Pennsylvania Court Rules that Membership Contract Waiver Protects Against Negligence: No Reckless Conduct Found

By Doyice Cotten

 Cornelius Lister was injured when a fight occurred on the Fitness International basketball court (Lister v. Fitness International, LLC, 2014 U.S. Dist. LEXIS 45954).  He alleged that at least four men attacked him and that at 8501257607_ca88f54a61_z-1least one of the men was not a member of the club. He claimed that the club was negligent in failing to adhere to club policies that provided that non-members could not use the basketball court. He claimed that the club employee working the desk allowed entrance by non-members.

Plaintiff Lister filed suit and Fitness International moved for summary judgment asserting that a waiver of liability in the membership agreement protects the club against liability. Plaintiff claimed waiver in the membership agreement is unenforceable because it is ambiguous and because it does not apply to reckless conduct.

The plaintiff had joined the club about four years earlier and had signed a membership agreement that provided:

By signing this Agreement, Buyer acknowledges that Buyer is of legal age, has received a filled-in and completed copy of this Agreement has read and understands the entire agreement including but not limited to the *EFT/CC Request (if applicable), the Release and Waiver of Liability and Indemnity, all other Additional Terms and Conditions on the reverse side hereof. L.A. Fitness recommends you consult your physician prior to beginning any exercise or weight loss program.

 The membership agreement also included the following waiver of liability which appears in bold print and was surrounded by a box:

 IMPORTANT: RELEASE AND WAIVER OF LIABILITY AND INDEMNITY: You hereby acknowledge and agree that Member’s use 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 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 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 is in, upon, or about L.A. Fitness premises or using any L.A. Fitness facilities, services or equipment.  Member also hereby agrees to indemnify L.A. Fitness from any loss, liability, damage or cost L.A. Fitness may incur due to the presence of Member in, upon or about the L.A. Fitness premises or in any way observing or using any facilities or equipment of L.A. Fitness whether caused by the negligence of Member or otherwise. You represent (a) that Member is in good physical condition and has no disability, illness, or other condition that could prevent Member 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 waiver of liability and indemnity clause, and agrees that no oral representations, statements or inducement apart from this Agreement have been made. (Bold added.)


The court cited the standard, established by the Pennsylvania Supreme Court, by which validity and enforceability of waivers must be determined (Chepkevich v. Hidden Valley Resort, 2010):

1)      The waiver must not contravene public policy.

2)      The contract must be between persons relating entirely to their own private affairs.

3)      Each party must be a free bargaining agent to the agreement so that the contract is not one of adhesion.

The plaintiff did not claim that any of these requirements was breached; he claimed 1) that the waiver was ambiguous and 2) that it does not protect against reckless conduct. Plaintiff argues that:

 The release is ambiguous because it does not specifically apply to intentional acts by guests or to the club’s negligence in failing to prevent those intentional acts. The types of injuries referred to in the release are those resulting from exercise, club activities, and accidents. Nothing in the release states that a member waives claims arising out of the intentional assaults by other users of the club or the club’s failure to protect against such assaults.

The court disagreed, saying that he “agreed that his use of defendant’s facilities involved risk of injury to person and that he assumed full responsibility for such risk.” The court also pointed out that he released and held the defendant harmless from all liability, including that caused by the defendant’s negligence. Also, the court maintained that “risk of injury” included injuries arising from participation by himself or others in supervised or unsupervised activities at defendant’s club. The court concluded that the waiver was not ambiguous.

Plaintiff’s complaint regarding reckless conduct consisted of this argument:

. . . the defendant recklessly disregarded its own policies limiting guest access to its club, requiring photo identification to be produced by all guests, and prohibiting guests from playing on the basketball court. A club employee intentionally allowed Moore’s guests to enter the club without providing identification. The club knew that a high volume of people entered the club but failed to provide adequate staffing at its front desk to obtain identification from all guests.

In the view of the court, the conduct was not reckless. The court examined two definitions of reckless conduct:

1)      “[recklessness] must not only be unreasonable, but it must involve a risk of harm to others substantially in excess of that necessary to make the conduct negligent.”

2)      “recklessness, in contrast to negligence, requires conscious action rather than mere inadvertence” and is “an extreme departure from ordinary care, a wanton or heedless indifference to consequences . . . .”

It was the opinion of the court that the actions of the defendant did not involve conscious action or heedless indifference on the part of defendant; the actions seemed to be inadvertent.

Therefore, the court granted summary judgment in favor of the defendant, ruling that the waiver within the membership agreement was effective in protecting Fitness International against its negligence.


Photo Credit: Thanks to Brad Knabel at Flickr.