Fresnedo v. Porky's Gym III , 271 So. 3d 1185 ( 2019 )


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  •        Third District Court of Appeal
    State of Florida
    Opinion filed April 24, 2019.
    Not final until disposition of timely filed motion for rehearing.
    ________________
    No. 3D17-1126
    Lower Tribunal No. 16-4301
    ________________
    Lazaro Fresnedo,
    Appellant,
    vs.
    Porky's Gym III, Inc.,
    Appellee.
    An Appeal from the Circuit Court for Miami-Dade County, Thomas J.
    Rebull, Judge.
    Eaton & Wolk, PL, and Douglas F. Eaton, for appellant.
    Law Offices of Cara Morris, PL, and Cara C. Morris (Palm Beach Gardens),
    for appellee.
    Before EMAS, C.J., and FERNANDEZ and LOGUE, JJ.
    EMAS, C.J.
    Lazaro Fresnedo filed a complaint against Porky’s Gym III, Inc., alleging he
    sustained serious injuries when he was knocked unconscious by another customer
    (Mr. Coto) who was using the gym that day on a single-day pass.1
    In his complaint, Fresnedo alleged that Porky’s had a legal duty to ensure
    that it maintained its premises in a safe manner, free from dangers of which it
    knew or reasonably should have known, and to warn Fresnedo of any dangers of
    which it knew or reasonably should have known. The complaint further alleged
    that Porky’s breached its duties to Fresnedo by allowing Mr. Coto on the premises
    without first obtaining the information required to issue a single-day pass; by
    failing to warn Fresnedo regarding Mr. Coto’s behavior; and by failing to remove
    Mr. Coto from the facility (who allegedly displayed aggressive behavior prior to
    his attack on Fresnedo).
    Porky’s moved for summary judgment based upon the affirmative defenses
    of waiver and assumption of the risk, relying upon a waiver and release form
    signed by Fresnedo when he became a member of Porky’s. Following a hearing,
    the trial court granted final summary judgment in favor of Porky’s. This appeal
    followed. We review the issue de novo, Volusia County v. Aberdeen at Ormond
    Beach, L.P., 
    760 So. 2d 126
     (Fla. 2000), and consider the record in a light most
    1 Fresnedo sustained facial fractures as a result of the attack and underwent facial
    reconstructive surgery. The individual who attacked Fresnedo was later arrested
    and charged with a felony.
    2
    favorable to the non-moving party. Turner v. PCR, Inc., 
    754 So. 2d 683
     (Fla.
    2000); Davis v. Baez, 
    208 So. 3d 747
     (Fla. 3d DCA 2016).
    Exculpatory clauses, such as the one at issue here, “that purport to deny an
    injured party the right to recover damages from another who negligently causes
    injury are strictly construed against the party seeking to be relieved of liability.”
    Gillette v. All Pro Sports, LLC, 
    135 So. 3d 369
    , 370 (Fla. 5th DCA 2014). In
    addition, courts are required to read such clauses in pari materia, giving meaning
    to each of its provisions, to determine whether the intention to be relieved was
    made clear and unequivocal in the contract, such that an ordinary person would
    know what he was contracting away. See Covert v. S. Fla. Stadium Corp., 
    762 So. 2d 938
    , 940 (Fla. 3d DCA 2000); Sunny Isles Marina, Inc. v. Adulami, 
    706 So. 2d 920
    , 922 (Fla. 3d DCA 1998). See also Sanislo v. Give Kids the World, Inc., 
    157 So. 3d 256
    , 260-61 (Fla. 2015) (holding: “Exculpatory clauses are unambiguous
    and enforceable where the intention to be relieved from liability was made clear
    and unequivocal and the wording was so clear and understandable that an ordinary
    and knowledgeable person will know what he or she is contracting away”);
    Diodato v. Islamorada Asset Mgmt., Inc., 
    138 So. 3d 513
    , 517 (Fla. 3d DCA 2014)
    (reiterating the “well-settled principle that [exculpatory] clauses are disfavored and
    are narrowly construed” and reversing summary judgment where exculpatory
    clause at issue was not “clear and unequivocal” in its attempt to release defendant
    3
    from liability for specific act of negligence); Gillette, 
    135 So. 3d at 370
    ; Tatman v.
