J-S06017-18
2018 PA Super 113
DOLORES VINSON : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
FITNESS & SPORTS CLUBS, LLC, : No. 2875 EDA 2016
FITNESS INTERNATIONAL, LLC, LA :
FITNESS INTERNATIONAL, LLC :
Appeal from the Order Entered August 11, 2016
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 150703082
BEFORE: BOWES, J., McLAUGHLIN, J., and MUSMANNO, J.
OPINION BY McLAUGHLIN, J.: FILED MAY 04, 2018
Dolores Vinson appeals from the trial court’s August 11, 2016 order
granting summary judgment in favor of Appellee, Fitness International, LLC
(f/k/a L.A. Fitness International, LLC)(“L.A. Fitness”). We affirm.
L.A. Fitness operates fitness clubs/gyms, including the one here at issue,
which is located in Huntingdon Valley, Pennsylvania. Vinson became a member
of this fitness facility on July 4, 2012, when she signed a three-page
membership agreement (“Membership Agreement”). The first page of the
Membership Agreement states, inter alia, that L.A. Fitness and the
undersigned buyer agree “that you are purchasing a membership from L.A.
Fitness according to the terms on both pages of this Membership Agreement
and the Membership Policies and Club Rules and Regulations . . . .”
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Membership Agreement at 1. Vinson signed the Membership Agreement at the
bottom of page 1.
The second page of the Member Agreement contains an exculpatory
provision (“Exculpatory Clause”) that is printed enclosed in a black box. The
Exculpatory Clause reads as follows:
IMPORTANT: RELEASE AND WAIVER OF LIABILITY AND
INDEMNITY. You hereby acknowledge and agree that use by
Member and/or by Members minor children of L.A. 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 Member’s minor children being permitted to enter
any facility of L.A. 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 L.A. 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 L.A. Fitness or otherwise, to the fullest
extent permitted by law, while Member or Member’s minor
children are in, upon, or about L.A. Fitness premises or using any
L.A. Fitness facilities, services or equipment. Member also hereby
agrees to indemnify L.A. Fitness from any loss, liability, damage
or cost L.A. Fitness may incur due to the presence of Member or
Member’s children in, upon or about the L.A. Fitness premises or
in any way observing or using any facilities or equipment of L.A.
Fitness whether caused by the negligence of Member(s) or
otherwise. You represent (a) that Member and Member's minor
children are in good physical condition and have no disability,
illness, or other condition that could prevent Member(s) from
exercising without injury or impairment of health, and (b) that
Member has consulted a physician concerning an exercise
program that will not risk injury to Member or impairment of
Members health. Such risk of injury includes (but is not limited
to): injuries arising from use by Member or others of exercise
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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.
Membership Agreement at 2 (emphasis added).
According to her deposition testimony, Vinson acknowledges signing the
Membership Agreement, although she does not recall reading the document
at the time she signed it. Vinson Deposition Testimony, 5/10/16, at 71-73.
Directly above the signature line of the Membership Agreement, the following
language is provided: “By signing this Agreement, Buyer acknowledges that
Buyer . . . has received a filled-in and completed copy of the Agreement has
read and understands the entire agreement including but not limited to . . .
the Release and Waiver of Liability and Indemnity . . . .” Membership
Agreement at 1.
On July 28, 2015, Vinson filed a complaint against L.A. Fitness, sounding
in negligence. Specifically, Vinson claimed that on October 1, 2013, she
tripped and fell on a wet floor mat causing her to suffer serious and permanent
personal injuries. Vinson’s Complaint at 2. In short, Vinson averred that L.A.
Fitness’s negligence regarding the maintenance of the premises caused the
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conditions that directly resulted in her injuries. Id. 2-4. L.A. Fitness filed an
Answer and New Matter on September 3, 2015, wherein it asserted that
Vinson’s claim was barred by the Exculpatory Clause. Vinson countered by
filing a Reply on October 1, 2015.
