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March 2nd, 2022
When Peter and Maya Milshteyn joined the L.A. Fitness facility in 2011 they executed a Membership Agreement. In 2017, the Milshteyns were in the pool area of the L.A. Fitness at the time of a power outage. Peter slipped while descending the stairs from the pool to the locker room in the dark. As a result of his fall, Peter sustained a fracture to his right elbow. The Milshteyns filed a complaint on May 16, 2019, which included Peter’s claim for premises liability – slip and fall, and Maya’s claim for loss of consortium. Milshteyn v. Fitness International, LLC d/b/a LA Fitness, 2022 PA Super 30 (January 18, 2021) The complaint alleged that L.A. Fitness employees were negligent in, inter alia, creating the dangerous condition of “low or no lighting,” failing to inspect or repair the area where Peter fell, and failing to warn Peter of the defective condition.
In its Answer to the Complaint, LA Fitness asserted, inter alia, that the Milshteyns’ claims were barred by the terms of their Membership Agreement. Later, LA Fitness filed a motion for summary judgment again asserting that the Milshteyns’ Membership Agreement precluded their claims. The Membership Agreement included the following language:
IMPORTANT: RELEASE AND WAIVER OF LIABILITY AND INDEMNITY. You hereby acknowledge and agree that use by Member … 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 … 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 … for any loss or damages, 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 active or passive negligence of L.A. Fitness or otherwise…Such risk of injury includes… accidental injuries occurring anywhere in Club dressing rooms, shower and other facilities....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.
Additionally, the line immediately preceding Peter’s signature reads, “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 … the Release and Waiver of Liability….”
In response, the Milshteyns averred that there was a genuine issue of material fact “regarding whether [Peter], who speaks and understands only basic English, understood the nature of the Membership Agreement.” The Milshteyns also argued that the Membership Agreement constitutes a contract of adhesion, which is unconscionable, and therefore unenforceable. Additionally, the Milshteyns’ claim that La Finess’ conduct was grossly negligent, and that the Membership Agreement does not apply to such conduct.
The trial court granted LA Fitness’ motion for summary judgment. Specifically, the trial court concluded that the release contained in the Membership Agreement foreclosed the Milshteyns’ claims; the Milshteyns did not establish that the Membership Agreement was a contract of adhesion; and the Milshteyns could not raise a gross negligence claim for the first time in response to La Fitness’ summary judgment motion, effectively amending their complaint after the statute of limitations had run.
On appeal, the Pennsylvania Superior Court discussed exculpatory provisions in contracts, which are generally enforceable if they are clear and meet three other conditions:
It is generally accepted that an exculpatory clause is valid where three conditions are met. First, the clause must not contravene public policy. Secondly, the contract must be between persons 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. [O]nce an exculpatory clause is determined to be valid, it will, nevertheless, still be unenforceable unless the language of the parties is clear that a person is being relieved of liability for his own acts of negligence. In interpreting such clauses we listed as guiding standards that: 1) the contract language must be construed strictly, since exculpatory language is not favored by the law; 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) the language of the contract must be construed, in cases of ambiguity, against the party seeking immunity from liability; and 4) the burden of establishing the immunity is upon the party invoking protection under the clause.
Chepkevich v. Hidden Valley Resort, L.P., 2 A.3d 1174, 1189 (Pa. 2010). In Toro v. Fitness Int’l LLC, 150 A.3d 968 (Pa. Super. 2016), this Court addressed the same exculpatory provision in an L.A. Fitness Membership Agreement and concluded that the provision was enforceable. In Toro, the Court held that exculpatory provisions violate public policy only when they involve a matter of interest to the public or the state, and Toro was merely engaged in a voluntary athletic or recreational activity, i.e., going to the gym.” The Toro Court also determined that the contract was not one of adhesion, explaining that “an exculpatory agreement involving use of a commercial facility for voluntary athletic or recreational activities is not considered a contract of adhesion because 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….” The Court also rejected the contention that Peter Milshteyn did not understand the agreement when he signed it.
Finally, the Court ruled that while the Membership Agreement does not preclude liability for injuries arising from grossly negligent conduct, the Milshteyns did not plead gross negligence in their Complaint. Here, the Court determined that gross negligence is substantively different from ordinary negligence, and therefore, was a wholly new cause of action. See Aetna Cas. & Sur. Co. v. Roe, 650 A.2d 94, 103 (Pa. Super. 1994); Kibler v. Blue Knob Rec., Inc., 184 A.3d 974, 984-85 (Pa. Super. 2018).
