          IN THE SUPREME COURT OF THE STATE OF DELAWARE

DESHAUN KETLER and                 §
BRITTANY KETLER, his wife,         §    No. 319, 2015
                                   §
     Plaintiff-Below,              §
     Appellant,                    §    Court Below: Superior Court
                                   §    of the State of Delaware
     v.                            §
                                   §
PFPA, LLC, a Delaware              §
Corporation, d/b/a                 §    C.A. No. N14C-12-235
Planet Fitness,                    §
                                   §
     Defendant-Below,              §
     Appellee.                     §

                        Submitted: December 2, 2015
                         Decided: January 15, 2016

Before STRINE, Chief Justice; VALIHURA, and VAUGHN, Justices.

Upon appeal from the Superior Court. AFFIRMED.

Edward T. Ciconte, Esquire, Adam F. Wasserman, Esquire, Ciconte, Scerba &
Kerrick, LLC, Wilmington, Delaware, for Appellant.

Gary H. Kaplan, Esquire, Jessica L. Tyler, Esquire, Marshall Dennehey Warner
Coleman & Goggin, Wilmington, Delaware, for Appellee.




VAUGHN, Justice:
       Plaintiffs-Below/Appellants DeShaun Ketler and Brittany Ketler appeal from

a Superior Court order granting Defendant-Below/Appellee PFPA, LLC’s (“Planet

Fitness”) motion for judgment on the pleadings. DeShaun Ketler was injured while

using exercise equipment in a Planet Fitness facility. The Ketlers claim that the

injuries were caused by negligence on the part of Planet Fitness. The Superior Court

found that the Ketlers claim was barred by a signed release of liability. It determined

that a release which allows a party to avoid liability for its own negligence is

permissible under Delaware Law if the release is unambiguous, not unconscionable,

and not against public policy. It further determined that the release satisfied all three

criteria. On appeal, the Ketlers contend that the Superior Court erred because the

release is ambiguous, unconscionable, and against public policy. We approve the

Superior Court’s determinations and affirm.

       In 2010, DeShaun joined Planet Fitness at a cost of $10 per month.1 DeShaun

signed a membership agreement, which contained the following:

           I understand and expressly agree that my use of this Planet
           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
1
 Devana Fitness, LLC was the franchisee of the Planet Fitness location on the date the Membership
Agreement was executed. On July 31, 2012, prior to Ketler’s incident, Devana Fitness, LLC
assigned its rights and interests in, and under, all Membership Agreements to PFPA, LLC.

                                               1
          accept this risk and agree that Planet Fitness . . . will not be liable
          for 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.2

In April 2013, DeShaun was injured when a cable broke on a seated rowing machine

that he was using at Planet Fitness.

       This Court has previously recognized that a release of prospective negligence

may be valid.3 Such a release must be “‘clear and unequivocal’ to insulate a party

from liability . . . .”4 The release provision involved here expressly releases Planet

Fitness from any liability for any injury resulting from the negligence of Planet

Fitness, whether related to exercise or not. It expressly releases Planet Fitness from

any and all claims or causes of action. The provision’s language is clear and

unequivocal.




2
  Appellant’s Op. Br. App. at A8.
3
  Riverbend Cmty., LLC v. Green Stone Eng’g, LLC, 55A.3d 330, 336 (Del. 2012).
4
  Id. (quoting State v. Interstate Amiesite Corp., 297 A.2d 41, 44 (Del. 1972)).

                                              2
       It must also not be unconscionable. Unconscionability is a concept that is used

sparingly.5 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.”6 “But mere disparity between the bargaining

powers of parties to a contract will not support a finding of unconscionability.”7

“[T]here must be an absence of meaningful choice and contract terms unreasonably

favorable to one of the parties.”8 There is no deprivation of meaningful choice if a

party can walk away from the contract.9 Here, DeShaun was free to accept the Planet

Fitness membership or not. The Superior Court did not err in concluding that the

release is not unconscionable.

       Finally, the release must not violate public policy. The public policy of this

state is typically determined by the Delaware General Assembly. No Delaware statute

has been identified which bears on the validity of a release of prospective negligence.



5
  See Progressive Int’l Corp. v. E.I. DuPont de Nemours & Co., 2002 WL 1558382, at *11 (Del. Ch.
July 9, 2002) (discussing the reluctance of courts to apply the doctrine).
6
  Reserves Mgmt., LLC v. Am. Acquisition Prop., LLC, 2014 WL 823407, at *9 (Del. Feb. 28, 2014)
(internal quotations omitted).
7
  Id.
8
  Tulowitzki v. Atl. Richfield Co., 396 A.2d 956, 960 (Del. 1978).
9
  See Graham v. State Farm Mut. Auto. Ins. Co., 565 A.2d 908, 913 (Del. 1989) (finding the doctrine
of unconscionability inapplicable, in part, because the plaintiffs had the opportunity to cancel the
insurance policy); Progressive, 2002 WL 1558382, at *11 (rejecting the plaintiff’s unconscionability
argument, in part, because nothing had prevented the plaintiff from walking away from a contract
with allegedly unfavorable terms).

                                                 3
The Ketlers argue that the release violates the public policy embodied in the principle

that a property owner has a duty to make his property safe for business invitees.

However, a general release by its nature releases a party from a potential liability

otherwise imposed by law.        The public policy involved must be one which

disapproves of the release.

      For the foregoing reasons, the judgment of the Superior Court is AFFIRMED.




                                          4