L.A. Fitness filed a Motion for Summary Judgment on June 30, 2016,
claiming that (1) Vinson could not demonstrate that L.A. Fitness created or
had notice of the wet mat; (2) Vinson had not provided the requisite expert
to establish the applicable standard of care; and (3) the Exculpatory Clause
precluded recovery. The trial court granted L.A. Fitness’s motion on August
11, 2016, without further explanation. Vinson filed a court-ordered Pa.R.A.P.
1925(b) Statement of Matters Complained of on Appeal and, in a Rule 1925(a)
Opinion, the trial court explained that it granted L.A. Fitness’s Motion for
Summary Judgment on the basis of the Exculpatory Clause. The instant timely
appeal followed.
Vinson raises two issues for our review:
1. Whether the trial court abused its discretion and
otherwise committed an error of law when it improperly
granted [L.A. Fitness’s] Motion for Summary Judgment?
2. Whether the trial court abused its discretion and
otherwise committed an error of law when it improperly
granted [L.A. Fitness’s] Motion for Summary Judgment
where there exists a genuine dispute as to material fact
as to whether important public policy issues are
implicated and render the exculpatory provision
unenforceable?
Vinson’s Brief at 6.
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The crux of both of Vinson’s issues lies in her contention that the
Exculpatory Clause is invalid because it contravenes public policy. Vinson
specifically asserts that her claim involves a vital matter of public health and
safety. She argues that her cause of action involves the maintenance of
facilities, which concerns the obvious health and safety of members of the
public. To this end, she relies upon Leidy v. Deseret Enterprises, Inc., 381
A.2d 164 (Pa.Super. 1977) (vacating grant of judgment on pleadings where
plaintiffs had pleaded that exculpatory provision in spa contract was
unconscionable).
Conversely, L.A. Fitness contends that the Exculpatory Clause does not
violate public policy because the Membership Agreement constituted a
contract between private parties and did not involve any public entity or
concern. In support, L.A. Fitness specifically points to this Court’s recent
decisions in Toro v. Fitness International LLC., 150 A.3d 968 (Pa.Super.
2016) (holding that same exculpatory clause as is at issue here was
enforceable and not contrary to public policy),1 and Hinkal v. Pardoe, 133
A.3d 738 (Pa.Super. 2016), appeal denied, 141 A.3d 481 (Pa. 2016) (holding
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1 Vinson argues that Toro should not be applicable to the instant matter
because that case was decided several months after the trial court granted
L.A. Fitness summary judgment in this case. However, it is well settled that
“[n]ormally, we apply a new decision to cases pending on appeal at the time
of the decision. The general rule followed in Pennsylvania is that we apply the
law in effect at the time of the appellate decision.” Christy v. Cranberry
Volunteer Ambulance Corps, Inc., 856 A.2d 43, 51 (Pa. 2004) (citations
and quotations omitted). Therefore, we discern no err in the application of
Toro to the instant case.
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exculpatory provision in gym membership agreement to be valid and
enforceable). The trial court agreed with L.A. Fitness, finding the Exculpatory
Clause “to be valid and enforceable against the [] arguments raised by
[Vinson].” Trial Court Op., 8/28/17, a 2. We agree with the trial court, and
conclude that no relief is due.
We begin by noting that an order granting summary judgment is subject
to the following scope and standard of appellate review:
A reviewing court may disturb the order of the trial court only
where it is established that the court committed an error of law or
abused its discretion. As with all questions of law, our review is
plenary.
In evaluating the trial court’s decision to enter summary
judgment, we focus on the legal standard articulated in the
summary judgment rule. [Pa.R.C.P. 1035.2.] The rule states that
where there is no genuine issue of material fact and the moving
party is entitled to relief as a matter of law, summary judgment
may be entered. Where the nonmoving party bears the burden of
proof on an issue, he may not merely rely on his pleadings or
answers in order to survive summary judgment. Failure of a non-
moving party to adduce sufficient evidence on an issue essential
to his case and on which he bears the burden of proof… establishes
the entitlement of the moving party to judgment as a matter of
law. Lastly, we will review the record in the light most favorable
to the non-moving party, and all doubts as to the existence of a
genuine issue of material fact must be resolved against the
moving party.
