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                              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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