Lynne McNearney v. LTF Club Operations Company, Inc., d/b/a Life Time Fitness, and Mitchell Woodrum

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DIVISION FOUR
LYNNE MCNEARNEY, ) No. ED102905
)
Appellant, ) Appeal from the Circuit Court
) of St. Louis County
vs. )
r )
LTF CLUB OPERATIONS COMPANY, )
INC, d/b/a LIFE TIME FITNESS, and ) Hon. John D. Warner, Jr.
MITCHELL WOODRUM, )
)
Respondent. ) FILED: January 12, 2016

Introduction

Appellant Lynne McNearney (“McNearney”) appeals from the judgment of the trial court
granting summary judgment in favor of Respondents LTF Club Operations Company, Inc. d/b/a
Life Time Fitness (“LTF”) and Mitchell Woodrum (“Woodrum”) (collectively referred to as
“LTF”). McNearney was injured while participating in an exercise class at LTF supervised by
Woodrum and ﬁled suit alleging claims for personal injury. The trial court granted LTF’s
motion for summary judgment. On appeal, McNearney ﬁrst contends that the exculpatory
clauses contained within two agreements entered into between McNearney and LTF did not
release LTF from liability for its negligent conduct, and therefore could not support the trial

court’s grant of summary judgment. McNearney further argues summary judgment was

improper because LTF failed to show that it was entitled to judgment as a matter of law on the
basis of uncontroverted material facts.

Because McNearney released LTF from any claim of negligence as a matter of law by
signing the Member Usage Agreement, the trial court properly granted summary judgment in
favor of LTF with respect to McNearney’s allegations of negligence. Because LTF
demonstrated its right to judgment as a matter of law on McNearney’s claim for recklessness, the
trial court properly entered summary judgment in favor of LTF. Accordingly, we afﬁrm the
judgment of the trial court.

Factual and Procedural History

Viewed in the light most favorable to the non-moving party, the record contains the
following uncontested facts.

McNearney joined LTF and electronically signed a Member Usage Agreement on June
30, 2008. The Member Usage Agreement signed by McNearney contained a paragraph entitled
“RELEASE OF LIABILITY” in large, bold capital letters. The paragraph read as follows:

I waive any and all claims or actions that may rise against Life Time Fitness, Inc.,

its afﬁliates, subsidiaries, successors or assigns (collectively “Life Time Fitness”)

as well as each party’s owners, directors, employees or volunteers as a result of

such injury, loss, theft or damage to any such person, including, and without

limitation, personal, bodily or mental injury, economic loss or any damage to me,

my spouse, my children, or guests resulting from the negligence of Life Time

Fitness or anyone using a Life Time Fitness Center. I agree to defend, indemnify

and hold Life Time Fitness harmless against any claims arising out of the

negligent or willful acts or omissions of me, any person that is a part of my
membership, or any guest under this membership.

The next paragraph, in large, bold capital letters, stated: “I HAVE READ AND AGREE TO
THE TERMS AND CONDITIONS ABOVE, INCLUDING, BUT NOT LIMITED TO,
THE ASSUMPTION OF RISK AND RELEASE OF LIABILITY, AND I HAVE

RECEIVED A COMPLETE COPY OF MY MEMBER USAGE AGREEMENT.”

acts or omissions by Operator”); m, 361 S.W.3d at 18 (releasing landlord from “any and all
liability even though the claim, or loss or casualty is attributable to the negligence of the landlord
or its employees or agents”). Further, the exculpatory clause is conspicuous. “A term or clause
is ‘conspicuous’ if it is ‘clearly visible or obvious.” M, 361 S.W.3d at 17. “Whether a
printed clause is conspicuous as a matter of law usually depends on the size and style of the
typeface.” Li. The language releasing LTF from its Own negligence is contained within a
paragraph prominently entitled “RELEASE OF LIABILITY,” and is followed by another
separate paragraph, also in bold, capital letters, which again references the “RELEASE OF
LIABILITY.” The typeface alerted McNearney to her release of liability and set the paragraph
containing the exculpatory clause apart from the rest of the document. The size and style of the
typeface in the Member Usage Agreement made the exculpatory clause conspicuous. &
Eat—sley, 340 S.W.3d at 273 (ﬁnding exculpatory clause conspicuous where the paragraph heading
was titled “LIABILITY AND INSURANCE’ in all capital letters and appeared in the middle of
the second page of the agreement).