    Space Coast Kennel Club, Inc., 
    27 So. 3d 108
    , 110 (Fla. 5th DCA 2009) (noting
    that the wording of an exculpatory clause “must be so clear and understandable
    that ‘an ordinary and knowledgeable person will know what he is contracting
    away’”) (quoting Gayon v. Bally’s Total Fitness Corp., 
    802 So. 2d 420
    , 421 (Fla.
    3d DCA 2001)); Murphy v. Young Men’s Christian Ass’n of Lake Wales, Inc.,
    
    974 So. 2d 565
     (Fla. 2d DCA 2008); Orkin Exterm. Co. v. Montagano, 
    359 So. 2d 512
    , 514 (Fla. 4th DCA 1978) (holding that because “we do not look with favor on
    exculpatory clauses, we must require the draftsmen of all contracts which contain
    them to use clear and unequivocal language totally without a hint of deceptive
    come-on, or inconsistent clauses”).
    After reviewing the waiver and release form signed by Fresnedo, we cannot
    say that the exculpatory clauses at issue clearly and unequivocally waived Porky’s
    liability for the negligence alleged by Fresnedo in his complaint. We therefore
    reverse the final judgment and remand for further proceedings.
    For its contrary position, the dissenting opinion relies exclusively on a single
    paragraph of the release (paragraph Four), in which Fresnedo agreed that he would
    “assume full responsibility for any risk of bodily injury, death or negligence of any
    of the clubs or otherwise while [I am] on the premises occupied by any of the
    clubs.”
    4
    Although this single paragraph of the release relied upon by the dissent may
    itself be plain and clear, the release is not comprised of a single paragraph, and we
    must read paragraph Four together with the other paragraphs of the release to
    determine whether “an ordinary and knowledgeable person will know what he is
    contracting away.” Gayon, 
    802 So. 2d at 421
    .
    The three paragraphs immediately preceding the paragraph relied upon by
    the dissent provide as follows (all emphasis added):
    1. You understand that the use of the Clubs’ facilities and
    equipment tests a person’s physical limits and carries with it a
    potential for serious injury and/or death, such as injuries caused
    by weights falling, equipment malfunctioning, cables snapping,
    defects in or improper maintenance of equipment or premises,
    inadequate supervision or instruction, intentional or unintentional
    misuse of the equipment (by you or others), the negligent acts of
    others with regard to the facilities and equipment (including the
    actions of any employees of the Club), and other dangers inherent
    in strenuous physical activity. You are aware of and accept these
    risks. You also understand and agree that it is your sole
    responsibility to determine whether you are sufficiently fit and/or
    healthy enough to safely use the equipment and/or facilities of any
    of the Clubs. You affirm that you will be sufficiently fit and
    physically trained to use the equipment of the Clubs you choose to
    use.
    2. In consideration of your membership with any of the Clubs, you,
    for yourself, and for anyone else who can claim through you, hereby
    release each of the Clubs, and their employees, officers, directors, and
    agents, from any claim (of any nature whatsoever) that you may have,
    now or in the future, for any injuries you incur while you are on the
    premises occupied by any of the Clubs, such as heart attacks,
    muscle strains, pulls or tears, broken bones, shin splints, heat
    prostration, knee/lower back/foot injuries, and any other illness,
    soreness or injury however caused, occurring during or after your
    5
    use of the equipment or facilities of any of the Clubs, whether
    caused by the active or passive negligence of any of the Clubs.
