by Doyice Cotten

Jasmin Urena was working out at the Wyomissing LA Fitness of which she is a member. After the workout, she relaxed in the sauna, after which the first step collapsed as she got up to leave. She suffered a serious leg injury requiring arthroscopic surgery. When she first joined the club, she signed the membership agreement which contained a waiver of liability. The waiver is presented below with bold emphasis added on key language.

 IMPORTANT: RELEASE AND WAIVER OF LIABILITY AND INDEMNITY. You hereby acknowledge and agree that use by Member and/or Member’s minor children of LA Fitness’ facilities, services, equipment or premises, involves risk 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 LA 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 LA 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 LA Fitness or otherwise, to the fullest extent permitted by law, while Member or Member’s minor children are in, upon, or about LA Fitness premises or using any LA Fitness facilities, services or equipment. Member also hereby agrees to indemnify LA Fitness from any loss, liability, damage or cost LA Fitness may incur due to the presence of Member or Member’s children in, upon or about the LA Fitness premises or in any way observing or using any facilities or equipment of LA Fitness whether caused by the negligence of Member(s) or otherwise. You represent (a) that Member and Member’s minor children are in good physical condition and have no disability, illness, or other condition that could prevent Member(s) from exercising without injury or impairment of health, and (b) that Member has consulted a physician concerning an exercise program that will not risk injury to Member or impairment of Member’s health. Such risk of injury includes (but is not limited to): injuries arising from use by Member or others of exercise equipment and machines; injuries arising from participation by Member or others in supervised or unsupervised activities or programs at a Club; injuries and medical disorders arising from exercising at a Club such as heart attacks, strokes, heat stress, sprains, broken bones, and torn muscles and ligaments, among others; and accidental injuries occurring anywhere in Club dressing rooms, showers and other facilities. 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 and that if any portion thereof is held invalid, it is agreed that the balance shall, notwithstanding, continue in full force and effect. Member has read this release and wavier of liability and indemnity clause, and agrees that no oral representations, statements or inducement apart from this Agreement have been made.

 The Defendant club argued that the valid and enforceable Exculpatory Clause barred the defendant’s claims of negligence by the club (Urena v. LA Fitness and Fitness International, LLC, 2021).

Pennsylvania Law

The court quoted the Pennsylvania Supreme Court which has held that “an exculpatory clause is valid when three conditions are met. First, the clause must not contravene public policy. Secondly, the contract must be between persons relating entirely to their own private affairs and thirdly, each party must be a free bargaining agent to the agreement so that the contract is not one of adhesion.”

First Prong was met. The court stated there was no public policy violation because this case did not involve “a matter of interest to the public or the state … [such as] the employer-employee relationship, public service, public utilities, common carriers, and hospitals.”

Second prong is met. The court pointed out that this was clearly a matter between a private party and a fitness facility.

Third Prong is met. The court ruled that there was no adhesion involved because courts have consistently ruled that participants in  sports or recreational activities are free to walk away without signing the contract. Hence, there is no adhesion and such agreements are not unconscionable.

Finally, the court added that “even once an exculpatory clause is determined to be valid, it will, nevertheless, still be unenforceable unless the language of the parties is clear that a person is being relieved of liability for his own acts of negligence.”

Plaintiff’s Arguments

Urena made two arguments against enforcement of the waiver. First, she argued that the motion for summary judgment was untimely. The court discounted this pointing out that some of her documents had been submitted late. Next, she argued that the Membership Agreement was in English and her primary language is Spanish and is therefore an unenforceable contract of adhesion. The court pointed out that  “under Pennsylvania law, Defendant alone is responsible for understanding and reading the Contract prior to signing it. The potential language barrier does not raise a genuine dispute of material fact as to whether an agreement is valid and enforceable.” The court pointed to a 2018 case in which a plaintiff unsuccessfully argued that the exculpatory clause was not enforceable because she did not speak English. That court had stated that “[Plaintiff’s] inability to speak English does not bar her from becoming contractually bound.”

Ruling

The court stated that the waiver could not be more clear. The exculpatory clause in question is valid and enforceable and serves to bar the instant action. Accordingly, Defendant’s motion for summary judgment was be granted.

Risk Management Take-away

Sport and recreation providers should keep abreast of current waiver law in their state. Remember, waiver law is state law and varies from state to state. Waivers signed by adult participants are valid and enforceable in most states, but not all. Generally, no one should sign a document they have not or cannot read. Language is not generally effective as an excuse.

Photo Credit: Thanks to Thomas Wanhoff    via Flickr.