(dissenting).
I respectfully dissent. I would hold, as did the trial court, that the contract between the parties was a contract of adhesion between parties of disparate bargaining power and, consequently, unenforceable.
Part of the problem is that although plaintiff has the burden of proof in seeking avoidance of the exculpatory clause, she chose to rely solely on the discovery depositions in opposing defendant’s motion for summary judgment, particularly her own deposition taken by defense counsel. Consequently, the circumstances relating to the contract were not fully developed nor supplemented by any affidavit. The validity of an exculpatory clause cannot be decided in the abstract.
This much, however, is clear. Ms. Schlo-bohm, as a prospective customer, was presented with a printed contract form, which had been prepared unilaterally by Spa Petite. Ms. Schlobohm signed the contract freely after looking it over “somewhat.” The contract, a well-designed, attractive four-page printed brochure, would seem to discourage someone considering becoming a member of the health club from negotiating a change in the rules applicable for all members of the club. (At the time, Spa Petite operated not only the club at Owatonna but others in the Minneapolis area, all, apparently, with reciprocal privileges.)
No contract negotiations took place, and there is an inference at least that Ms. Schlo-bohm understood that membership in the club was offered on a “same as everybody else” and a “take it or leave it” basis. This inference seems reasonable, for otherwise it is difficult to understand why Ms. Schlo-bohm would readily agree that her presence at the spa was “at member’s sole risk” and that Spa Petite would not be liable for any claim “whatsoever.” It certainly seems that the parties were not really bargaining and clearly not from positions of anywhere near equal bargaining strength. And while it cannot be said that Spa Petite was offering a service “necessary” to the public in the strict sense of the word, the emphasis in its contract brochure was not on the spa as a recreational program but as a program of “community service” to promote good health. (Statistics on heart disease and low back pain are cited.) Finally, there is a finding by the trial court that defendant’s facilities “were the only health-club facilities of their kind existing in Owatonna, Minnesota, at the time plaintiff Sandra C. Schlobohm executed said contract.” While it appears, as the majority notes and the defendant argues, that there is no precise factual basis in the record for this finding, it does not appear that this fact is really in dispute.
Our approach to cases involving the validity of exculpatory clauses should be, as the majority says, on an ad hoc case-by-case basis. In this instance, it does not seem to me that the public policy favoring parties being able to make their own bargain is so compelling as to justify the dominant contracting party imposing such a far-reaching disclaimer of its own negligence.