    3. Additionally, you, for yourself, and for anyone else who can claim
    through you, hereby release each of the Clubs, and their employees,
    Officers, directors, and agents, from any claims (of any nature
    whatsoever) that you may have, now or in the future, for any damage
    to any of your property incurred while you are on the premises
    occupied by any of the Clubs, whether caused by the active or passive
    negligence of any of the Clubs or otherwise.
    The fourth paragraph reads:
    4. YOU ASSUME FULL RESPONSIBILITY FOR ANY RISK
    OF BODILY INJURY, DEATH OR PROPERTY DAMAGE
    DUE TO THE NEGLIGENCE OF ANY OF THE CLUBS
    OR OTHERWISE    WHILE   YOU    ARE   ON   THE
    PREMISES OCCUPIED BY ANY OF THE CLUBS.
    Paragraph Four does indeed provide that the member assumes “full
    responsibility for any risk of bodily injury [or] death due to the negligence of the
    clubs.” However, that language cannot be read in isolation, but instead must be
    read and understood in light of, and together with, the language of preceding
    paragraphs One and Two. Those two paragraphs address the “risk of bodily
    injury” in much greater detail than paragraph Four, yet inexplicably do so in the
    specific context of:
    - “the use of the Clubs’ facilities and equipment [which] tests a person’s
    physical limits and carries with it a potential for serious injury and/or death,
    such as injuries caused by weights falling, equipment malfunctioning,
    cables snapping, defects in or improper maintenance of equipment or
    premises, inadequate supervision or instruction, intentional or unintentional
    6
    misuse of the equipment (by you or others), the negligent acts of others with
    regard to the facilities and equipment (including the actions of any
    employees of the Club), and other dangers inherent in strenuous physical
    activity.” (Paragraph One)
    - “injuries you incur while you are on the premises occupied by any of the
    Clubs, such as heart attacks, muscle strains, pulls or tears, broken bones,
    shin splints, heat prostration, knee/lower back/foot injuries, and any other
    illness, soreness or injury however caused, occurring during or after your
    use of the equipment or facilities of any of the Clubs, whether caused by the
    active or passive negligence of any of the Clubs.” (Paragraph Two)
    If (as the dissent posits) the broad language contained in paragraph Four is
    so plain, clear, unambiguous and all-encompassing, why would paragraphs One
    and Two be necessary at all? These three paragraphs (One, Two and Four), when
    read together, could reasonably lead a person to believe that the “risk of bodily
    injury [or] death” being assumed in paragraph Four refers to injuries “such as”
    those specifically and extensively enumerated in paragraphs One and Two—
    injuries which occur as a result of, or related to, “the use of the Club’s facilities
    and equipment.”     Indeed, this is precisely how Mr. Fresnedo understood the
    language of the waiver and release form. As he explained in his declaration filed
    in opposition to Porky’s motion for summary judgment:
    [My] understanding of these forms was that I was giving up my right
    to pursue claims against Porky’s Gym in the event that I was injured
    while performing the activity that I came to the gym to do, which was
    work out. . . . [B]ecause of the specificity of the release, it was my
    7
    understanding that I was merely giving up the right to purse any
    claims against the facility if I was injured as a result of my work out.2
    We find the instant case similar in material respects to the Second District’s
    decision in Murphy, 
    974 So. 2d at 568
    , and the Fifth District’s decision in UCF
    Athletics Ass’n Inc. v. Plancher, 
    121 So. 3d 1097
     (Fla. 5th DCA 2013) (quashed in
    part on different grounds by Plancher v. UCF Athletics Ass’n Inc., 
    175 So. 3d 724
    (Fla. 2015)). In both cases, our sister courts held that, despite an exculpatory
    clause’s waiver of liability for “any negligence” or “all claims,” other provisions in
    the clauses created an ambiguity or confusion for a reasonable reader, rendering
    the exculpatory clause unenforceable. See also Brooks v. Paul, 
    219 So. 3d 886
    (Fla. 4th DCA 2017) (holding that although two sentences in an exculpatory clause
    “are broad and arguably encompass a negligence claim,” because “there is
    additional language in the release that creates ambiguity about exactly what type of
    claims are being released,” summary judgment was not proper.)
