Court disagreed. The court explained that an exculpatory clause only violates public policy if it involves a matter of interest to the public or state, such as an employer-employee relationship, public service, public utilities, common carriers or hospitals. The court can be the voice of the community, declaring a contract against public policy, only when there is virtual unanimity of opinion as to the public policy the contract supposedly violates. Citing Chepkevich v. Hidden Valley Resort, L.P., 2 A.3d 1174 (Pa. 2010) and Toro v. Fitness International, LLC, 150 A.3d 968 (Pa.Super. 2016), the Vinson court ruled that recreational releases, such as those required by gyms, are valid and are enforceable and that voluntary athletic or recreational activities are not matters of public interest or state interest.
Ms. Vinson apparently mentioned in a footnote that she might not have even received the exculpatory clause. Setting aside the fact she raised this argument too late, the court also noted that an alleged failure to read the release is not a valid defense.
However, in another gym release/exculpatory clause case, Hill v. L.A. Fitness, 2018 U.S.Dist. LEXIS 62342 (E.D.Pa. April 10, 2018), the court granted summary judgment for the defendant on the plaintiff’s personal injury claim. In Hill, unlike Vinson, it was timely argued that there was an issue as to whether the plaintiff signed the agreement. Mr. Hill testified that his “ex” secured and signed the membership agreement for him because he did not have a credit card at the time. However, Mr. Hill admitted he did read the agreement and initialed the remaining pages of the same. The court found this to be evidence that the plaintiff understood he was entering the membership agreement, including the exculpatory waiver. The Hill court took advantage of both Toro and Vinson to uphold the exculpatory clause. Because the plaintiff was found to have entered a valid, enforceable exculpatory waiver, the court ruled the plaintiff’s negligence claims were barred by that waiver and, therefore, granted the defendant’s motion for summary judgment.
Exculpatory clauses are not limited to gym cases. We have found they arise in a variety of cases. For example, in one such case, the plaintiff signed an agreement with an exculpatory clause in connection with a motorcycle class. They might also be found in permission slips for school trips.
Exculpatory clauses may also benefit third parties, apart from the entity that issues the agreement containing the exculpatory clause. To wit, in another case, the plaintiff was participating in a race sponsored by a local YWCA. When she fell, she sued not only the YWCA, but also the municipality. The agreement she signed happened to specifically mention the municipality.
Encouraging and supporting insureds in creating clear, concise and proper exculpatory clauses in their agreements may be well worth the investment for both the insureds and insurers. They may create a clear pather to summary judgment for an insured in a subsequent injury case.
*Michele is special counsel and works in our Doylestown, Pennsylvania office. She can be reached at 267.880.2031 or email@example.com.
Defense Digest, Vol. 24, No. 3, September 2018. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2018 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact firstname.lastname@example.org.