By Doyice Cotten

Many waivers, even otherwise well-written ones, fail because the language can be interpreted in two ways. This case provides us with a good example of such a waiver (Fresnedo v. Porky’s Gym III, 2019). The judges read the waiver and came up with two diametrically opposed interpretations. Here are the facts of the incident, some pertinent Florida waiver rulings, the waiver itself, and the arguments of the two sides – one saying the plaintiff clearly waived his right to redress; the other saying the waiver did not protect against the type of incident involved. Read it and see how you would rule if you were the judge.

Lazaro Fresnedo filed a complaint against Porky’s Gym III, Inc., alleging he sustained serious injuries when he was viciously attacked and knocked unconscious by another customer (Mr. Coto) who was using the gym that day on a single-day pass. Fresnedo alleged that Porky’s had a legal duty to ensure that it maintained its premises in a safe manner, free from dangers of which it knew or reasonably should have known, and to warn Fresnedo of any dangers of which it knew or reasonably should have known. The complaint further alleged that Porky’s breached its duties to Fresnedo by allowing Mr. Coto on the premises without first obtaining the information required to issue a single-day pass; by failing to warn Fresnedo regarding Mr. Coto’s behavior; and by failing to remove Mr. Coto from the facility (who allegedly displayed aggressive behavior prior to his attack on Fresnedo).

Porky’s moved for summary judgment based upon the affirmative defenses of waiver and assumption of the risk, relying upon a waiver and release form signed by Fresnedo when he became a member of Porky’s. Following a hearing, the trial court granted final summary judgment in favor of Porky’s. This appeal followed.

Pertinent Florida Waiver Law

• Exculpatory clauses, such as the one at issue here, that purport to deny an injured party the right to recover damages from another who negligently causes injury are strictly construed against the party seeking to be relieved of liability.
• In addition, courts are required to read such clauses in pari materia, (meaning clauses must be interpreted in light of each other) giving meaning to each of its provisions, to determine whether the intention to be relieved was made clear and unequivocal in the contract, such that an ordinary person would know what he was contracting away.
• Exculpatory clauses are unambiguous and enforceable where the intention to be relieved from liability was made clear and unequivocal and the wording was so clear and understandable that an ordinary and knowledgeable person will know what he or she is contracting away.
• …well-settled principle that [exculpatory] clauses are disfavored and are narrowly construed and reversing summary judgment [is appropriate] where exculpatory clause at issue was not “clear and unequivocal” in its attempt to release defendant from liability for specific act of negligence.
• …because we do not look with favor on exculpatory clauses, we must require the draftsmen of all contracts which contain them to use clear and unequivocal language totally without a hint of deceptive come-on, or inconsistent clauses.
• Florida law disfavors this type of contract which exculpates a person from responsibility for his or her own negligence because it runs contrary to the policy behind tort law that the tortfeasors should pay for the damage they negligently inflict.

The Significant Waiver Sections:  Read each section carefully to discover what is being released. Emphasis added by the author.

RELEASE AND WAIVER OF LIABILITY

PLEASE READ THE AGREEMENT CAREFULLY BEFORE SIGNING. BY SIGNING AND INITIALING BELOW YOU ARE AGREEING TO WAIVE YOUR LEGAL RIGHTS. ONCE YOU SIGN THIS DOCUMENT YOU WILL BE UNABLE TO BRING A LAWSUIT UNDER CERTAIN CIRCUMSTANCES.

1. You understand that the use of the Clubs’ facilities and equipment tests a person’s physical limits and carries with it a potential for serious injury and/or death, such as injuries caused by weights falling, equipment malfunctioning, cables snapping, defects in or improper maintenance of equipment or premises, inadequate supervision or instruction, intentional or unintentional misuse of the equipment (by you or others), the negligent acts of others with regard to the facilities and equipment (including the actions of any employees of the Club), and other dangers inherent in strenuous physical activity. You are aware of and accept these risks. You also understand and agree that it is your sole responsibility to determine whether you are sufficiently fit and/or healthy enough to safely use the the equipment and/or facilities of any of the Clubs. You affirm that you will be sufficiently fit and physically trained to use equipment of the Clubs you choose to use. InitialsLF
2. In consideration of your membership with any of the Clubs, you, for yourself, and for anyone else who can claim through you, hereby release each of the Clubs, and their employees, officers, directors, and agents, from any claim (of any nature whatsoever) that you may have, now or in the future, for any injuries you incur while you are on the premises occupied by any of the Clubs, such as heart attacks, muscle strains, pulls or tears, broken bones, shin splints, heat prostration, knee/lower back/foot injuries, and any other illness, soreness or injury however caused, occurring during or after your use of the equipment or facilities of any of the Clubs, whether caused by the active or passive negligence of any of the Clubs. InitialsLF
3. Additionally, you, for yourself, and for anyone else who can claim through you, hereby release each of the Clubs, and their employees, Officers, directors, and agents, from any claims (of any nature whatsoever) that you may have, now or in the future, for any damage to any of your property incurred while you are on the premises occupied by any of the Clubs, whether caused by the active or passive negligence of any of the Clubs or otherwise. InitialsLF
4. You assume full responsibility for any risk of bodily injury, death or property damage due to the negligence of any of the clubs or otherwise while you are on the premises occupied by any of the clubs. InitialsLF

