Hinkal, M. v. Pardoe, G.

J-E03010-15
2016 Pa. Super. 11
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.
Appellees 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: GANTMAN, P.J., BENDER, P.J.E., BOWES, J., PANELLA, J.,
SHOGAN, J., LAZARUS, J., OTT, J., STABILE, J., and JENKINS, J.
DISSENTING OPINION BY LAZARUS, J.: FILED JANUARY 22, 2016
As I disagree with the learned majority’s analysis regarding the
enforceability of the exculpatory clause at issue, I respectfully dissent. The
majority concludes that the clause was both valid and enforceable under the
standard set forth in Topp Copy Products, Inc. v. Singletary, 626 A.2d
98 (Pa. 1993) and Employers Liability Assurance Corp. v. Greenville
Business Men’s Association, 224 A.2d 620 (Pa. 1966) (the “Topp
Copy/Employers Liability” standard). While I agree with the structure of
this analysis, I depart from the majority’s conclusion because I believe: 1)
an exculpatory clause in the context of a health club membership
contravenes public policy; and 2) the contract language, construed strictly,
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is ambiguous with regard to whether personal training sessions are included
within the standard health club membership.
Under the Topp Copy/Employers Liability standard, an exculpatory
clause will not be given force unless it meets conditions for validity and
enforceability. As a threshold matter, an exculpatory clause will be found
valid where the following 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.
Topp Copy Prods. v. Singletary, 626 A.2d 98, 99 (Pa. 1993).
As stated in the Restatement (Second) of Torts, “[t]here is no general
policy of the law which prevents the parties from agreeing that the
defendant shall be under no such general or specific duty to the plaintiff.”
Restat. 2d of Torts, § 496B (2nd ed. 1979). Furthermore, “[w]here such an
agreement is freely and fairly made, between parties who are in an equal
bargaining position, and there is no social interest with which they interfere,
it will generally be upheld. Id. (emphasis added).
Though exculpatory clauses are generally upheld, this Court has
recognized that “lying behind these contracts is a residuum of public policy
which is antagonistic to carte blanche exculpation from liability.” Phillips
Home Furnishings, Inc. v. Continental Bank, 331 A.2d 840, 843 (Pa.
Super. 1974) (rev’d on other grounds, 354 A.2d 542, (Pa. 1976)). Thus,
our case law has “developed the rule that these provisions would be strictly
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construed with every intendment against the party seeking their protection.”
Id. Furthermore, the evolution of “economic and social necessities” have led
courts to find that “in certain situations and relations express agreements by
which one party assumes the risk of another's conduct could not, in good
conscience, be accepted.” Id.
In Phillips, we identified several categories of situations and relations
where contracts against liability have been found inimical to public policy,
including: 1) employer-employee relationships; 2) where one party is
charged with a duty of public service; 3) public utilities; 4) common carriers;
5) carriers; 6) hospitals; and 7) airports. Id. Additionally, “[c]ourts have
been particularly sensitive to the public interest in considering contracts that
involve health and safety.” Leidy v. Deseret Enterprises, Inc., 381 A.2d
164, 168 (Pa. Super. 1977).
In Leidy, this Court reversed the trial court’s entry of judgment on the
pleadings in an action filed against a spa for injuries alleged by one of its
members. The plaintiff alleged that she had been referred to the spa for
post-operative treatment and that injury resulted when the spa’s therapist
administered treatment contrary to her doctor’s instructions. Id. at 166.
The defendant spa sought dismissal of the case based on release language in
the membership agreement signed by the plaintiff. Id. In remanding the
case, this Court reasoned that the contract at issue “clearly concerned health
and safety” and identified a public interest in “assuring that those claiming
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to be qualified to follow a doctor’s orders are in fact so qualified, and accept
responsibility for their actions.” Id. at 168.
Like the spa membership in Leidy, the contract at issue in this case
implicates health and safety concerns. By marketing and providing personal
training services, the Appellees purport to provide for the physical health of
Gold’s Gym members. The public has an interest in assuring that those who
hold themselves out to be qualified1 to provide these services, and profit
therefrom, do not disregard their duty of care and cause harm to the people
who rely on their professional services. An exculpatory clause in the context
of a personal training agreement interferes with this public interest.
Therefore, I would find this clause invalid as it contravenes public policy.
Topp Copy, 626 A.2d at 99.
____________________________________________
1
On its website, Gold’s Gym advertises the following:
We demand the best from our personal trainers, so they can
demand the best from you. Our personal trainers have to meet
high standards of excellence in exercise physiology, nutrition,
anatomy, training program development, exercise application,
health screening, and fitness assessments. Every personal
trainer has to pass the Gold’s Fitness Personal Trainer
Certification course and exam, in addition to their national
accreditation. But most importantly, our personal trainers excel
at applying their knowledge to all walks of life, from athletes to
seniors.
Our Trainers, GOLD’S GYM, http://www.goldsgym.com/our-trainers/ (last
visited Dec. 14, 2015).