Further, the parties do not dispute that McNearney was injured on LTF’s premises,
during an LTF boot camp exercise class using LTF equipment, and under the direction of an LTF
employee. However, as a matter of law, given the uncontroverted language and facts related to
the Member Usage Agreement, the exculpatory clause of the Member Usage Agreement released
LTF from any claims McNearney may have against LTF and LTF employees resulting from the
negligence of LTF. Thus, to the extent McNearney’s amended petition asserted a cause of action
for negligence for the injuries she suffered, during an LTF exercise class while on LTF property,

she released LTF and Woodrum (an LTF employee) from any such claim as a matter of law by

signing the Member Usage Agreement. Accordingly, the trial court properly granted summary
judgment in favor of LTF with respect to McNearney’s negligence claim.2 Point One is denied.3
11. Point Two—Recklessness

While the exculpatory clause of the Member Usage Agreement signed by McNearney

bars her negligence claim, Missouri law is clear that a party cannot release itself from its own

recklessness. Hatch V. V.P. Fair Found. 1110., 990 S.W.2d 126, 140 (Mo. App. ED. 1999);

m, 923 S.W.2d at 337. Thus, McNearney’s recklessness claim is not barred by the Member
Usage Agreement. Accordingly, we must determine whether LTF demonstrated a right to
judgment as a matter of law on the basis of undisputed facts with respect to McNearney’s
allegations of recklessness. If LTF has made a prima facie showing that there were no genuine
issues of material fact and that LTF was entitled to judgment as a matter of law, the burden shifts
to McNearney to set forth speciﬁc facts showing that there is a genuine issue for trial. Rule
74.04(e); ITT Commercial Fin. Corp, 854 S.W.2d at 381. If McNearney is unable to show “that
one or more of the material facts shown by [LTFj to be above any genuine dispute is, in fact,
genuinely disputed,” then the trial court properly entered summary judgment in favor of LTF.

ITT Commercial Fin. Corp., 854 S.W.2d at 381.

A. LTF made a prima facie showing that it was entitled to judgment as a matter of law on
the basis of undisputed material facts.

2 McNearney’s contention that the exculpatory clause of the Member Usage Agreement contains a latent ambiguity
due to the existence of the Fitness Program Agreement is unavailing. This issue was never raised before the trial
court, and the record is completely lacking of any factual evidence supponing McNearney’s theory of ambiguity.
The record contains no information providing context regarding the relationship, if any, between the two
Agreements, such as whether non-LTF members were allowed to participate in ﬁtness classes.

3 McNeamey’s assertion that her injury was different than the risk she assumed in signing the Member Usage
Agreement and that LTF’s enhancement of the risk caused her injury is similarly unavailing. McNearney
misguidedly cites Coomer v. Kansas City Royals Baseball Corp, 437 S.W.3d 184 (Mo. banc 2014) as support for
her argument. Coomer, however, was decided on the issue of an implied assumption of risk. Here, McNeamey
signed a waiver expressly releasing LTF from its own negligence. Assumption of the risk is not at issue in this
matter, and therefore Coonler is not applicable.

Missouri recognizes a cause of action for recklessness, which our Supreme Court has
deﬁned as when an actor either intentionally does an act or fails to do an act:

[W]hich it is [the actor’s] duty to the other to do, knowing or having reason to

know of facts which would lead a reasonable man to realize that the actor‘s

conduct not only creates an unreasonable risk of harm to the other but also

involves a high degree of probability that substantial harm will result to [the
other.]

