Hinkal, M. v. Pardoe, G. ( 2015 )

J-S54042-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MELINDA HINKAL IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
GAVIN PARDOE & GOLD’S GYM, INC.,
AND GOLD’S GYM INTERNATIONAL, INC.
AND TRT HOLDINGS, INC.
Appellee No. 165 MDA 2014
Appeal from the Order Entered January 7, 2014
In the Court of Common Pleas of Union County
Civil Division at No(s): 12-0375
BEFORE: LAZARUS, J., MUNDY, J., and STABILE, J.
MEMORANDUM BY MUNDY, J.: FILED APRIL 24, 2015
Appellant, Melinda Hinkal, appeals from the January 7, 2014 order
granting the motion for summary judgment filed by Gavin Pardoe, Gold’s
Gym, Inc. (Gold’s Gym), Gold’s Gym International, and TRT Holdings, Inc.
(collectively, Appellees). After careful review, we reverse and remand.
In her second amended complaint, Appellant asserted claims of
negligence against Pardoe, a personal trainer employed by Gold’s Gym, and
respondeat superior against each of the other Appellees. The trial court set
forth the facts and procedural history as follows.
[Appellant] alleges she sustained a serious
neck injury while using a piece of exercise equipment
under Pardoe’s direction. [Appellant] alleges that
she suffered a rupture of the C5 disc in her neck
requiring two separate surgeries. [Appellant] alleges
that Pardoe’s negligence included, inter alia, putting
J-S54042-14
too much weight on the piece of equipment that
injured [Appellant] and by instructing [Appellant] to
continue the workout without recognizing that
[Appellant] had sustained a serious injury.
[Appellant’s] allegations of negligence against the
remaining [Appellees] are based upon vicarious
liability for Pardoe’s negligence as well as the
negligence of unidentified employees, agents and
servants.
[Appellees] have filed a [m]otion for
[s]ummary [j]udgment requesting that we dismiss
all [of] [Appellant’s] claims against all [Appellees]
with prejudice. In support of their motion,
[Appellees] aver that as a member of [Gold’s Gym],
[Appellant] signed a Guest Courtesy Card, a
Membership Agreement and a Personal Training
Agreement with Pardoe. [Appellees] assert that
these documents contain legally valid “waiver of
liability” provisions, which in turn, bar [Appellant’s]
claims against all [Appellees].
Trial Court Opinion, 1/7/14, at 1-2 (footnote omitted). On January 7, 2014,
the trial court issued an order granting Appellees’ motion for summary
judgment and an accompanying opinion explaining its decision. On January
23, 2014, Appellant filed a timely notice of appeal.1
Appellant raises the following issues on appeal.
1. Whether the [g]uest [c]ard signed by the
Appellant covering the six[-]day trial period
had expired before the Appellant’s injury
occurred[?]
____________________________________________
1
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925. In response to Appellant’s Rule 1925(b)
statement, the trial court refers this Court to its January 7, 2014 opinion.
-2-
J-S54042-14
2. Whether the [w]aiver on the back page of the
[m]embership [a]greement signed by the
Appellant is valid and enforceable[?]
3. Whether the [w]aiver encompasses [r]eckless
[c]onduct?
Appellant’s Brief at 4.2
Our standard of review of a grant of summary judgment is as follows.
As has been oft declared by [our Supreme]
Court, “summary judgment is appropriate only in
those cases where the record clearly demonstrates
that there is no genuine issue of material fact and
that the moving party is entitled to judgment as a
matter of law.” Atcovitz v. Gulph Mills Tennis
Club, Inc., 812 A.2d 1218, 1221 ([Pa.] 2002); Pa.
R.C.P. No. 1035.2(1). When considering a motion
for summary judgment, the trial court must take all
facts of record and reasonable inferences therefrom
in a light most favorable to the non-moving party.
Toy v. Metropolitan Life Ins. Co., 928 A.2d 186,
195 ([Pa.] 2007). In so doing, the trial court must
resolve all doubts as to the existence of a genuine
issue of material fact against the moving party, and,
thus, may only grant summary judgment “where the
right to such judgment is clear and free from all
doubt.” Id. On appellate review, then,
an appellate court may reverse a grant of
summary judgment if there has been an error
of law or an abuse of discretion. But the issue
as to whether there are no genuine issues as
to any material fact presents a question of law,
and therefore, on that question our standard of
review is de novo. This means we need not
____________________________________________
2
We note that Appellant’s application to file an amended brief was granted,
and Appellant filed an amended brief on August 1, 2014. For ease of
discussion, we refer to this as “Appellant’s Brief” throughout. Appellees did
not seek leave to supplement their first brief.