Toro, 150 A.3d at 972 (quoting Murphy v. Duquesne Univ. of the Holy
Ghost, 777 A.2d 418, 429 (Pa. 2001)).
The Pennsylvania Supreme Court has held that exculpatory provisions
in contracts are valid where three conditions are met: “First, the clause must
not contravene public policy. Secondly, the contract must be between persons
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relating entirely to their own private affairs and thirdly, each party must be a
free bargaining agent to the agreement so that the contract is not one of
adhesion.” Chepkevich v. Hidden Valley Resort, L.P., 2 A.3d 1174, 1189
(Pa. 2010) (holding exculpatory provision contained in contract regarding
season pass at ski resort was valid and did not contravene public policy).
When embarking on a public policy analysis, we recognize that
exculpatory provisions “violate public policy only when they involve 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.” Seaton v. E. Windsor Speedway,
Inc., 582 A.2d 1380, 1382 (Pa.Super. 1990). Our Supreme Court has set a
high bar that a party must clear before a court may invalidate a contract on
public policy grounds:
It is only when a given policy is so obviously for or against the
public health, safety, morals or welfare that there is a virtual
unanimity of opinion in regard to it, that a court may constitute
itself the voice of the community in so declaring [that the contract
is against public policy].
Williams v. GEICO Gov’t Employees Ins. Co., 32 A.3d 1195, 1200 (Pa.
2011) (citation omitted). “[P]ublic policy is to be ascertained by reference to
the laws and legal precedents and not from general considerations of
supposed public interest.” Id.
The case sub judice is very similar to Toro. In that case, this Court
considered whether the same exculpatory clause here at issue, employed by
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the same Appellee, L.A. Fitness, violated public policy. In Toro, the plaintiff
slipped and fell on what he described as an “unusual buildup” of “soapy water”
on the floor. Toro, 150 A.3d at 971. The trial court granted summary
judgment in favor of L.A. Fitness on the basis of the exculpatory clause. Our
Court affirmed and specifically concluded that the exculpatory clause did not
contravene public policy:
Here, as in Chepkevich, Toro was engaged in a voluntary athletic
or recreational activity: going to the gym. Before he was injured,
he signed an agreement that explicitly provided that, by signing
it, he waived all claims for any injury he suffered at the L.A.
Fitness facility, even if the injury was caused by the negligence of
L.A. Fitness. As in Chepkevich the Waiver Clause in this case is
not contrary to public policy and the trial court therefore was
correct in reaching that conclusion.
Id. at 974.
Vinson attempts to distinguish Toro by emphasizing factual differences.
She claims the plaintiff’s injury there involved a transient hazard, i.e., an
unusual build-up of water, whereas here, Vinson contends, the wet mat
indicated a systemic problem with facility maintenance. Therefore, according
to Vinson, this case more strongly implicates the public interest in health and
safety. However, we find this distinction unavailing because both cases involve
private individuals engaged in recreational activity, which is not classifiable as
a matter of public or state interest. See Seaton, 582 A.2d at 1382; Williams,
32 A.3d at 1200.
Likewise, this Court’s decision in Hinkal also supports the trial court’s
grant of summary judgment in this case. There, we upheld a similar
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exculpatory provision within a Gold’s Gym membership agreement, thereby
barring a personal injury claim purportedly sustained during a personal
training session at that gym. In so holding, we emphasized that “the
exculpatory language at issue cannot be said to violate public policy because
it was an agreement between a private individual and entities, and because it
did not address matters of interest to the public or the state.” Hinkal, 133
A.3d at 742.2 Vinson attempts to distinguish Hinkal by highlighting that the
injury in that case occurred during the course of athletic pursuits, whereas
Vinson alleges she sustained injuries due to faulty maintenance. Once again,
we find this factual distinction to be of no movement because of the private
nature of the Membership Agreement.