 

Basis for the Vote NOT TO ENFORCE the Waiver

• Paragraph 1 addresses the “risk of bodily injury” in much greater detail than paragraph Four, yet inexplicably does so in the specific context of – “the use of the Clubs’ facilities and equipment    [which] tests a person’s physical limits and carries with it a potential for serious injury and/or death, such as injuries caused by weights falling, equipment malfunctioning, cables snapping, defects in or improper maintenance of equipment or premises, inadequate supervision or instruction, intentional or unintentional misuse of the equipment (by you or others), the negligent acts of others with regard to the facilities and equipment (including the actions of any employees of the Club), and other dangers inherent in strenuous physical activity.”
• Paragraph 2 focuses on the types of “injuries you incur while you are on the premises occupied by any of the Clubs, such as heart attacks, muscle strains, pulls or tears, broken bones, shin splints, heat prostration, knee/lower back/foot injuries, and any other illness, soreness or injury however caused, occurring during or after your use of the equipment or facilities of any of the Clubs, whether caused by the active or passive negligence of any of the Clubs.”
• Paragraph 4 does indeed provide that the member assumes “full responsibility for any risk of bodily injury [or] death due to the negligence of the clubs.” However, that language cannot be read in isolation, but instead must be read and understood in light of, and together with, the language of preceding paragraphs 1 and 2.
• If Paragraph 4 is so plain, clear, unambiguous and all-encompassing, why would paragraphs 1 and 2 be necessary at all?
• Read together, paragraphs 1, 2, and 4 could reasonably lead a person to believe that the “risk of bodily injury [or] death” being assumed in paragraph Four refers to injuries “such as” those specifically and extensively enumerated in paragraphs 1 and 2. In other words, the document waives liability for injuries which occur as a result of, or related to, “the use of the Club’s facilities and equipment.”
• Plaintiff explained that his understanding of these forms was that he was giving up his right to pursue claims against Porky’s Gym in the event that he was injured while working out.

Basis for the Vote TO ENFORCE the Waiver

• The language of the release is so simple and direct that it could have no other meaning. Therefore, the trial court correctly granted summary judgment because the release signed by Mr. Fresnedo bars his cause of action for negligence against the Club.
• The release has nine separate numbered paragraphs, which Mr. Fresnedo individually initialed, before signing at the bottom. The separate paragraphs release different types of claims that Mr. Fresnedo might bring against the Club and required Mr. Fresnedo to indemnify the Club for damages due to his own negligence.
• Plaintiff, in the introductory paragraph, acknowledged he was “waiving legal rights” that would render him “unable to bring a lawsuit under certain circumstances.”
• Plaintiff in Paragraph 4 contracted with the Club that he would “assume full responsibility for any risk of bodily injury . . . due to the negligence of … the Clubs or otherwise while you are on the premises ….”
• The judge(s) arguing for enforcement stated that there is no ambiguity in the statement and that a court would “be hard pressed to fashion a rule of law requiring the release to be clearer.”
• Although some overlap occurs, these paragraphs essentially waive separate and distinct types of claims against the Club. Paragraph 1 waives bodily injuries arising from failure to ensure Mr. Fresnedo was “sufficiently fit and/or healthy enough” to use the Club’s gym equipment. Paragraph 2 waives bodily injuries arising from the use of the Club’s gym equipment. Paragraph 3 waives damage to Mr. Fresnedo’s property. Paragraph 4 waives bodily injury due to the Club’s general failure to maintain the premises.
• If the release waived only injuries from working out, the release would have stopped with paragraph 2.
• An ordinary and knowledgeable person agreeing to this release would understand that it did not stop at paragraph two and that the subsequent, separately numbered paragraphs dealt with matters over and above those matters in the first two paragraphs.

Summary

I have never done this before on Sportwaiver.com. I am not going to tell you how the court ruled. Take some time to analyze the arguments by the court for and against enforcement.  Then, use this link to see the entire case. Shouldn’t take but a couple of minutes to see how the appellate court ruled and whether the club was protected by its waiver.

Photo Credit: Thanks to ThoroughlyReviewed via Flickr.