DeCormier v. Harley-Davidson Motor Co. Group, Inc., 446 S.W.3d 668, 672 (Mo. banc 2014)
(quoting Nichols v. Bresnahan, 212 SW2d 570, 573 (Mo. 1948)).4 “Recklessness looks to the
tortfeasor’s state of mind” and is applied to “conduct which is negligent, rather than intentional,
but which is so far from a proper state of mind that it is treated in many respects as if it were so
intended.” Ha_tch, 990 S.W.2d at 139.

in support of her recklessness claim, McNearney advanced two theories. First,
McNearney alleged that Woodrum was reckless for failing to warn McNearney of both the
unreasonably dangerous elastic properties of the resistance band as well as the danger associated
with the two-person resistance band exercise. Second, McNearney alleged that LTF was
reckless for instructing McNearney to engage in an unreasonably dangerous two-person
resistance band exercise when Woodrum knew or should have known that the exercise was
unreasonably dangerous, was foreseeably likely to cause McNearney injury, and involved a high
degree of probability that substantial harm would result.

With respect to McNearney’s failure—to-warn claim, the following undisputed material
facts were adduced. McNearney’s injury occurred while she was performing a two-person

resistance band exercise. Prior to the date of her injury, McNearney had used a resistance band

4 McNearney devotes a significant portion of her appellate brief to arguing that Missouri courts deﬁning
recklessness have repeatedly cited to the wrong edition of the Restatement. We are bound by the decisions of our
Supreme Court under the ﬁrmly established doctrine of stare decisis. See State v. Honeycutt, 421 S.W.3d 410, 422
(Mo. banc 20l3). Accordingly, the deﬁnition of recklessness stated by the Supreme Court in DeCormier and other
cases is controlling.

as part of a two—person exercise, but had never previously participated in the particular exercise
during which she was injured. Prior to her injury, McNearney knew the following: how a two~
handled resistance band like the one she was using when injured worked; that a two-handied
resistance band would stretch when the handles were pulled away from each other and un-stretch
if one handle was released; that the further a two—handled resistance band was stretched the faster
it would snap back into its original shape; and that if one partner in a two—person exercise
released one handle, the released handle would move in the direction of the other partner.
Finally, there was no dispute that Woodrqu explained how to perform the two-person resistance
band exercise before McNearney participated in the exercise, but that Woodrum did not explain
the possibility of the speciﬁc risk of recoil prior to McNearney participating in the exercise.

0n the basis of the foregoing undisputed facts, we hold that LTF had no duty as a matter
of law to warn McNearney about the recoil capability of the resistance band used during the two~
person exercise because McNearney had actual knowledge of such information. There is no duty

to warn of a danger when the injured party has actual knowledge of the danger. Shine v. Sw.

Bell Tel. C0., 737 S.W.2d 203, 205 (Mo. App. ED. 1987); see also Young v. Wadsworth, 916

S.W.2d 877, 878 (Mo. App. ED. 1996). In the absence of any duty to warn McNearney of the
recoil danger of the resistance band, LTF was not negligent, much less reckless, for failing to do
so.

With respect to McNearney’s claim that LTF was reckless in directing her to participate
in the two-person resistance band exercise, the following undisputed material facts were before
the trial court. Woodrum instructed McNearney to participate in a two—person resistance band
exercise in which one participant held the handles and walked forward while the other participant

held the middle of the resistance band to provide resistance. Woodrum chose the exercise, and

everyone in the exercise class was performing the exercise at the time of McNearney’s injury.
McNearney was assisting her partner by providing resistance when the injury occurred. Finally,
Woodrum stated that there is a strong possibility of injury if a resistance band recoils and hits an
individual in the face; that a trainer should always choose the safer exercise when possible; that
the members of the class could have used different equipment for the exercise but no other such
equipment was available; that every exercise has risk; and that it is not reckless, in and of itself,
to perform a partner exercise using resistance bands, although it depends on the exercise.

Based on these undisputed material facts, we hold that LTF and Woodrum were not
reckless in directing McNearney to participate in the two~person resistance band exercise during
I which she was injured. The foregoing facts would not lead a reasonable person to realize that a
two-person resistance band exercise—a common type of exerciseﬂutilizing a two-handled
resistance bandﬂa common piece of gym equipment—would create a high degree of probability
of substantial harm to the members of the class. McNearney’s own expert witness admitted that
resistance band exercises are not per se reckless, and in fact, McNearney had utilized resistance
bands during exercises in the past without incident. Nothing within the undisputed facts before
the trial court indicates that this particular two—person resistance band exercise was more
dangerous than any other, such that a reasonable person should have been aware of a heightened
risk of substantial harm to the participants. At most, the undisputed facts indicate that Woodrum
failed to properly monitor McNearney’s conduct during the exercise to prevent her from holding
the resistance band near her head and face. This failure may have constituted negligent conduct
by Woodrum, but we are unwilling to hold that Woodrum’s actions were “so far from a proper

state of mind” as to be treated as intentional. Hatch, 990 S.W.2d at 139. Thus, Woodrum and

LTF’s actions were not reckless.

