SUPERIOR COURT
OF THE
STATE OF DELAWARE

RICHARD F. STOKES SUSSEX COUNTY COURTHOUSE
JUDGE 1 THE CIRCLE, SUITE 2

GEORGETOWN, DE 19947
TELEPHONE (302) 856-5264

June19, 2017

Tasha M. Stevens, Esq.

Fuqua, Willard, Stevens & Schab, P.A.
26 The Circle

Georgetown, Delaware 19947

Jennifer D. Donnelly, Esq.

Marshall, Dennehey, Warner, Coleman & Goggin
1007 N. Orange Street

P.O. Box 8888

Wilmington, Delaware 19899

Re: Jean Francois Mackenson v. Michael Anthony and RB Gyms, Inc.
C.A. No. Sl6C-12-001-RFS

Date Submitted: May 4, 2017
Date Decided: June 19, 2017

Upon Defendant’s Motion for Judgment on the Pleadings.
Granted.

Dear Parties:

Before the Court is Defendants’, Michael Anthony and RB Gyrns Inc. (“Defendants”),
Motion for Judgment on the Pleadings. For the reasons expressed below, the Motion is

GRANTED.

l. BACKGROUND
On December 1, 2016, Plaintiff, Jean Francois Mackenson (“Plaintiff”), filed his

Complaint alleging that, as a result of Defendants’ negligence, he Was injured While using the bar

of a machine to do pull-ups at Club Fitness located in Rehoboth Beach, Delaware. Specifically,
the rubber grip on the pull-up bar detached, causing Plaintiff to lose his grip on the bar and his
resultant injury.

Plaintiff signed a Membership Agreement with Club Fitness on January 3, 2012. lt
should be noted that Plaintiff signed his name on the line provided for “Legal
Guardian/Guarantor Signature” rather than the line provided for “Member Signature.”l Plaintiff
was a member of the gym When the incident occurred. The Membership Agreement includes a
liability waiver clause, which reads in pertinent part as follows:

Waiver. 24/7 Club Fitness and any of its affiliates are not responsible for any
injury (or loss of property) suffered while participating in club activities, using
equipment, improper supervision or instruction, or on club premises, for any
reason whatsoever, including ordinary negligence on the part of CF, its agents, or
employees l understand that these and other physical activities at CF involve
certain risks, including but not limited to, death, serious neck and spinal injuries
resulting in complete or partial paralysis, heart attacks, and injury to bones, joints
or muscles. l am voluntarily participating in club activities with knowledge of
dangers involved and hearby release and covenant not to sue CF, its affiliates, its
owners, employees, instructors, or agents, from any and all present or future
claims resulting from ordinary negligence on the part of CF or others listed. l
further agree to indemnify and hold harmless CF and others listed for any and all
claims arising as a result of my engaging in club activities or any activities
incidental thcl'eto.2

On January 20, 2017, Defendants filed a Motion for Judgment on the Pleadings under
Superior Court Civil Rule 12(c)3 based upon the waiver contained in the Membership
Agreement. Defendants argue that Plaintiff’ s signing of the waiver constituted a primary

assumption of risk, which, in Defendants’ words, “applies when a plaintiff relieved a defendant

 

l The Validity of Plaintiffs signature will be addressed later.
2 Pl.’s Answer Def.’s Mot. J. Pleadings, Ex. A.
3 Super. Ct. Civ. R. 12(c) provides:

(c) Motion for Judgment on the Pleadings. After the pleadings are closed but within such time as not to
delay the trial, any party may move for judgment on the pleadings If, on a motion for judgment on the
pleadings, matters outside the pleadings are presented to and not excluded by the Court, the motion shall be
treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given
reasonable opportunity to present all material made pertinent to such a motion by Rule 5 6.

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of an obligation of conduct toward him and takes his chances of injury from a known risk arising
from what the defendant is to do or leave undone.”4

On February 6, 2017, Plaintiff filed his Answer to Defendants’ Motion for Judgment on
the Pleadings. Plaintiff argues that his failure to sign the Membership Agreement on the correct

line defeats the contract. He further asserts that this is a factual determination inappropriate for
consideration on a Motion for Judgment on the Pleadings.
II. STANDARD OF REVIEW
The standard of review for a judgment on the pleadings is summarized in Catawba

Associates-Christiana, LLC v. Jayaraman:

...[A] party is entitled to judgment on the pleadings where there is no material
fact in dispute and the moving party is entitled to judgment under the law. “A
court should not grant such a motion unless it appears to a reasonable certainty
that the non-movant would not be entitled to relief for its claims under any set of
facts that could be proven in support of its allegations.”

