Yes! Waivers of Liability for Recreational Activities Are Still Effective in Pennsylvania

Defense Digest, Vol. 23, No. 1, March 2017

by Stuart H. Sostmann, Esquire

Key Points:

  • Conspicuous release language in recreational activity waivers are not against public policy and are not contracts of adhesion.
  • Requiring a signature on an agreement containing release language removes all analysis of the conspicuous nature of the language and increases the chances of a successful waiver.
  • It is irrelevant to the analysis of a waiver whether the plaintiff read and understood the language.


Over the years, the plaintiffs’ bar has continuously tried to attack releases included in membership agreements, recreational activity waivers and other forms for non-essential activities. The appellate courts in Pennsylvania have been addressing various releases on a continuous basis for the last 10 years. With each case, the plaintiffs’ bar tries to chip away at the validity of these releases in order to prevent their clients’ claims from being thrown out at summary judgment.

Nevertheless, within the last five years, Pennsylvania’s appellate courts have developed a series of principles that, if followed correctly, will result in a waiver of negligence claims for incidents that involve non-essential activities. The latest case addressing these principles is Toro v. Fitness International, LLC, a/k/a LA Fitness International LLC, 2016 Pa. Super. LEXIS 655 (Pa.Super. Nov. 10, 2016).

Toro was a member of an LA Fitness gym and had signed a membership agreement when he first joined. Subsequently, Toro slipped and fell in the locker room area at the LA Fitness on August 14, 2012. He filed a negligence cause of action, claiming that he slipped and fell on an unreasonable accumulation of soapy water located within the locker room. After a period of discovery, Fitness International filed a for summary judgment on two grounds: first, that Toro did not establish the gym had constructive notice of the alleged dangerous condition; and second, that Toro had waived his right to file a negligence cause of action based on a release included within the signed membership agreement.

There are three important points the court considered in evaluating the release language in Toro. First, at the outset of the release and waiver paragraph in the membership agreement, it started with the following in bold capital letters: “IMPORTANT: RELEASE AND WAIVER OF LIABILITY AND INDEMNITY.” This conspicuous language was found by the Superior Court to have put Toro on notice that there was important release language forthcoming in the next paragraphs of the agreement. Second, the release and waiver clause contained language that specifically included all areas of the gym’s facility, noted that the risk of injury included in the clause was applicable to “accidental injuries occurring anywhere in the club, dressing rooms, showers and other facilities,” and that the clause “is intended to be as broad and inclusive as is permitted by the law of the State of Pennsylvania.” The Superior Court found this language to be clear that any injuries occurring in the locker rooms were covered by the release language in the membership agreement. Lastly, on the first page of the membership agreement—important to note, not the last page of the agreement—the gym included a signature line for the member, and it specifically noted above the signature line that “[t]he member was of legal age, had received a completed copy of the agreement, and had read and understood the entire agreement, including but not limited to the … release and waiver of liability and indemnity.” The Superior Court found that, by placing his signature below this language on the first page of the agreement, Toro was being placed on notice by the gym that he was accepting the terms of the release and wavier clause.

Based on the specific, conspicuous and all-encompassing language of the release and waiver clause in the membership agreement, the trial court granted summary judgment to Fitness International. On appeal, Toro argued that prior appellate case law precluded application of the release and waiver clause in the membership agreement. First, Toro argued that the exculpatory language in the membership agreement was invalid as it was a contract of adhesion and against public policy. Second, Toro argued that the release and waiver language clause was unenforceable because he had not read and understood that clause. Third, Toro argued that the exculpatory language in the release and waiver clause was not sufficiently prominent such that a reasonable person would be aware of it.

The Superior Court addressed each one of these arguments in turn. First, the court cited Hinkal v. Pardoe, 133 A.3d 738, 743 (Pa. Super. 2016)(en banc) appeal denied, 141 A. 3d 481 (Pa. 2016), for the proposition that a gym membership agreement does not sufficiently implicate health and safety concerns that would allow one to conclude the waiver would violate public policy. Further, the court referred to a number of prior appellate cases in Pennsylvania where it has been determined that an individual engaged in voluntary athletic or recreational activity can enter into contracts containing exculpatory clauses. Applying those principles to Toro, the Superior Court determined that Toro was engaged in a voluntary athletic or recreational activity by participating in activities at his gym. The court determined that, because he signed an agreement containing a release and waiver clause that explicitly waived all claims for injuries he suffered at the LA Fitness facility, the clause was not contrary to public policy. Along those same lines, the court further stated that an exculpatory agreement involving the use of a commercial facility for voluntary, athletic or recreational activities is not considered a contract of adhesion, and the member is under no compulsion, economic or otherwise, to participate, much less to sign the exculpatory agreement, as it does not relate to essential services.

The second argument raised by Toro was that the language contained within the release and waiver clause was not conspicuous and that there was testimony that he failed to read and understand that clause. Initially, the court noted that the mere fact that a plaintiff did not read or understand an exculpatory clause was not determinative of whether that clause would be deemed valid. Instead, an analysis would need to take place as to whether the exculpatory provisions were conspicuous. However, the conspicuous argument raised by the plaintiff was deemed moot by the court as the plaintiff’s own signature on the membership agreement did not require the court to engage in an analysis of the conspicuous nature of the language. The court, referring back to the language on the first page of the agreement directly above the area where Toro signed the agreement, specifically noted that Toro signed the membership agreement directly after reading language which indicated that he had acknowledged reading and understanding the membership agreement, including but not limited to the release and waiver of liability clause. As such, Toro’s signature on the membership agreement formed a valid contract, and he was bound to its terms, including the release and waiver clause.

Based on Toro, any client providing a recreational activity to the general public should be counseled on preparing comprehensive agreements containing conspicuous clauses releasing that client from liability. Not only should these clauses be conspicuous, but an effort to obtain the signature of the party participating in the recreational activity is a must and should be included as early as possible in the membership agreement. Lastly, the release and waiver clause should be comprehensive and include all portions of the activities and facilities so that there is no confusion that the release and waiver clause encompasses the entirety of the activities that the participant would encounter while at the client’s facilities.

*Stuart, a shareholder in our Pittsburgh, Pennsylvania office, can be reached at 412.803.1179 or



Defense Digest, Vol. 23, No. 1, March 2017. 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. © 2017 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