B. McNearney failed to create a genuine issue of material fact.

Once LTF established its right to judgment as a matter of law on the basis of the above
undisputed material facts, the burden shifted to McNearney to “set forth speciﬁc facts showing
that there is a genuine issue for trial.” Rule 7404(6). A party cannot rely on its own petition to
provide the necessary evidentiary support for additional facts alleged in response to a summary
judgment motion, as the purpose of summary judgment is to move the parties beyond the bare
allegations in their pleadings. DeCormier, 446 S.W.3d at 672. Accordingly, McNearney’s “only
recourse [was] to show——by afﬁdavit, depositions, answers to interrogatories, or admissions on
ﬁle—that one or more of the material facts shown by the movant to be above any genuine
dispute [was], in fact, genuinely disputed.” TT Commercial Fin. Corp, 854 S.W.2d at 381;
McNearney has failed to do so.

We are mindful that only “[f]acts of such probative value as would control 01' determine

the litigation constitute ‘material facts.” Irwin v. Wal-Mart Stores Inc., 813 S.W.2d 99, 102

(Mo. App. WI). 1991). The record must demonstrate a factual question that would permit a
reasonable jury to return a verdict for the nonmoving party. I_d, Against this backdrop,
McNearney attempted to show the existence of two disputed material facts.5

McNearney ﬁrst attempted to create a genuine issue of material fact by arguing that she
was not aware of the “extreme” recoil properties of the resistance band prior to the date of her
injury. In support of this factual contention, McNearney cited her own afﬁdavit. Additionally,
McNearney attempted to create a genuine issue of materiai fact with respect to the instruction
given by Woodrum. While the parties did not dispute that Woodrum instructed McNearney and

the other class members on how to perform the two-person resistance band exercise generally,

5 There were certain additional disputed facts raised by McNearney that are simply not material. The two facts
discussed below are the only facts present in the record that are of such probative value as would control or
determine the litigation.

McNeamey stated that Woodrum speciﬁcally “instructed and directed [her] to perform the two-
person resistance band exercise in such a way that created a line of pull to [her] head, neck, and
face.” Again, the sole support for this factual contention is found in McNearney’s affidavit.6

A party may not avoid summary judgment by providing inconsistent testimony and then
offering those inconsistencies into the record for the purpose of demonstrating the existence of a
genuine issue of material fact. Stanbrough v. Vitek Sols.= Inc., 445 S.W.3d 90, 103 (Mo. App.
ED. 2014) (citing ITT Commercial Fin. Corp., 854 S.W.2d at 388). “The utility of summary
judgment as a procedure for screening out sham issues of fact would be diminished if a party
who has been examined at length on deposition could raise an issue of fact simply by submitting
an afﬁdavit contradicting his own earlier testimony.” 11. As this Court explained in Stanbrough,
Missouri courts “have applied this principle to exclude an afﬁdavit offered in a summary
judgment proceeding when the affidavit contradicts the afﬁant’s previous swam deposition
testimony.” L]. The only important caveat to this general rule is that the evidence must be
afﬁrmatively contradictory. Calvert v. Pleng , 351 S.W.3d 851, 856 (Mo. App. ED. 2011). We
ﬁnd that McNearney’s affidavit afﬁrmatively contradicts her prior deposition testimony with
regard to each of the two facts above, such that the afﬁdavit fails to create a genuine issue of
material fact sufﬁcient to avoid summary judgment.