    2 Regarding the affirmative defense of express assumption of the risk, the Fourth
    District observed in Van Tuyn v. Zurich Am. Ins. Co., 
    447 So. 2d 318
    , 320-21
    (Fla. 4th DCA 1984):
    For express assumption of risk to be valid, either by contract or by
    voluntary participation in an activity, it must be clear that the plaintiff
    understood that she was assuming the particular conduct by the
    defendants which caused her injury. Restatement of Torts, Second, §
    496B, comment d. No agreement to assume unknown risks shall be
    inferred. Therefore, unless this plaintiff subjectively understood the
    risks inherent in [the activity] and actually intended to assume those
    risks, the defense of express assumption of risk is unavailable to the
    defendants.
    8
    Reading the paragraphs of the waiver and release form together and in
    context, we hold that it remains in dispute whether the intention to be relieved
    from liability for the type of claim brought by Fresnedo is clear and unequivocal,
    and whether the wording is so clear and understandable that an ordinary and
    knowledgeable person would know that he was contracting away his right to
    pursue the instant claim brought by Fresnedo against Porky’s.
    Reversed and remanded.
    FERNANDEZ, J., concurs.
    9
    Lazaro Fresnedo v. Porky’s Gym III, Inc.
    3D17-1126
    LOGUE, J. (Dissenting)
    I respectfully dissent. When Mr. Fresnedo joined Porky’s Gym III, a fitness
    club, he signed a release waiving any claim of “bodily injury . . . due to the
    negligence of . . . the Clubs . . . while you are on the premises.” He then sued the
    Club, as he states in his complaint, for bodily injuries due to the negligent failure
    of the Club “to ensure that its premises were reasonably safe and free from
    dangers.” Does this release bar this cause of action? The language of the release is
    so simple and direct that it could have no other meaning. Therefore, the trial court
    correctly granted summary judgment because the release signed by Mr. Fresnedo
    bars his cause of action for negligence against the Club.
    This appeal arises out of a case in which Lazaro Fresnedo, Appellant, sued
    the Club for negligence. Mr. Fresnedo is a member of the Club. While working out
    at the Club, he was viciously attacked by another patron, who was present under a
    day pass. The other patron had been shadow boxing and otherwise acting
    erratically when he suddenly turned and punched Mr. Fresnedo, who was knocked
    unconscious and suffered serious personal injuries as a result. In his complaint,
    which is captioned “Negligence,” Mr. Fresnedo alleged the Club violated its “legal
    duty to ensure that its premises were reasonably safe and free from dangers.” The
    10
    Club moved for summary judgment contending that a release signed by Mr.
    Fresnedo barred his cause of action for negligence against the Club. The trial court
    granted summary judgment and Mr. Fresnedo appealed.
    The only issue before this court is whether the language of the release signed
    by Mr. Fresnedo bars his cause of action as a matter of contract law. The release
    has nine separate numbered paragraphs, which Mr. Fresnedo individually initialed,
    before signing at the bottom. The separate paragraphs release different types of
    claims that Mr. Fresnedo might bring against the Club and required Mr. Fresnedo
    to indemnify the Club for damages due to his own negligence. The entire release is
    included in this footnote.i
    The parts of the release pertinent to this appeal read as follows:
    RELEASE AND WAIVER OF LIABILITY
    PLEASE READ THE AGREEMENT CAREFULLY
    BEFORE SIGNING. BY SIGNING AND INITIALING
    BELOW YOU ARE AGREEING TO WAIVE YOUR
    LEGAL RIGHTS. ONCE YOU SIGN THIS
    DOCUMENT YOU WILL BE UNABLE TO BRING A
    LAWSUIT UNDER CERTAIN CIRCUMSTANCES.