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To support this public policy argument, we recognize the public
interest manifested in Pennsylvania’s Health Club Act (the “Act”), 73 P.S.
§§2161-2177. Although the statute provides primarily economic protections
to consumers, it also reflects a broader interest in providing access to health
club facilities free from oppressive contract terms. The preamble to the Act
states:
The purpose of this act is to safeguard the public interest against
fraud, deceit and financial hardship and to foster and encourage
competition, fair dealing and prosperity in the field of health club
services by prohibiting false and misleading advertising and
dishonest, deceptive and unscrupulous practices by which the
public has been injured in connection with contracts for health
club services.
Act 1989, Dec. 21, P.L. 672, No. 87. The balance of the Act provides, inter
alia, requisite contract provisions, limitations on contract duration and
initiation fees, and various grounds for rendering membership contracts
voidable. See 73 P.S. §§ 2163-2167.
While the Act aims to protect consumers from “deceptive and
unscrupulous practices,” at least one other state legislature has taken the
extra step to specifically void exculpation clauses in the context of certain
recreational establishments, including gyms and fitness centers. In New
York, for example, membership and admission agreements for recreational
activities are governed by the following:
Every covenant, agreement or understanding in or in connection
with, or collateral to, any contract, membership application,
ticket of admission or similar writing, entered into between the
owner or operator of any pool, gymnasium, place of amusement
or recreation, or similar establishment and the user of such
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facilities, pursuant to which such owner or operator receives a
fee or other compensation for the use of such facilities, which
exempts the said owner or operator from liability for damages
caused by or resulting from the negligence of the owner,
operator or person in charge of such establishment, or their
agents, servants or employees, shall be deemed to be void as
against public policy and wholly unenforceable.
N.Y. Gen. Oblig. § 5-326 (emphasis added). The language above reflects a
public policy interest in protecting consumers of recreational activities from
waiving the right to seek compensation for the negligence of the purveyors
of such activities.
Although Pennsylvania’s Act does not go so far as to automatically void
liability waivers, the Act’s purpose of protecting health club patrons from
“deceptive and unscrupulous practices” could be read to encompass such a
preclusion. In the absence of a clearer statement from our legislature,
Pennsylvania courts are left to analyze exculpation clauses on a case-by-
case basis under the framework of
Topp Copy/Employers Liability. As stated previously, I would find the
exculpatory clause at issue in this case invalid as it contravenes public policy
to enforce such provisions in the context of a contract for personal training
services at a gym. Assuming, arguendo, that the clause is valid, I would
remand the case, nonetheless, because the terms of the waiver itself do not
specifically apply to personal training services.
Under the Topp Copy/Employers Liability standard, a facially valid
exculpatory clause will not be given effect unless it is found enforceable.
[O]nce an exculpatory clause is determined to be valid, it will,
nevertheless, still be unenforceable unless the language of the
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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.
Topp Copy, 626 A.2d at 99. With these rules of interpretation in mind, I
now turn to the exculpatory language at issue in the immediate matter.
The membership agreement signed by Appellant contained the
following provision:
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 [sic], 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,
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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 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.
Plaintiff’s Exhibit 2A, Membership Agreement dated 7/5/10 (emphasis
added). The trial court analyzed this provision and found
an express statement of intention “to bar all lawsuits arising out of the
inherent risk of personal injury in using exercise equipment and machines
and participating in an exercise program.” Trial Court Opinion, 1/7/2014, at
9. I would be inclined to agree with this conclusion had the Appellant
injured herself while working out alone, or even in the context of a group
fitness program. However, I cannot agree that this waiver language, which
we must construe strictly, clearly encompasses personal training services.
To participate in a personal training regimen, Appellant engaged a
personal trainer and paid a significant amount of money for her training
sessions, over and above what she paid for her membership. In fact, the
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personal training engagement required a distinct “Personal Training
Agreement” including the following pertinent language:
I agree to the following terms and conditions of this Personal
Training Agreement (“Agreement”): 1. I understand that any/all
recommended exercises are voluntary and I can refuse to
participate in any/all of the recommended exercises. . . . 5. All
standard terms and conditions of my membership agreement are
incorporated in and made a part of this Agreement.”
Plaintiff’s Exhibit 3, Personal Training Agreement dated 7/5/10, at 2. In
choosing to work with a personal trainer, a client presumably relies on the
health and safety training of the trainer who holds him or herself out as an
expert in the field. Indeed, a novice trainee would understandably rely on
the expertise of a trainer to avoid the “inherent risk of personal injury in
using exercise equipment and machines.”
From this perspective, I believe that a broad waiver of liability found
on the reverse side of a general membership contract, with no specific
reference to personal trainers or personal training, does not clearly
encompass personal training services. At best, the exculpatory provision is
ambiguous as it pertains to personal training and the provision must be
construed against the party seeking immunity from liability. Topp Copy,
626 A.2d at 99.
Finding that the waiver of liability is against public policy and does not
clearly encompass claims related to personal training services, I would
reverse the grant of summary judgment and remand for further
proceedings.
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Judge Panella joins this Dissenting Opinion.
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