First, McNearney’s statement in her afﬁdavit that she was not aware of the “extreme”
recoil properties of the resistance band directly conﬂicts with her extensive deposition testimony
on the issue, as well as with her own responses to LTF’S statement of uncontroverted material

facts. McNearney testiﬁed, and later confirmed that she did not dispute, that she had used a

6 McNeamey also cited Robeits’s afﬁdavit in support of this factual contention. However, Roberts‘s afﬁdavit does
not contain a statement that Woodrum instructed the class members to perform the exercise in a way that created a
line of put! to the participants’ faces. Instead, Roberts’s afﬁdavit only states that Woodrum instructed the class
members and did not “warn” them “about the line of putl associated with the exercise.”

resistance band prior to her injury; that she knew how a two-handled resistance band worked;
that she knew a two-handled resistance band would stretch when the handles were pulled away
from each other and tin-stretch if one handle was released; that she knew if one partner in a two-
person exercise released one handle, the released handle would move in the direction of the other
partner; and that she knew the further a two-handled resistance band was stretched the faster it
would snap back into its original shape. Such testimony directly and afﬁrmatively contradicts
McNearney’s sworn afﬁdavit that she was not aware of the extreme recoil properties of the
resistance band. McNearney’s addition of the adjective “extreme” in her afﬁdavit does nothing
to change this contradiction and fails to create a genuine issue of material fact.

Second, McNearney’s contention in her afﬁdavit that Woodrum speciﬁcally “instructed
and directed [her] to perform the two-person resistance band exercise in such a way that created
a line of pull to [her} head, neck, and face” directly conﬂicts with her prior deposition testimony.
During her deposition, McNearney testiﬁed that Woodrum explained how to do the two-person
resistance band exercise, but that she did not “recall the actual instruction from that day.” She
later testiﬁed that none of the class members were instructed on which resistance bands to use,
and that “individuals were not instructed in any form.” This testimony directly and afﬁrmatively
contradicts McNearney’s sworn statement contained in her later afﬁdavit that Woodrum
instructed and directed her to perform the exercise in such a way that created a line of pull to her
head, neck, and face. Thus, McNearney’s afﬁdavit fails to create a genuine issue of fact as to
this matter.

C. Summary judgment was proper with respect to McNearney’s recklessness claim.

Because LTF demonstrated a right to judgment as a matter of law, and because

McNearney failed to set forth speciﬁc facts showing that there was a genuine issue of disputed

material fact for trial, the trial court properly entered summary judgment in favor of LTF with
respect to McNearney’s recklessness claim. Point Two is denied.
Conclusion

The judgment of the trial court is afﬁrmed.

KiéRT S. ODENWALD, Judge

Sherri B. Sullivan, P.J., concurs.
Lisa S. Van Amburg, C.J., concurs.

Between October 8, 2011, and December 10, 2011, McNearney participated in a “boot
camp” exercise class at LTF. McNearney signed a Fitness Program Agreement relating to her
participation in this class. The Fitness Participants Agreement also contained an exculpatory
clause releasing LTF any liability for its negligent conduct.

On March 5, 2012, McNearney was participating in a different “boot camp” exercise
class at LTF. The class took place on LTF grounds using LTF equipment and was led by
Woodrum, a personal trainer and employee of LTF. During the class, Woodrum instructed the
participants to perform a two-person exercise with a partner involving a two-handled resistance
band. McNearney had never performed this particular exercise but had used resistance bands in
the past, including as part of a two—person partner exercise. Prior to March 5, 2012, McNearney
understood how to use a two-handled resistance band; knew that the resistance band would
stretch when the handles were pulled away from each other and un—stretch if one handle was
released; understood that the further a two-handled resistance band was stretched the faster it
would snap back into its original shape; and knew that if one partner in a two-person exercise
released one handle, the released handle would move in the direction of the other partner.

Prior to McNearney and the other class members participating in the exercise, Woodrum
explained how to perform the two-person resistance band exercise. Woodrum did not
speciﬁcally address the possibile risk of the resistance band recoiling. During the exercise,
McNearney’s partner held the handles of the resistance band, while McNearney stood behind her
partner and held the middle of the resistance band with a towel. McNearney’s partner walked
forward, causing the resistance band to stretch. During the exercise, McNearney’s partner

accidentally released one of the handles of the resistance band. The resistance band recoiied and

struck McNearney in the nose and mouth, breaking McNearney’s nose and damaging or
disiodging several of her teeth.