    *     *        *    *
    4.     YOU ASSUME FULL RESPONSIBILITY
    FOR ANY RISK OF BODILY INJURY, DEATH OR
    PROPERTY      DAMAGE    DUE    TO   THE
    NEGLIGENCE OF ANY OF THE CLUBS OR
    OTHERWISE WHILE YOU ARE ON THE
    PREMISES OCCUPIED BY ANY OF THE CLUBS.
    Initials LF
    11
    Florida law disfavors this type of contract which exculpates a person from
    responsibility for his or her own negligence because it runs contrary to the policy
    behind tort law that the tortfeasors should pay for the damage they negligently
    inflict. “Nevertheless, because of a countervailing policy that favors the
    enforcement of contracts, as a general proposition, unambiguous exculpatory
    contracts are enforceable unless they contravene public policy.” Sanislo v. Give
    Kids the World, Inc., 
    157 So. 3d 256
    , 260 (Fla. 2015). Indeed, “[e]xculpatory
    clauses are unambiguous and enforceable where the intention to be relieved from
    liability was made clear and unequivocal and the wording was so clear and
    understandable that an ordinary and knowledgeable person will know what he or
    she is contracting away.” 
    Id.
     at 260–61.
    Here, Mr. Fresnedo acknowledged that he was “waiving legal rights” that
    would render him “unable to bring a lawsuit under certain circumstances.” He then
    went on to contract with the Club that he would “assume full responsibility for any
    risk of bodily injury . . . due to the negligence of . . . the Clubs or otherwise while
    you are on the premises . . . .” The simple truth is that there is no ambiguity in this
    perfectly clear language. The legislature could well decide that such releases
    signed by consumers are illegal. But a court would be hard pressed to fashion a
    rule of law requiring the release to be clearer.
    12
    Indeed, the majority opinion does not suggest the language of paragraph 4 is
    ambiguous. Instead, the majority discovers ambiguity in paragraph 4 only by
    reading it “in pari materia.” “In pari materia” simply means the intent of the parties
    to a contract must be determined by examining the entire document: separate
    sentences or paragraphs cannot be taken out of context. But a simple examination
    of the release indicates that there is no confusion when these separate provisions
    are read as components of one document.
    The paragraphs cited by the majority as creating confusion when read
    together are paragraphs 1, 2, 3, and 4. Although not a model of perfect drafting,
    and although some overlap occurs, these paragraphs essentially waive separate and
    distinct types of claims against the Club. Paragraph 1 waives bodily injuries arising
    from a claim that the Club failed to ensure Mr. Fresnedo was “sufficiently fit
    and/or healthy enough” to use the Club’s gym equipment. Paragraph 2 waives
    bodily injuries arising from the use of the Club’s gym equipment. Paragraph 3
    waives damage to Mr. Fresnedo’s property. Paragraph 4 waives bodily injury due
    to the Club’s general failure to maintain the premises.
    When read in pari materia, therefore, these four paragraphs are entirely
    consistent. Moreover, the fact that each paragraph was separately numbered and
    Mr. Fresnedo was required to separately initial each paragraph would signal to an
    13
    ordinary and knowledgeable person that the paragraphs were waiving different
    types of claims.
    In his affidavit cited by the majority, Mr. Fresnedo asserts he understood
    that the release waived only “the right to pursue any claims against the facility if I
    was injured was a result of my work out.” That is certainly a reasonable
    interpretation of paragraph 2 of the release. But if the release waived only injuries
    from working out, the release would have stopped with paragraph 2. Mr.
    Fresnedo’s interpretation is therefore is not a reasonable reading of the release. In
    fact, it is completely inconsistent with the plain language of the next paragraph,
    paragraph 3, that waives claims “for any damage to any of your property incurred
    while you are on the premises” and paragraph 4 that waives claims, as stated
    above, for bodily injury “due to the negligence of any of the clubs or otherwise
    while you are on the premises.” The broad language of these provisions are not
    limited to damages that occur during a workout.
