Cornelius Lister was a member of the LA Fitness facility in Andorra, Pa., when a physical altercation broke out during a basketball game in September 2012. Lister sustained a variety of injuries when four men attacked him during the game. One of the assailants was a member of the club, but the second identified by police was not a member. Police did not identify the other two assailants. The LA Fitness employee working at the front desk allowed non-members to enter the club and play despite access to the basketball court being limited to club members only.
Lister filed a lawsuit in federal court in the Eastern District of Pennsylvania alleging that LA Fitness was negligent for his injuries. The fitness chain countered that the exculpatory clause in the membership agreement absolved it from liability in the case of Lister v. Fitness International, LLC, d/b/a LA Fitness, No. 13-3013.
CLAUSE AND EFFECT
In 2008, Lister signed a membership agreement that contained an exculpatory clause that, in part, stated the following:
"IMPORTANT: RELEASE AND WAIVER OF LIABILITY AND INDEMNITY: You hereby acknowledge and agree that Member's use of L.A. Fitness' facilities, services, equipment or premises, involves risks of injury to persons or property, including those described below, and Member assumes full responsibility for such risks. In consideration of being permitted to enter any facility or 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 and Member's personal representatives, assigns, heirs, and next of kin for any loss or damage, 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 the active or passive negligence of L.A. Fitness or otherwise, to the fullest extent permitted by law, while Member is in, upon, or about L.A. Fitness premises or using any L.A. Fitness facilities, services or equipment.
"Member also hereby agrees to indemnify L.A. Fitness from any loss, liability, damage or cost L.A. Fitness may incur due to the presence of Member in, upon or about the L.A. Fitness premises or in any way observing or using any facilities or equipment of L.A. Fitness whether caused by the negligence of Member or otherwise... Such risk of injury includes injuries arising from participation by a Member or others in supervised or unsupervised activities or programs at a Club."
Lister asserted that the exculpatory clause quoted above was unenforceable due to ambiguity and recklessness. Specifically, he argued that "release is ambiguous because it does not specifically apply to intentional acts by guests, or to the (facility's) negligence in failing to prevent those intentional acts." Further, Lister stated that nothing in the release waives claims resulting from intentional assaults by other users, or the club's failure to protect against those assaults. He also argued that the defendant recklessly disregarded its own policies and did not properly require photo identification from all persons entering the facility, rendering the exculpatory clause invalid.
Upon review of Lister's claims and Pennsylvania law, the court granted the motion for summary judgment to LA Fitness, finding that neither of Lister's arguments sufficiently established the invalidity of the exculpatory clause in the LA Fitness Membership Agreement. Citing established precedent in Pennsylvania, the court first stated the standard by which the enforceability and validity of exculpatory clauses should be analyzed. Specifically, exculpatory clauses are valid when they do not contravene public policy, the contract relates entirely to private affairs, and each person is a free bargaining agent to the agreement. According to the court, Lister did not attempt to measure the validity of the exculpatory clause using any of these measures.
However, in addressing Lister's ambiguity claim, the court relied heavily on two phrases within the exculpatory clause: "whether caused by the active or passive negligence of L.A. Fitness or otherwise" and "such risk of injury includes ... injuries arising from participation by Member or others in supervised or unsupervised activities or programs at a Club." The court held that these two phrases, when taken together, define the set of circumstances that resulted in the plaintiff's injury.
As far as the recklessness claim, the court defined recklessness as conduct that is "not only unreasonable but involves a risk of harm to others substantially in excess of that necessary to make the conduct negligent." Further, the court noted that recklessness "requires conscious action, rather than mere inadvertence." While Lister argued that the club employee's intentional act of allowing non-members into the club rises to the level of reckless, the court found there to be insufficient evidence. Specifically, the court held that Lister's conclusory statement defining the conduct as reckless was insufficient evidence of such.
It's important to remember that the validity of a waiver is determined by the law in each state. In this case, the court applied Pennsylvania law regarding the impact of ambiguous language on the validity of the waiver. In other states, however, this same waiver language could be deemed ambiguous, rendering the exculpatory language invalid. Further, the court makes clear that Lister did not present sufficient evidence of recklessness. This is different than concluding that LA Fitness did not act recklessly. And in the majority of states, exculpatory language will only protect service providers from liability resulting from ordinary negligence.
Although LA Fitness was victorious in this claim and effectively used an exculpatory clause to protect itself against liability for patron harm, owners/operators of fitness facilities should be reminded of the potential for ambiguous language or recklessness to invalidate an exculpatory clause.
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Kristi Schoepfer-Bochicchio is an associate professor of Sport Management and Sport Law at Winthrop University in Rock Hill, S.C.