At the time of her injury, McNearney was assisting her partner by providing resistance.
Woodrum chose the two-person resistance band exercise in question, and all class members were
performing the exercise at the time of McNearney’s injury. Woodrum did not dispute that there
was a strong possibility of injury if a resistance band recoiled and hit an individual in the face.
Woodrum stated that a trainer should always choose the safer exercise when possible. Woodrum
also stated that different equipment could be used for this exercise, but no alternative equipment
was available for this class.

After her injury, McNearney ﬁled suit asserting negligence and recklessness claims
against LTF. LTF ﬁled a motion for summary judgment along with a supporting memorandum
and a statement of uncontroverted material facts. LTF’s motion for summary judgment asserted
that LTF was entitled to judgment as a matter of law because the undisputed facts showed that
(l) McNearney, by executing the Member Usage Agreement and Fitness Program Agreement,
released LTF from any claims based upon LTF’s negligence, and (2) McNearney failed to make
a prima facie case of reckiessness. Additionally, LTF argued that McNearney’s original petition
failed to properly plead avoidance of the release contained in the Member Usage Agreement.

The trial court granted McNearney leave to ﬁle an amended petition which properly pled
avoidance. The amended petition, like the original petition, alleged separate counts of
negligence and recklessness against both Woodrum and LTF.

McNearney ﬁled a response in opposition to LTF’s motion for summary judgment along
with a supporting memorandum, a response to LTF’s statement of uncontroverted material facts,

and a list of additional uncontroverted material facts. LTF ﬁled a reply, along with a response to

McNearney’s statement of uncontroverted material facts and statement of additional
uncontroverted material facts. McNearney subsequently ﬁled a sur-reply to both LTF’s reply
and LTF’S statement of additional uncontroverted material facts.

In support of her responses to LTF’S statements of uncontroverted material facts and her
own statements of uncontroverted material facts, McNearney relied upon four afﬁdavits: one
executed by McNearney herself; one by Judith Roberts (“Roberts”), another participant in the
exercise class during which McNearney was injured; one by Douglas Baumgarten
(“Baumgarten”), McNearney’s proposed expert witness; and one by Melanie Baum (“Baum”), a
paralegal who conducted internet research into resistance band exercise injuries. McNearney
and Woodrum also testiﬁed extensively via deposition.

On March 23, 2015, the trial court entered an “Order/Judgment” granting LTF’s motion

for summary judgment. The trial court did not specify its rationale for granting summary

judgment, other than stating that DeCormier v. Harley-Davidson Motor Co. Grp., Inc., 446

S.W.3d 668, was controlling. This appeal follows.
Points on Appeal

McNearney raises two points on appeal. First, McNearney contends the trial court erred
in granting LTF’s motion for summary judgment on the basis of the Member Usage Agreement
or the Fitness Program Agreement because neither release was a bar to McNearney’s recovery.
Speciﬁcally, McNearney claims the release language contained in these agreements do not bar
her recovery because (1) they were not shown as a matter of law to apply to the exercise class in
which McNearney was injured; (2) McNearney’s injuries were caused by LTF’s enhancement of
any risk she putatively assumed in signing the releases; and (3) the type of injury suffered by

McNearney was different in kind from the injuries for which she had putatively assumed the risk

in signing the releases. Second, McNearney avers the trial court erred in granting LTF’s motion
for summary judgment because LTF did not show that it was entitled to judgment as a matter of
law on the basis of undisputed material facts. Speciﬁcally, McNearney argues that the summary
judgment record includes material facts from which a jury reasonably could conclude that LTF’s
conduct exceeded mere negligence, and instead constituted reckless conduct that is not released
by an exculpatory clause.
Standard of Review

When considering an appeal from a grant of summary judgment, our review is essentially
de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp, 854 S.W.2d 371, 376
(Mo. banc 1993). The propriety of summary judgment is purely an issue of law. 1d, As the trial
court’s judgment is founded on the record submitted and the law, an appellate court need not
defer to the trial court’s order granting summary judgment. I_d. Accordingly, this Court reviews
the record in the light most favorable to the party against whom judgment was entered. 1d; Facts
set forth by afﬁdavit or otherwise in support of a party’s motion are taken as true unless
contradicted by the non-moving party's response to the summary judgment motion, and we
accord the non—movant the benefit of all reasonable inferences from the record. E

