By Doyice Cotten
In Hinkal v. Gavin Pardoe & Gold’s Gym (2015), Melinda Hinkal was injured while a client of a Pennsylvania health club. She had signed a membership agreement containing a waiver of liability. While working with a personal trainer, she suffered a back injury and filed a negligence claim.
The major issue in the case was whether the waiver language was sufficiently conspicuous to be enforceable.
The Gold’s Gym membership agreement is printed on a single, two-sided page in a carbon copy packet. … The only signature line is located at the bottom of the front side. … The first line in the paragraph above the signature line provides, “[d]o not sign this [a]greement until you have read both sides. The terms on each side of this form are a part of this [a]greement.” This instruction is not set off from the rest of the paragraph and is not in bold typeface, capital letters, or larger font, even though other terms, such as the “buyer’s right to cancel,” appear in bold and capital letters.
- On the reverse side of the agreement are 13 additional terms printed in light gray ink on pink carbon paper.
- All of these terms are single-spaced and printed in the same font size.
- The “Waiver of Liability; Assumption of Risk” clause at issue in this case is the 12th term, located approximately three-quarters of the way down the page, and is not differentiated in any manner from the surrounding paragraphs.
The waiver read as follows:
WAIVER OF LIABILITY; ASSUMPTION OF RISK: Member acknowledges that the use of Gold’s Gym’s facilities, equipment, services and programs involves an inherent risk of personal injury to Member and Member’s guests and invitees. Member voluntarily agrees to assume all risks of personal injury to Member, Member’s spouse, children, unborn children, other family members, guests of invitees and waives any and all claims or actions that Member may have against Gold’s Gym, any of its subsidiaries or other affiliates and any of their respective officers, directors, employees, agents, successors and assigns for any such personal injury (and no such person shall be liable for to [sic] Member, Member’s spouse, children, unborn children, other family members, guests or invitees for any such personal injury), including, without limitation (i) injuries arising from use of any exercise equipment, machines and tanning booths, (ii) injuries arising from participation in supervised or unsupervised activities and programs in exercise rooms, running tracts, swimming pools, hot tubs, courts or other areas of any Gold’s Gym, (iii) injuries or medical disorders resulting from exercising at any Gold’s Gym, including heart attacks, strokes, heat stress, sprains, broken bones and torn or damaged muscles, ligaments or tendons and (iv) accidental injuries within any Gold’s Gym facilities, including locker rooms, steam room, whirlpools, hot tubs, spas, saunas[,] showers and dressing rooms. Member acknowledges that (x) Gold’s Gym does not manufacture any of the fitness or other equipment at its facilities and (y) Gold’s Gym does not manufacture any vitamins, food products, sports drinks, nutritional supplements or other products sold at its facilities; accordingly, neither Gold’s Gym, any of its subsidiaries or other affiliates nor any of their respective officers, directors, employees, agents, successors or assigns shall be held liable for any such defective equipment or products. Member shall indemnify each of Gold’s Gym, its subsidiaries and other affiliates and each of their respective officers, directors, employees, agents, successors and assigns (and “Indemnified Party”) and save and hold each of them harmless against and pay on behalf of or reimburse any such Indemnified Party as and when incurred for any Losses which such Indemnified Party may suffer, sustain or become subject to, as a result of, in connection with, relating or incidental to or by virtue of any claim that is the subject of the waiver set forth above. The provisions of this paragraph shall survive the termination of this Agreement and Member’s membership.
- The reverse side of the agreement does not have any space for a signature or for initials where a signatory may acknowledge the additional terms.
- The front side of the agreement does not require separate confirmation that the signatory has read and accepted the additional terms on the reverse side.
- Furthermore, it is undisputed that Appellant did not read the waiver of liability language on the reverse side of the agreement, and that no employee of Gold’s Gym verbally informed her that the terms of the agreement included an exculpatory clause.
Decision of the Court. The court concluded that the exculpatory clause in the Gold’s Gym membership agreement is unenforceable because it is not sufficiently conspicuous. The court’s reasoning was:
- The waiver is printed on the reverse side of the one-page document.
- The waiver is not in immediate proximity to the signature line, as the signature line is on the front side of the document.
- Additionally, the font size of the exculpatory clause is not distinct from the other 12 terms on the reverse side, nor is the font size of the sentence advising Appellant to read both sides of the agreement distinct from the surrounding text.
- This is in contrast, for example, to the font in the paragraph explaining the “Buyers Right to Cancel” on the front side.
- The exculpatory clause is printed in light gray ink on pink carbon paper and is difficult to read.
- It is undisputed that Appellant did not read the language of the membership agreement, and the language of the agreement itself is not so conspicuous as to put the user on notice of the waiver.
- Finally, the sentence advising Appellant to read both sides of the agreement does not contain a description of the additional terms or an indication of their potential significance.
This writer has frequently emphasized that stand-alone waivers are safer and more likely to be enforced than are waivers included within another document (in this case, a membership agreement). Further, it is important that providers who depend upon the protection of liability waivers know what waiver law is in their state and make certain that their waiver adheres to that law. In this case, Pennsylvania law is clear that the releasing party must have been aware of the terms and effect of the agreement. Courts look closely at 1) the placement of the waiver in a document, 2) the size of the print, and 3) whether the release is highlighted in some fashion.