Court Determines that Waiver Violated Public Policy

Apr 24, 2009

A Connecticut state court judge has sided with a plaintiff, who sued a health club after she was injured in an exercise class, finding that the particular waiver that the plaintiff signed runs contrary to public policy.
Specifically, the court held that “any exculpatory agreement, which would excuse the potential negligence of the health club, would seem to be in conflict with the public policy of encouraging participation in athletics and other recreational activities.”
The plaintiff alleged that she was injured in the course of an exercise class, specifically a bosu cardio class, conducted at the defendant health club’s premises. The plaintiff further alleged that she was under the instruction of an employee, agent, servant or representative of the defendants, who was conducting the class. The plaintiff’s claims involved negligence, misrepresentation, breach of contract and breach of implied covenant of good faith and fair dealing, and breach of implied contract of good faith and fair dealing.
The defendants countered that the plaintiff’s claims are barred by the doctrine of release and/or waiver, and sought summary judgment.
The waiver in question was contained in the membership agreement, and included following:
“Release and Waiver of Liability. I, for myself, my heirs, executors and assigns, have read and understand this waiver and have been fully informed of and acknowledge, assume, and accept the risks inherent in the use of the Center services and facilities. I voluntarily assume the risk of injury, accident, death, loss, cost or damage to my person or property which might arise from my use of the Center and I release the Center from any and all claims and liabilities resulting from the ordinary negligence of the Center and its owners, officers, employees or agents. I certify that I am in good physical health and am able to undertake and engage in the range of physical activities to which I choose to participate. I assume all responsibility for updating the Center of changes in physical and mental condition and for reporting all injuries sustained at the Center to the manager on duty at the time. I (we) certify that I (we) have read and understand the terms on the front and back of this Agreement and agree to abide by them. I (we) also certify that I (we) have received a copy of this Agreement.”
The court began its analysis by quoting from Reardon v. Windswept Farm, LLC, 280 Conn. 153, 159, 905 A.2d 1156 (2006) that “the law does not favor contract provisions, which relieve a person from his own negligence . . . .”
Rather, the law emphasizes that the language be “expressed in unmistakable language, an exculpatory clause will not be deemed to insulate a party from liability for his own negligent acts . . . Put another way, it must appear plainly and precisely that the limitation of liability extends to negligence or other fault of the party attempting to shed his ordinary responsibility . . . .” Roman v. Bristol, 101 Conn.App. 491, 498, 922 A.2d 310 (2007).
“Applying this stringent standard to the release provision at hand, the court cannot find that it is clear and unambiguous,” wrote the judge. “The subject document is titled ‘membership agreement’ and it consists of two pages. The beginning word in each paragraph is in bold. Almost all of the agreement is printed in very small type. A portion of the agreement is titled ‘BUYER’S RIGHT TO CANCEL.’ The court has taken judicial notice of the fact that Conn. Gen. Stat. §21a-218 requires that a health club contract must contain a statement giving a buyer a right to cancel and the statement must be in ten-point bold type. The court assumes that the statutory statement contained in the subject agreement is in ten-point bold type. The balance of the agreement, including the release and waiver of liability paragraph, is not in bold type and is approximately one-half the size of the statutory statement. A magnifying glass, proscribed by Hanks, would certainly be helpful in reading the release language.”
Turning back to the Reardon case, the Connecticut judge wrote that the same factors that influenced the Reardon Court “to invalidate the release in that case are present here. First, in both instances the defendants provided the facilities and instruction involved in the plaintiff’s claims of negligence. Here, the plaintiff ‘was under the instruction of [the defendant’s] employee.’ Second, the facilities and the activities were open to the general public. In this case, there appears to be no limitation in the membership agreement as to the qualifications of a potential member. Therefore, it is reasonable to assume that the defendant would make a membership available to any member of the public who seeks it. Third, the court recognizes that in Hanks, the court sought to determine which party had the greater expertise and information concerning the dangers associated with the subject activity. In using that inquiry as a part of the court’s analysis here, the court notes that the plaintiff alleges she was receiving instruction from an agent of the defendant in the course of a bosu cardio class. As the party giving the instruction, it is reasonable to assume that the defendant’s employee had greater expertise and information concerning the dangers, if any, associated with the activity. Therefore, it was the defendant, not the plaintiff or other members, who had the opportunity to foresee and control hazards, and to guard against the negligence of their agents and employees.
“Furthermore, like the agreement in Reardon, which was found to violate public policy under Hanks, the court finds that the subject agreement is a classic contract of adhesion. This determination is evidenced through clauses like the first paragraph of the agreement, which states: ‘General: The front and back pages of this Agreement represent the complete understanding between the Member and Healthtrax, Inc. No representations, written or oral, other than those contained in this Agreement are authorized or binding upon the Center.’
“In reading this clause, as well as the whole contract, it is apparent that the subject agreement is merely a preprinted form which each customer is required to sign before being admitted as a member. Clearly, this agreement was not the result of the normal bargaining process but rather was a standard form contract prepared solely by the defendant and signed by the plaintiff, who was in a weaker position and had little choice as to its terms. In fact, the only choices members may make pertain to the length of term and the manner of payment.
“Finally, it is noted that like the business of horseback riding, the business of health clubs is thought suitable for public regulation. See Conn. Gen. Stat. §21a-216 et seq. This court is mindful of the fact that Reardon ‘recognized the clear public policy in favor of participation in athletics and recreational activities [such as a health club membership].’ Reardon v. Windswept Farm, LLC, supra, 280 Conn. 161. In making this determination, Reardon relied upon the fact that these types of activities ‘constitute an important and healthy part of everyday life.’ Id. Thus, any exculpatory agreement which would excuse the potential negligence of the health club would seem to be in conflict with the public policy of encouraging participation in athletics and other recreational activities. In considering the totality of the circumstances in this case and in recognizing the public policy of encouraging recreational activities, the court concludes that the release provision in the membership agreement is void, as it is contrary to public policy.”
Diane Schneeloch v. Glastonbury Fitness & Wellness, Inc. et al.; Super. Ct. Conn., Hartford; CV065007348, 2009 Conn. Super. LEXIS 191; 2/2/09


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