    An ordinary and knowledgeable person agreeing to this release would
    understand that it did not stop at paragraph two and that the subsequent, separately
    numbered paragraphs dealt with matters over and above those matters in the first
    two paragraphs. Therefore, particularly when the release is read in pari materia, an
    ordinary and knowledgeable person signing this release would be on notice that the
    plain language of paragraph 4 released claims like the one Mr. Fresnedo brought
    14
    here for bodily injuries due to the negligent failure of the Club “to ensure that its
    premises were reasonably safe and free from dangers.”
    The cases cited by the majority do not support its interpretation of the
    release at issue here. For example, Diodato v. Islamorada Asset Management, Inc.,
    
    138 So. 3d 513
    , 519-20 (Fla. 3d DCA 2014) merely held that summary judgment
    was improperly granted when it was uncertain whether the releases applied to the
    activity at issue. The plaintiff was killed during a deep sea dive. The diver charter
    moved for summary judgment based on a release the plaintiff had signed months
    earlier in order to participate in “basic open water instruction,” and a second
    release the day before the tragedy to participate in a “shallow reef dive.’” 
    Id. at 519
    . Industry standards provided for a more comprehensive release which listed
    the additional hazards in the more dangerous deep sea dives and the plaintiff had
    never signed such a release. This court held it was unclear whether the prior
    releases for the basic open water instruction and the shallow reef dive were
    intended to include the later deep sea dive. 
    Id. at 519-20
    . Here there is no such
    ambiguity: the cause of action at issue is for the Club’s violation of its “legal duty
    to ensure that its premises were reasonably safe and free from dangers” and the
    contract at issue releases and waives the “negligence of . . . the Clubs . . . while
    you are on the premises.”
    15
    In Gillette v. All Pro Sports, LLC, 
    135 So. 3d 369
    , 370-71 (Fla. 5th DCA
    2014) and Tatman v. Space Coast Kennel Club, Inc., 
    27 So. 3d 108
    , 111 (Fla. 5th
    DCA 2009), the release provisions did not specifically address negligence or
    include the words “negligence” or “negligent.” Here the contract signed by Mr.
    Fresnedo expressly releases causes of action based on “negligence.”
    In Murphy v. Young Men’s Christian Association of Lake Wales, Inc., 
    974 So. 2d 565
    , 568-69 (Fla. 2d DCA 2008), the exculpatory language excluded “any
    claims based on negligence,” but the appellate court reversed because the language
    also provided that the YMCA would take “every reasonable precaution.” The court
    concluded that the provision was unclear because “a reasonable reader might be led
    to believe that the waiver of liability extends only to claims for injuries that were
    unavoidable ‘even when every reasonable precaution’ had been taken by the
    YMCA.” 
    Id. at 568
    . As discussed above, there is no such conflict in the release that
    Mr. Fresnedo signed.
    For these reasons, the trial court got it right: Mr. Fresnedo waived the very
    type of negligence claim he pursued against the Club. I would affirm the trial
    court.
    i   The release reads:
    RELEASE AND WAIVER OF LIABILITY
    16
    PLEASE READ THE AGREEMENT CAREFULLY
    BEFORE SIGNING. BY SIGNING AND INITIALING
    BELOW YOU ARE AGREEING TO WAIVE YOUR
    LEGAL RIGHTS. ONCE YOU SIGN THIS
    DOCUMENT YOU WILL BE UNABLE TO BRING A
    LAWSUIT UNDER CERTAIN CIRCUMSTANCES.