Summary judgment is designed to permit the trial court to enter judgment, without deiay,
where the moving party has demonstrated, on the basis of facts as to which there is no genuine
dispute, a right to judgment as a matter of law. m; Ruie 74.04. Summary judgment proceeds
from an analytical predicate that, where the facts are not in dispute, a prevailing party can be
determined as a matter of iaw. ITT Commercial Fin. Corp, 854 SW2d at 376. However,

because summary judgment “borders on denial of due process in that it denies the opposing party

his day in court,” the procedure has long been regarded as “an extreme and drastic remedy”
which should be utilized with “great care.” I_d. at 377.

When a trial court has granted summary judgment without specifying the basis for
granting the motion, this Court may afﬁrm the trial court’s decision under any appropriate
theory. Cent. Missouri Elec. Co-op. v. Balke, 119 S.W.3d 627, 635 (M0. App. W.D. 2003).
Further, if the trial court’s order does not set forth its reasoning, the trial court is presumed to
have based its decision on the grounds speciﬁed in the motion for summary judgment. id,

Discussion

The purpose of summary judgment under Missouri’s fact-pleading regime is to identify
cases (i) in which there is no genuine dispute as to the facts and (2) the facts as admitted show a
legal right to judgment for the movant. ITT Commercial Fin. Corp., 854 S.W.2d at 380. The
burden on the summary judgment movant—here, LTF—is to Show a right to judgment ﬂowing
from facts about which there is no genuine dispute. I_d. at 378. Summary judgment tests simply
for the existence, not the extent, of these genuine disputes. 1d,, The key to summary judgment is

the undisputed right to judgment as a matter of law; not simply the absence of a fact question.

i_d. at 380.

Once the movant has made a prima facie showing that there are no genuine issues of
material fact and that the movant is entitled to judgment as a matter of law, the burden shifts to
the non—movant—here, McNearney. I_d. at 381. Once the burden shifts, the non-movant “may
not rest upon the mere allegations or denials of his pleading, but his response, by afﬁdavits or as
otherwise provided in this Rule 74.04, 311011 sefforth speciﬁcfacrs showing that there is a

genuine issue for trial.” Id.; Rule 74.04(e). Thus, at that point “the non-movant’s only recourse

is to show—by afﬁdavit, depositions, answers to interrogatories, or admissions on ﬁle—that one

or more of the material facts shown by the movant to be above any genuine dispute is, in fact,
genuinely disputed.” iTT Commercial Fin. Corp, 854 S.W.2d at 381.

LTF’s motion for summaryjudgment claimed that LTF was entitled to judgment as a
matter of law because (1) McNearney, by executing the Member Usage Agreement, released
LTF from its own negligence, and (2) McNearney faiied to make a prima facie case of
recklessness. I

The non-movant never needs to establish a right to judgment as a matter of law; instead,
“the non-movant need only show that there is a genuine dispute as to the facts underlying the
movant’s right to judgment.” Li. at 381-82. McNearney made claims for both negligence and
recklessness in her amended petition, meaning summary judgment in favor of LTF was only
appropriate if LTF demonstrated the right to judgment as a matter of law based on undisputed
facts with respect to each claim. We will consider each in turn.

I. Point One—Member Usage Agreement

McNearney contends that neither the Member Usage Agreement nor the Fitness Program
Agreement act as a bar to her negligence claim. As a result, McNearney maintains the trial court
erred to the extent it granted summary judgment on the basis that either agreement did so.

The summary judgment evidence is clear that the Fitness Program Agreement does not
bar McNearney’s negligence claim. LTF concedes, and conceded before the trial court during
the extensive litigation surrounding the motion for summaryjudgment, that the Fitness Program
Agreement signed by McNearney was applicable only to an earlier exercise class in which

McNearney participated, and not to the exercise class in which McNearney was injured.

However, we hold that exculpatory clause contained within the Member Usage Agreement is

1 LTF also argued that McNearney’s originai petition failed to properly plead avoidance of the reiease contained in
the Member Usage Agreement. This argument was subsequently rendered moot when the trial court granted
McNearney’s request to ﬁie an amended petition which properly pied avoidance.

applicable and unambiguous, and precludes McNearney from pursuing a claim of negligence
against LTF.