-3-
J-S54042-14
defer to the determinations made by the lower
tribunals.
Weaver v. Lancaster Newspapers, Inc., 926 A.2d
899, 902-03 ([Pa.] 2007) (internal citations
omitted). To the extent that this Court must resolve
a question of law, we shall review the grant of
summary judgment in the context of the entire
record. Id. at 903.
Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010) (parallel
citations omitted).
In the statement of questions involved section of her amended brief,
Appellant first argues the guest card covering the six-day trial period had
expired before Appellant’s injury occurred. Appellant’s Brief at 4. Initially,
we note Appellant has waived this issue because she did not present
argument in support of this issue in her brief.3 See id. at 15-22; Harvilla
v. Delcamp, 555 A.2d 763, 765 n.1 (Pa. 1989); Harkins v. Calumet
Realty Co., 614 A.2d 699, 703 (Pa. Super. 1992).
In her second issue, Appellant contends that the waiver provision on
the reverse side of the membership agreement is not valid and enforceable.
Appellant’s Brief at 19-20. Specifically, Appellant argues that the waiver is
____________________________________________
3
If this issue was not waived, we would agree with Appellant that the guest
card is not material to this dispute. Appellant received the guest card on
June 20, 2010, and it expired at the end of the six-day trial period.
Thereafter, Appellant signed the membership agreement on July 5, 2010.
The provisions of the membership agreement were in effect on August 24,
2010, the date Appellant alleges she was injured due to Appellees’
negligence. The trial court based its ruling on those provisions. Therefore,
the membership agreement is the contract governing this dispute.
-4-
J-S54042-14
unenforceable because it is inconspicuous and is insufficient to provide
notice of its contents and legal significance. Id. For the following reasons,
we agree.
The Gold’s Gym membership agreement is printed on a single, two-
sided page in a carbon copy packet. Appellees’ Motion for Summary
Judgment, 8/19/13, at Exhibit C. The only signature line is located at the
bottom of the front side. Id. at 1.4 The first line in the paragraph above the
signature line provides, “[d]o not sign this [a]greement until you have read
both sides. The terms on each side of this form are a part of this
[a]greement.” Id. This instruction is not set off from the rest of the
paragraph and is not in bold typeface, capital letters, or larger font, even
though other terms, such as the “buyer’s right to cancel,” appear in bold and
capital letters. Id.
On the reverse side of the agreement are 13 additional terms printed
in light gray ink on pink carbon paper. Id. at 2. All of these terms are
single-spaced and printed in the same font size. Id. The “Waiver of
Liability; Assumption of Risk” clause at issue in this case is the 12 th term,
located approximately three-quarters of the way down the page, and is not
____________________________________________
4
The membership agreement is not paginated. For ease of reference, we
have numbered the front as page 1 and the reverse as page 2.
-5-
J-S54042-14
differentiated in any manner from the surrounding paragraphs. Id. It reads
as follows.
WAIVER OF LIABILITY; ASSUMPTION OF
RISK: Member acknowledges that the use of Gold’s
Gym’s facilities, equipment, services and programs
involves an inherent risk of personal injury to
Member and Member’s guests and invitees. Member
voluntarily agrees to assume all risks of personal
injury to Member, Member’s spouse, children,
unborn children, other family members, guests of
invitees and waives any and all claims or actions that
Member may have against Gold’s Gym, any of its
subsidiaries or other affiliates and any of their
respective officers, directors, employees, agents,
successors and assigns for any such personal injury
(and no such person shall be liable for to [sic]
Member, Member’s spouse, children, unborn
children, other family members, guests or invitees
for any such personal injury), including, without
limitation (i) injuries arising from use of any exercise
equipment, machines and tanning booths, (ii)
injuries arising from participation in supervised or
unsupervised activities and programs in exercise
rooms, running tracts, swimming pools, hot tubs,
courts or other areas of any Gold’s Gym, (iii) injuries
or medical disorders resulting from exercising at any
Gold’s Gym, including heart attacks, strokes, heat
stress, sprains, broken bones and torn or damaged
muscles, ligaments or tendons and (iv) accidental
injuries within any Gold’s Gym facilities, including
locker rooms, steam room, whirlpools, hot tubs,
spas, saunas[,] showers and dressing rooms.