    In order to obtain access to any of the gyms operated by
    Porky’s Gym I, Inc., Porky’s Gym II, Inc., Porky’s Gym
    III, Inc., and Porky’s Gym IV, Inc. (collectively, the
    “Clubs”) and join any of the clubs as a member, you
    understand, acknowledge and agree as follows
    1.     You understand that the use of the Clubs’ facilities
    and equipment tests a person’s physical limits and carries
    with it a potential for serious injury and/or death, such as
    injuries caused by weights falling, equipment
    malfunctioning, cables snapping, defects in or improper
    maintenance of equipment or premises, inadequate
    supervision or instruction, intentional or unintentional
    misuse of the equipment (by you or others), the
    negligent acts of others with regard to the facilities
    and equipment (including the actions of any employees
    of the Club), and other dangers inherent in strenuous
    physical activity. You are aware of and accept these
    risks. You also understand and agree that it is your
    sole responsibility to determine whether you are
    sufficiently fit and/or healthy enough to safely use the
    equipment and/or facilities of any of the Clubs. You
    affirm that you will be sufficiently fit and physically
    trained to use the equipment of the Clubs you choose
    to use. Initials LF
    2.    In consideration of your membership with any
    of the Clubs, you, for yourself, and for anyone else
    who can claim through you, hereby release each of the
    17
    Clubs, and their employees, officers, directors, and
    agents, from any claim (of any nature whatsoever)
    that you may have, now or in the future, for any
    injuries you incur while you are on the premises
    occupied by any of the Clubs, such as heart attacks,
    muscle strains, pulls or tears, broken bones, shin
    splints, heat prostration, knee/lower back/foot
    injuries, and any other illness, soreness or injury
    however caused, occurring during or after your use of
    the equipment or facilities of any of the Clubs,
    whether caused by the active or passive negligence of
    any of the Clubs. Initials LF
    3.    Additionally, you, for yourself, and for anyone
    else who can claim through you, hereby release each
    of the Clubs, and their employees, Officers, directors,
    and agents, from any claims (of any nature
    whatsoever) that you may have, now or in the future,
    for any damage to any of your property incurred
    while you are on the premises occupied by any of the
    Clubs, whether caused by the active or passive
    negligence of any of the Clubs or otherwise. Initials
    LF
    4.     YOU ASSUME FULL RESPONSIBILITY
    FOR ANY RISK OF BODILY INJURY, DEATH OR
    PROPERTY      DAMAGE    DUE    TO   THE
    NEGLIGENCE OF ANY OF THE CLUBS OR
    OTHERWISE WHILE YOU ARE ON THE
    PREMISES OCCUPIED BY ANY OF THE CLUBS.
    Initials LF
    5.  YOU ARE ACKNOWLEDGE AND AGREE
    THAT THE CLUBS MAKE NO EXPRESS OR
    IMPLIED WARRANTIES OF ANY KIND
    18
    REGARDING MEMBERSHIP WITH ANY OF THE
    CLUBS OR THE USE OF THE FACILITIESS AND
    EQUIPMENT OF ANY OF THE CLUBS. Initials LF
    6.     You agree that this Release shall be interpreted as
    broad and inclusive as in Permitted by law of the State of
    Florida and that if any portion thereof is held invalid, it is
    agreed that the balance shall, notwithstanding, continue
    in full force and effect. You have read this Release and
    agree that no oral representations, statements, warranties
    or inducements have been made to you. Initials LF
    7.     You agree to indemnify and save and hold
    harmless each of the Clubs from any loss, liability,
    damage or cost any of them may incur as a result of your
    acts or omissions on the premises of any of the Clubs.
    Initials LF
    8.      Any person signing below on behalf of a minor
    under the age of 18 hereby acknowledges that he or she
    has the legal capacity and authority to act on behalf of the
    minor and to legally bind the minor to this Release, and
    they agree to indemnify and hold harmless each of the
    Clubs for any expenses incurred, claims made, or
    liabilities assessed against any of them as a result of any
    insufficiency of legal capacity or authority to act on
    behalf of the minor in the execution of this Release.
    Initials LF
    9.    I have read and voluntarily sign this Agreement
    and I agree that no oral representations, statements apart
    from what is contained in this Agreement have been
    made to me. Initials LF
    19