By Doyice Cotten
Evans v. Fitness & Sports Club, LLC., 2016). This week we will look at Pennsylvania law and the ruling in the previous case. To review the facts:
On November 12, 2014, Patricia Evans was participating in a personal training session at LA Fitness with personal trainer Brandon McElwee. During the session, McElwee directed Evans to perform “suicide runs,” an activity that required Evans to repeatedly run forward to a weight and touch it and then run backward to the start line. At one point during the suicide runs, McElwee told Evans to go “faster, faster.” While Evans was backpedaling she fell backward. As a result of the fall, Evans fractured both of her wrists. Evans was 61 years old at the time of her injury.
The Membership Waiver
Evans joined LA Fitness and signed and initialed a three-page Membership Agreement. Right above the signature line on the first page of the Membership Agreement, the following language appears in a separate text box:
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 (1) the RELEASE AND WAIVER OF LIABILITY AND INDEMNITY,(2) the *EFT/ CC Request (if applicable), (3) the Agreement to Arbitrate all Disputes, and (4) all other Additional Terms and Provisions on the reverse side hereof, including the Membership Policies and Club Rules and Regulations. L.A. Fitness recommends you consult your physician prior to beginning any exercise or weight loss program.
On the second page of the Membership Agreement, a text box at the top of the page contained a waiver, which follows in part:
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 risks of injury to persons and property, including those described below, and Member assumes full responsibility for such risks. In consideration of Member and/ or 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. . . . [R]isk 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.
Evans initialed inside the bottom of the text box. An employee “perused through” the Agreement with her, but did not go over all of the pages. Evans said she “read some of it.” At deposition Evans said did not have “any understanding” of the waiver of liability.
The Personal Trainer Waiver
A few months later, she wanted to use a personal trainer and signed a 3-page Personal Training Agreement and Release of Liability (“Personal Training Agreement”) with LA Fitness. Evans signed each page of the Personal Training Agreement. Some of the agreement language was:
By signing this Agreement Client acknowledges that Client has read, understood and agreed with all terms and conditions of this Agreement, after having the opportunity to have it reviewed by an attorney at the discretion of Client. Client further acknowledges Client has received a filled-in and completed copy of this entire Agreement, which includes the ACKNOWLEDGMENT & ASSUMPTION OF RISK and the LIMITATION OF LIABILITY & FULL RELEASE OF LAF on page 2 . . . .
On the second page of the Personal Training Agreement, a text box on the right side of the page contains language that read
LIMITATION OF LIABILITY & FULL RELEASE OF LAF: Client agrees to fully release LAF [LA Fitness], its owners, employees, affiliates, authorized agents and independent contractors from any and all liability, claims, demands or other actions that Client may have for injuries, disability or death or other damages of any kind, including but not limited to, direct, special, incidental, indirect, punitive or consequential damages, whether arising in tort, contract, or breach of warranty, arising out of participation in the Services, including, but not limited to, the Physical Activities, even if caused by the negligence or fault of LAF, its owners, employees, affiliates, authorized agents, or independent contractors. Client is urged to have this Agreement reviewed by an attorney before signing.
Before signing the Personal Training Agreement, an employee of LA Fitness discussed the agreement with Evans. Evans later stated that she “looked at” the language in the text box, but “didn’t actually review it.” Evans signed inside the bottom of the text box, and at the bottom of page two. LA Fitness moved for summary judgment on the basis of the waivers.
Pennsylvania Waiver Law
In Pennsylvania, waivers must be valid and enforceable. Waivers are valid if three conditions are met:
- the clause does not contravene public policy [A waiver of liability violates public policy only if it involves “a matter of interest to the public or the state. Such matters of interest to the public or the state include the employer-employee relationship, public service, public utilities, common carriers, and hospitals.]
- the contract is between parties relating entirely to their own private affairs [The waiver relates only to the parties involved and is of no interest to the state.]
- the contract is not one of adhesion [Agreements to participate in “voluntary sporting or recreational activities” are not contracts of adhesion because “[t]he signer is a free agent who can simply walk away without signing the release and participating in the activity, and thus the contract signed under such circumstances is not unconscionable.” “The signer is under no compulsion, economic or otherwise, to participate, much less to sign the exculpatory agreement, because it does not relate to essential services, but merely governs a voluntary recreational activity.”]
A valid exculpatory clause is only enforceable if “the language of the parties is clear that a person is being relieved of liability for his own acts of negligence.” So to gain effect, a waiver must be enforceable as well as valid. The criteria for enforceability are:
- the contract language must be construed strictly, since exculpatory language is not favored by the law;
- 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;
- the language of the contract must be construed, in cases of ambiguity, against the party seeking immunity from liability; and
- the burden of establishing the immunity is upon the party invoking protection under the clause.
The only challenge to enforceability by the plaintiff was that the waivers were not obvious. The court disagreed and ruled the waivers both valid and enforceable.
The club did some things that created problems:
- They hired a trainer who apparently did not have very good judgment.
- They apparently did not adequate supervise the activities of their personal trainers.
But some things were done well:
- They used two waivers that were unambiguous and easily understood.
- They had employees go over the waivers with the clients – perhaps not perfectly, but well enough to show that an effort was made.
- They stored the waivers in such a manner that they could find them when they needed to.
Pennsylvania law allows the use of waivers in recreation and sport situations. However, one can see that certain criteria must be met – necessitating the use of well-written, unambiguous documents.
Note: These waivers included the use of the word “negligence.” The term is not required by Pennsylvania waiver law; nevertheless, this author feels that the use of “negligence” always makes a waiver less ambiguous and that it should be included in waivers in all states.
Photo credit: Thanks to Torbakhopper on Flickr.