Member acknowledges that (x) Gold’s Gym does not
manufacture any of the fitness or other equipment at
its facilities and (y) Gold’s Gym does not
manufacture any vitamins, food products, sports
drinks, nutritional supplements or other products
sold at its facilities; accordingly, neither Gold’s Gym,
any of its subsidiaries or other affiliates nor any of
their respective officers, directors, employees,
agents, successors or assigns shall be held liable for
any such defective equipment or products. Member
shall indemnify each of Gold’s Gym, its subsidiaries
-6-
J-S54042-14
and other affiliates and each of their respective
officers, directors, employees, agents, successors
and assigns (and “Indemnified Party”) and save and
hold each of them harmless against and pay on
behalf of or reimburse any such Indemnified Party as
and when incurred for any Losses which such
Indemnified Party may suffer, sustain or become
subject to, as a result of, in connection with, relating
or incidental to or by virtue of any claim that is the
subject of the waiver set forth above. The provisions
of this paragraph shall survive the termination of this
Agreement and Member’s membership.
Id. The reverse side of the agreement does not have any space for a
signature or for initials where a signatory may acknowledge the additional
terms. Id. Neither does the front side of the agreement require separate
confirmation that the signatory has read and accepted the additional terms
on the reverse side. Id. at 1. Furthermore, it is undisputed that Appellant
did not read the waiver of liability language on the reverse side of the
agreement, and that no employee of Gold’s Gym verbally informed her that
the terms of the agreement included an exculpatory clause. Appellant’s
Brief at 19; Appellees’ Brief at 20.
In Beck-Hummel v. Ski Shawnee, Inc., 902 A.2d 1266 (Pa. Super.
2006), this Court recognized that an unsigned, unread exculpatory clause
may be enforceable as a matter of law if the clause is sufficiently
conspicuous such that a reasonable person would have been put on notice of
its contents. Beck-Hummel, supra at 1274-1275. In Beck-Hummel,
Suzanne Beck-Hummel was injured while snow tubing. Id. at 1267. Her
snow tubing ticket contained an exculpatory clause. Id. Beck-Hummel and
-7-
J-S54042-14
her husband filed an action for negligence and loss of consortium. Id. at
1268. The parties stipulated that Beck-Hummel and her husband neither
signed an agreement nor read the exculpatory language on the snow-tubing
ticket. Id. at 1274. They further stipulated that no employee of the snow-
tubing facility verbally informed either of them “that they were entering into
a contractual agreement, the terms of which included the exculpatory
language on the ticket, by paying for and accepting the ticket.” Id.
This Court in Beck-Hummel concluded that the unsigned, unread
exculpatory clause would nevertheless be enforceable if the exculpatory
language was sufficiently conspicuous. Id. In other words, the exculpatory
clause would be enforceable if a reasonable person should have noticed it.
Id. In determining whether a reasonable person should have noticed an
exculpatory clause, a court should analyze the following factors.
1) The [exculpatory clause’s] placement in the
document, 2) the size of the [clause’s] print, and 3)
whether the [clause] was highlighted by being
printed in all capital letters or in a type style or color
different from the remainder of the document.
Id. The Beck-Hummel Court applied this test and ultimately determined
that the language printed on the tubing ticket was not sufficiently
conspicuous and was therefore unenforceable. In reaching this conclusion,
the Beck-Hummel Court stated the following.
The disclaimer language on the ticket was in a font
size such that [it] was barely readable. The several
references to [the snow tubing company] and its
logo were set forth in the largest text on the ticket.
Although the ticket stated “• PLEASE READ •” in
-8-
J-S54042-14
bold, above the disclaimer, the font size of this
language was similar to the phrases on the bottom of
the ticket, “NON-TRANSFERABLE” and “NON-
REFUNDABLE”.
Id. at 1274-1275.
Applying the foregoing principles from Beck-Hummel to this case, we
conclude as a matter of law that the exculpatory clause in the Gold’s Gym
membership agreement is unenforceable because it is not sufficiently
conspicuous. See Appellees’ Motion for Summary Judgment, 8/19/13, at
Exhibit C. As noted above, the exculpatory clause is printed on the reverse
side of the one-page document. The exculpatory clause is not in immediate
proximity to the signature line, as the signature line is on the front side of
the document. Additionally, the font size of the exculpatory clause is not
distinct from the other 12 terms on the reverse side, nor is the font size of
the sentence advising Appellant to read both sides of the agreement distinct
from the surrounding text. This is in contrast, for example, to the font in the
paragraph explaining the “Buyers Right to Cancel” on the front side.5
Rather, the exculpatory clause is printed in light gray ink on pink carbon
paper and is difficult to read. Further, it is undisputed that Appellant did not
____________________________________________
5
We note the conspicuous nature of the Buyer’s Right to Cancel clause
pursuant to 73 P.S. § 201-7, which requires, in pertinent part, the clause to
appear “in immediate proximity to the space reserved in the contract for the
signature of the buyer or on the front page of the receipt if a contract is not
used and in bold face type of a minimum size of ten points[.]”