In reviewing the motion, the Court must accept all the “complaint’s well-pled
facts as true and construe all reasonable inferences in favor of the non-moving
palrty.” The Court may consider exhibits and documents incorporated by
reference into the complaint5
III. ANALYSIS
The facts in this case are nearly identical to those in a previous case, Ketler v. PFPA,
LLC. ln Ketler, the Plaintiff was injured while using exercise equipment at Defendant’s Planet

Fitness gym.6 Plaintiff claimed that his injuries were caused by Defendant’s negligent acts.7

Like here, Plaintiff had signed a membership agreement containing a liability waiver.8 The

 

4 Defs.’ Mot. J. Pleadings, 3.

5 Catawba Associates-Christiana, LLC v. Jayaraman, 2016 WL 4502306, at *5 (Del. Super. Ct. Aug. 26,
2016)(internal citations omitted).

6 Ketler v. PFPA, LLC, 132 A.3d 746, 747 (Del. 2016).

7 Id.

8 Id.

language contained in the Ketler waiver and the instant wavier is virtually identical9 The
Delaware Supreme Court held that a prospective release of negligence will be valid as long as
the release is “clear and unequivocal,” not unconscionable, and does not violate public policy.10

Thus, it is clear that as long as the waiver at hand meets the three criteria above it will
stand. The language of Defendants’ waiver is clear and unequivocal There is no ambiguity.
The Membership Agreement expressly releases Defendants from any liability for any injury
resulting from their own negligence. The first criterion is clearly satisfied.

Furthermore, the Membership Agreement is not unconscionable The Ketler Court
succinctly described the concept of unconscionability:

Unconscionability is a concept that is used sparingly. Traditionally, an

unconscionable contract is one which “no man in his senses and not under

delusion would make on the one hand, and as no honest or fair man would accept,

on the other.” “But mere disparity between the bargaining powers of parties to a

contract will not support a finding of unconscionability.” “There must be an

absence of meaningful choice and contract terms unreasonably favorable to one of

the pan'ies.” There is no deprivation of meaningful choice if a party can walk

away from the contract.ll

Plaintiff was free to walk away from the contract, so there can be no finding of

unconscionability. Therefore, the second criterion is also met.

 

9 The Plant Fitness membership agreement contained the following waiver:

I understand and expressly agree that my use of this Plant Fitness facility. . .involves the risk of injury to me
or my guest Whether caused by me or not. I understand that these risks can range from minor injuries to
major injuries including death. In consideration of my participation in the activities and use of the facilities
offered by Planet Fitness, I understand and voluntarily accept this risk and agree that Planet Fitness. . .will
not be liable f`or any injury, including, without limitation, personal, bodily, or mental injury...resulting
from the negligence of Planet Fitness or anyone on Planet Fitness’ behalf whether related to exercise or not.
Accordingly, I do hereby forever release and discharge Planet Fitness from any and all claims, demands,
injuries, damages, actions or causes of action. I further understand and acknowledge that Planet Fitness
does not manufacture fitness or other equipment in its facilities, but purchases and/or leases equipment, and
therefore Planet Fitness may not be held liable for defective products.

10 Ke¢ler, 132 A.3d ar 747-48.

“ Id. at 748 (intemal citations emitted).

Finally, the liability waiver must not run counter to public policy. The Delaware General

Assembly determines the public policy of this State12 There is no statute applicable to the

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validity of a prospective release from ordinary negligence Therefore, allowing a contractual

liability waiver does not violate the public policy of the State of Delaware The final criterion is
satisfied. Given that the conditions laid out by the Supreme Court are met, this waiver must be
found valid, in accordance with Ketler.

Additionally, the fact that Plaintiff signed the Membership agreement on the line
intended for a legal guardian/ guarantor signature rather than the line for a member signature is
inconsequential. Examination of the contract clearly shows that Plaintiff was a party to the
contract. His name is listed at the beginning of the document, and he initialed several places
throughout the document,14 Additionally, Plaintiff admitted in his Complaint that he was a
member of Club Fitness “[a]t the time of the injury and at all time pertinent hereto. . .”15 Thus,
the Membership Agreement is clear on its face that Plaintiff was a party to the contract. There is
no factual determination to be made Plaintiff simply signed his name on the incorrect line]6;
such error does not invalidate the Membership Agreement. As a result, there is no set of facts
which can be proven that would allow Plaintiff to recover. Thus, judgment on the pleadings in
favor of Defendants is appropriate

Considering the foregoing, Defendants’ Motion for Judgment on the Pleadings is

GRANTED.

 

12 ld.

13 Id.

14 Pl.’s Answer Def.’s Mot. J. Pleadings, Ex. A.

15 Compl., 2 at para. 9.

16 Plaintiff was 22 years old at the time the Membership Agreement was signed. Thus, the portions of the contract
relating to a legal guardian/ guarantor signature taking responsibility for a person under the age of 18 are irrelevant.
Plaintiff"s age at the time the contract was made is further proof that he simply signed in the wrong location. Even
if, for the purpose of this discussion only, Plaintiff signed the Membership Agreement as a legal guardian , a legal
guardian would still be subject to all provisions of the contract, including the liability waiver at hand. In other
words, the capacity of the signer is immaterial in the context of this case

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lT IS SO ORDERED.

 

cc: Prothonotary’s Office