Exculpatory clauses which release an individual or entity from his or her own future
negligence, while disfavored, are not prohibited as against public policy. Alack v. Vic Tanny

lnt’l of Missouri Inc., 923 S.W.2d 330, 334 (Mo. banc 1996). However, such clauses will be

“strictly construed against the party claiming the beneﬁt of the contract, and clear and explicit
language in the contract is required to absolve a person from such liability.” Hornbeck v. All
American Indoor Sports: Inc., 898 S.W.2d 717, 721 (Mo. App. W.D. 1995). Missouri courts
“require clear, unambiguous, unmistakable, and conspicuous language in order to release a party

from his 01' her own future negligence.” Alack, 923 S.W.2d at 337. The exculpatory language

must effectively notify a party that he 01' she is releasing the other party from claims arising from
the other party's own negligence; general language will not sufﬁce. Id. As a result, “[t]he words
‘negligence’ or ‘fault’ or their equivalents must be used conspicuously so that a clear and
unmistakable waiver and shifting of risk occurs.” I_d. There must be no doubt that a reasonable
person agreeing to an exculpatory clause actually understands what future claims he 01' she is
waiving. E at 337-338.

Missouri courts ruling on the issue have held that an exculpatory clause must clearly and

explicitly state the nature and extent of the waiver. & Alack, 923 S.W.2d 330; Easley v. Gray

Wolf Investments LLC, 340 S.W.3d 269 (Mo. App. ED. 2011). In considering the ambiguity of
language used in an exculpatory clause waiving negligence, a “key factor” is the actual presence
of the words “negligence” or “fault.” Abbott v. Epic Landscape Productions, L.C., 361 S.W.3d
l3, 17 (Mo. App. W.D. 2011). “The words ‘negligence’ or ‘fauit’ or their equivalents must be

used conspicuously.” Li.

The parties do not dispute the relevant facts regarding the Member Usage Agreement.
Neither party disputes that McNearney signed the Member Usage Agreement or that the Member
Usage Agreement included a paragraph purporting to release LTF from claims for its own
negligence. Speciﬁcally, the Member Usage Agreement signed by McNearney contained a
paragraph entitled “RELEASE OF LIABILITY” in large, bold capital letters. The paragraph
read as follows:

I waive any and all claims or actions that may rise against Life Time Fitness, Inc.,

its afﬁliates, subsidiaries, successors or assigns (collectively “Life Time Fitness”)

as well as each party’s owners, directors, employees or volunteers as a result of

such injury, loss, theft or damage to any such person, including, and without

limitation, personal, bodily or mental injury, economic loss or any damage to me,

my spouse, my children, or guests resulting ﬂow the negligence of Life Time

Fitness or anyone using a Life Time Fitness Center. I agree to defend, indemnify

and hold Life Time Fitness harmless against any claims arising out of the

negligent or willful acts or omissions of me, any person that is a part of my

membership, or any guest under this membership. (emphasis added)
The next paragraph, in large, bold capital letters, stated: “I HAVE READ AND AGREE TO
THE TERMS AND CONDITIONS ABOVE, INCLUDING, BUT NOT LIMITED TO,
THE ASSUMPTION OF RISK AND RELEASE OF LIABILITY, AND I HAVE
RECEIVED A COMPLETE COPY OF MY MEMBER USAGE AGREEMENT.”
McNearney’s electronic signature follows, dated June 30, 2008.

Consistent with the requirements of Missouri law, the exculpatory language contained in
the Member Usage Agreement was clear, conspicuous, and unambiguous, and acts as a bar to
McNearuey’s negligence claim against LTF. The language releasing LTF from its own
negligence speciﬁcally uses the term “negligence” and is explicit in its wording. In fact,
similarly—worded exculpatory clauses releasing parties from their own negligence have been

upheld as unambiguous by Missouri courts. ,Sgg, §,g,, Easley, 340 S.W.3d at 271 (releasing

Operator from “all liability and claims... including losses occasioned or caused by negligence,