Two Waiver Tips from a Pennsylvania Court

By Doyice Cotten

Young woman weight training. Camera angle view.

In a 2016 Pennsylvania health club case (Hinkal v. Gavin Pardoe & Gold’s Gym, Inc., 2016 Pa. Super. LEXIS 32), the Superior Court upheld a lower court ruling that the waiver in the gym membership agreement was valid and enforceable.

The issues considered in the appeal were:

  1. Whether the six day trial period had expired prior to the injury.
  2. Whether the waiver on the back page of the Membership Agreement is valid and enforceable.
  3. Whether the Waiver encompasses Reckless Conduct.

Claims one and three were rejected by the appellate court because they were not raised prior to the appeal.

The second issue was addressed by the court. The language on the back page of the agreement reads in pertinent part 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 . . . . Member voluntarily agrees to assume all risks of personal injury to Member . . . 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 to Member . . . for any such 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 . . . or other areas of 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 . . . .

The court then pointed out that the Membership Agreement signed by Appellant further instructs:

Do not sign this Agreement until you have read both sides. The terms on each side of this form are a part of this Agreement. Member is entitled to a completely filled in copy of this Agreement. By signing this Agreement, Member acknowledges that (A) This Agreement is a contract that will become legally binding upon its acceptance by Gold’s Gym,  (B) Member has examined the gym facilities and accepts them in the present condition, (C) Gold’s Gym makes no representations or warranties to Member, either expressed or implied, except to the extent expressly set forth in this Agreement and (D) The effective date of membership hereunder shall be within six months after the date of Member’s signature below. This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes any and all prior agreements, whether written or oral, with respect to such matter.

The appellate court then stated that the trial court, in a thorough and well-reasoned opinion, recognized that an exculpatory clause is valid where three conditions are met:

  1. The clause must not contravene public policy.
  2. Thecontract 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 appellate court went on to quote the trial court saying that once a waiver is determined to be valid, it will not be enforceable “unless the language of the parties is clear that a person is being relieved of liability for his own acts of negligence.” It listed as guiding standards that: 1) the contract language must be strictly construed;  2) the contract must state “the intention of the parties with the greatest particularity, beyond doubt, by express stipulation, and no inference from words of general import can establish the intent of the parties”; 3) when language is ambiguous, it must be construed against the party seeking immunity from liability; and 4) the party seeking protection has the burden of establishing the immunity.

The trial court ruled that the waiver in the membership agreement was valid and enforceable.

The Plaintiff’s Contention

In her appeal, the plaintiff did not claim the waiver was legally deficient; instead, she claimed that

the waiver is invalid because the waiver language appeared on the back of the agreement, she never read or was told to read the back of the agreement, and the clause was not “brought home” to her in a way that could suggest she was aware of the clause and its contents.

Appellant admitted she did not read the agreement prior to signing it. The appellate court stated that her failure to read the waiver did not make it invalid or unenforceable.  In addition, the appellate court, more than once, made two statements that seemed to have a significant effect on their ruling. These statements were:

  1. First, the document included an unambiguous directive not to sign before reading both sides of the agreement.
  2. Then, the court pointed out that the waiver included a “straightforward statement that the agreement constitutes the entire agreement between the parties.”

Subsequently, the appellate court affirmed the trial court’s grant of summary judgment in favor of the defendant health club.

Risk Management Takeaway

While the court may have given the same ruling without the two preceding statements, the inclusion of these in a waiver might constitute good policy. Check your waiver and see if they are there.

Photo Credit: Thanks to Richard Foster on Flickr.