Vinson argues that this case is more closely akin to Leidy. There, this
Court concluded that a spa contract’s exculpatory provision did not entitle the
spa to judgment on the pleadings. A physical therapist at the spa had
performed services on the plaintiff that caused injury and were directly
contrary to a doctor’s directives. Leidy, 381 A.2d at 166. The spa had pleaded
the exculpatory provision as a defense to the action, and the plaintiff had
pleaded in response that the provision was unenforceable because it was
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2 We acknowledge that Judge Lazarus, joined by Judge Panella, authored a
dissent in Hinkal wherein they opined that personal training services
substantially concern “health and safety” to the extent that the exculpatory
provision at issue there was invalid as it violated public policy. Significantly,
the majority in Hinkal, sitting en banc, disagreed with this view and, in any
event, the instant case does not involve personal training services.
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unconscionable. Id. Noting that the case was only at the pleading stage, and
not before us on appeal from the grant of summary judgment, we reversed
the grant of judgment on the pleadings. Id. 169. We pointed out that the
spa’s physical therapist was subject to the Physical Therapy Practice Act, 63
P.S. §§ 1301-1313, which permits physical therapists to perform treatments
only pursuant to a physician’s orders.3 We explained that the statute
supported the claim that the exculpatory clause was unconscionable. Id. We
held that because the plaintiffs had pleaded the unconscionability of the
exculpatory provision, the entry of judgment on the pleadings was improper.
Id. at 170.
This case is on entirely different footing than Leidy. This case comes to
us on appeal from an order granting summary judgment, not judgment on the
pleadings. The procedural posture matters because here, unlike in Leidy, the
determination of whether the defendant was entitled to judgment as a matter
of law was based not on contradictory allegations in pleadings, but on the
parties’ arguments and evidence, developed after a full opportunity for
discovery.
Here, Vinson was voluntarily engaged in recreational activity, attending
the gym, and was subject to the Membership Agreement, an agreement
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3 See 63 P.S. § 1309 (“Any person licensed under this act as a physical
therapist shall not treat human ailments by physical therapy or otherwise
except by the referral of a person licensed in this State as a physician . . .”).
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between private parties. Vinson has not identified any statutory provision, no
administrative regulation, or any legal precedent to support her claim that the
Exculpatory Clause was unenforceable. She instead relies on mere
suppositions of the public interest, which are insufficient to invalidate a
contract provision for violation of public policy. See Williams, 32 A.3d at
1200. Thus, Vinson’s issues on appeal lack merit.4 Accordingly, we affirm the
trial court’s entry of summary judgment in favor of L.A. Fitness.
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4 In a footnote, Vinson asserts, for the first time on appeal, that she might not
have even received the Exculpatory Clause because it was printed on the
second page of the Membership Agreement and she only signed the first page.
Vinson’s Brief at 15. This argument is waived. See Pa.R.A.P. 302(a) (“Issues
not raised in the lower court are waived and cannot be raised for the first time
on appeal”). However, even were it not waived, Vinson’s claim lacks merit
because she acknowledged receiving the Exculpatory Clause via the language
just above the signature line on the first page of the Membership Agreement.
The language states that she “has received a filled-in and completed copy of
the Agreement has read and understands the entire agreement including but
not limited to . . . the Release and Waiver of Liability and Indemnity.” Further,
whether Vinson took the time to read the Exculpatory Clause is beside the
point. It is well settled that “failure to read [the contract] is an unavailing
excuse or defense and cannot justify an avoidance, modification or nullification
of the contract or any provision thereof.” In re Estate of Olson, 291 A.2d
95, 98 (Pa. 1972) (citation omitted).
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/4/18
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