-9-
J-S54042-14
read the language of the membership agreement, and the language of the
agreement itself is not so conspicuous as to, without more, put the user on
notice of the exculpatory clause. Notably, the sentence advising Appellant to
read both sides of the agreement does not contain a description of the
additional terms or an indication of their potential significance. Therefore,
we conclude the exculpatory clause in this case is unenforceable as a matter
of law. Beck-Hummel, supra at 1274-1275.
The trial court found that the Gold’s Gym membership agreement is
valid and enforceable as a written, signed contract, relying on Chepkevich
v. Hidden Valley Resort, L.P., 2 A.3d 1174 (Pa. 2010). Trial Court
Opinion, 1/7/14, at 4-10. However, the agreement in this case is
distinguishable from the contract at issue in Chepkevich. In Chepkevich,
the appellee claimed she was injured on the ski lift at Hidden Valley Resort
as a result of the negligence of the ski lift operator. Chepkevich, supra at
1175-1176. Our Supreme Court concluded that the ski resort was entitled
to summary judgment based on the terms of the release from liability
included in the parties’ written and signed contract.6 Id. at 1188. After
determining that this exculpatory clause was facially valid, the Court
____________________________________________
6
The Court first held that the defendants were entitled to summary
judgment under the Skiers Responsibility Act, which preserved the doctrine
of assumption of the risk as it applies to downhill skiing injuries and
damages. Id. at 1188; 42 Pa.C.S.A. § 7102(c).
- 10 -
J-S54042-14
distinguished the release involved in Chepkevich from Beck-Hummel as
follows.
[T]he [r]elease in this case was a full page titled
“RELEASE FROM LIABILITY” in capital letters in large
font at the top. The actual language releasing [the
ski resort] from liability regardless of its own
negligence was written in the same font as the rest
of the [r]elease, and [the appellee] signed that
[r]elease. … Whether or not [the appellee] availed
herself of the opportunity to read the [r]elease she
signed, we cannot agree that a full-page, detailed
agreement, written in normal font and titled
“RELEASE FROM LIABILITY” constitutes an
insufficient effort on the part of [the ski resort] to
inform [the appellee] of the fact that, by signing and
purchasing a lift ticket, she was giving up any right
she might have to sue for damages arising from
injuries caused even by negligence.
Id. at 1192.
The instant case is not analogous to Chepkevich because, unlike the
release in Chepkevich, the exculpatory clause in this case was not on a
separate page, was not clearly titled, and was not signed separately.7
Instead, it was one of 13 terms on the reverse side of the membership
agreement and did not require a separate acknowledgment. Given that
Appellees in this case took no other steps to alert Appellant that she was
____________________________________________
7
Similarly, the waiver in the agreement in the case relied on by Appellees is
conspicuous and, therefore, not analogous to the present matter. See
Seaton v. East Windsor Speedway, Inc., 582 A.2d 1380, 1383 (Pa.
Super. 1990) (stating “the bold-typed letters ‘Release and Waiver of Liability
and Indemnity Agreement’ at the top of the sheet quickly notify the signer
that the paper is, in fact, a release[]”).
- 11 -
J-S54042-14
waiving her right to initiate personal injury actions against Gold’s Gym by
signing the membership agreement, we cannot conclude as a matter of law
that the exculpatory clause represents the intent of Appellant to waive said
right. Therefore, the exculpatory clause is unenforceable because it was not
read and was not sufficiently conspicuous. Beck-Hummel, supra at 1274-
1275.
Accordingly, we conclude that the trial court erred in granting
summary judgment. Therefore, we reverse the January 7, 2014 order
granting summary judgment and remand for further proceedings consistent
with this memorandum.8
Order reversed. Case remanded. Jurisdiction relinquished.
Judge Lazarus joins the memorandum.
Judge Stabile files a concurring and dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/24/2015
____________________________________________
8
Given our disposition, we do not reach Appellant’s third issue of whether
the waiver in the membership agreement encompasses reckless conduct.
- 12 -