J-S06017-18

                                2018 PA Super 113

 DOLORES VINSON                          :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                    Appellant            :
                                         :
                                         :
              v.                         :
                                         :
                                         :
 FITNESS & SPORTS CLUBS, LLC,            :   No. 2875 EDA 2016
 FITNESS INTERNATIONAL, LLC, LA          :
 FITNESS INTERNATIONAL, LLC              :

              Appeal from the Order Entered August 11, 2016
    In the Court of Common Pleas of Philadelphia County Civil Division at
                            No(s): 150703082


BEFORE: BOWES, J., McLAUGHLIN, J., and MUSMANNO, J.

OPINION BY McLAUGHLIN, J.:                              FILED MAY 04, 2018

      Dolores Vinson appeals from the trial court’s August 11, 2016 order

granting summary judgment in favor of Appellee, Fitness International, LLC

(f/k/a L.A. Fitness International, LLC)(“L.A. Fitness”). We affirm.

      L.A. Fitness operates fitness clubs/gyms, including the one here at issue,

which is located in Huntingdon Valley, Pennsylvania. Vinson became a member

of this fitness facility on July 4, 2012, when she signed a three-page

membership agreement (“Membership Agreement”). The first page of the

Membership Agreement states, inter alia, that L.A. Fitness and the

undersigned buyer agree “that you are purchasing a membership from L.A.

Fitness according to the terms on both pages of this Membership Agreement

and the Membership Policies and Club Rules and Regulations . . . .”
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Membership Agreement at 1. Vinson signed the Membership Agreement at the

bottom of page 1.

     The second page of the Member Agreement contains an exculpatory

provision (“Exculpatory Clause”) that is printed enclosed in a black box. The

Exculpatory Clause reads as follows:

     IMPORTANT: RELEASE AND WAIVER OF LIABILITY AND
     INDEMNITY. You hereby acknowledge and agree that use by
     Member and/or by Members minor children of L.A. Fitness'
     facilities, services, equipment or premises, involves risks of injury
     to persons and property, including those described below, and
     Member assumes full responsibility for such risks. In consideration
     of Member and Member’s minor children being permitted to enter
     any facility of 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, Member’s children 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 or Member’s minor
     children are 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 or
     Member’s children 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(s) or
     otherwise. You represent (a) that Member and Member's minor
     children are in good physical condition and have no disability,
     illness, or other condition that could prevent Member(s) from
     exercising without injury or impairment of health, and (b) that
     Member has consulted a physician concerning an exercise
     program that will not risk injury to Member or impairment of
     Members health. Such risk of injury includes (but is not limited
     to): injuries arising from use by Member or others of exercise

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      equipment and machines; injuries arising from participation by
      Member or others in supervised or unsupervised activities or
      programs at a Club; injuries and medical disorders arising from
      exercising at a Club such as heart attacks, strokes, heat stress,
      sprains, broken bones, and torn muscles and ligaments, among
      others; and accidental injuries occurring anywhere in Club
      dressing rooms, showers and other facilities. Member further
      expressly agrees that the foregoing release, waiver and indemnity
      agreement is intended to be as broad and inclusive as is permitted
      by the law of the State of Pennsylvania and that if any portion
      thereof is held invalid, it is agreed that the balance shall,
      notwithstanding, continue in full force and effect. Member has
      read this release and waiver of liability and indemnity clause, and
      agrees that no oral representations, statements or inducement
      apart from this Agreement have been made.

Membership Agreement at 2 (emphasis added).

      According to her deposition testimony, Vinson acknowledges signing the

Membership Agreement, although she does not recall reading the document

at the time she signed it. Vinson Deposition Testimony, 5/10/16, at 71-73.

Directly above the signature line of the Membership Agreement, the following

language is provided: “By signing this Agreement, Buyer acknowledges that

Buyer . . . has received a filled-in and completed copy of the Agreement has

read and understands the entire agreement including but not limited to . . .

the Release and Waiver of Liability and Indemnity . . . .” Membership

Agreement at 1.

      On July 28, 2015, Vinson filed a complaint against L.A. Fitness, sounding

in negligence. Specifically, Vinson claimed that on October 1, 2013, she

tripped and fell on a wet floor mat causing her to suffer serious and permanent

personal injuries. Vinson’s Complaint at 2. In short, Vinson averred that L.A.

Fitness’s negligence regarding the maintenance of the premises caused the


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conditions that directly resulted in her injuries. Id. 2-4. L.A. Fitness filed an

Answer and New Matter on September 3, 2015, wherein it asserted that

Vinson’s claim was barred by the Exculpatory Clause. Vinson countered by

filing a Reply on October 1, 2015.

      L.A. Fitness filed a Motion for Summary Judgment on June 30, 2016,

claiming that (1) Vinson could not demonstrate that L.A. Fitness created or

had notice of the wet mat; (2) Vinson had not provided the requisite expert

to establish the applicable standard of care; and (3) the Exculpatory Clause

precluded recovery. The trial court granted L.A. Fitness’s motion on August

11, 2016, without further explanation. Vinson filed a court-ordered Pa.R.A.P.

1925(b) Statement of Matters Complained of on Appeal and, in a Rule 1925(a)

Opinion, the trial court explained that it granted L.A. Fitness’s Motion for

Summary Judgment on the basis of the Exculpatory Clause. The instant timely

appeal followed.

      Vinson raises two issues for our review:

          1. Whether the trial court abused its discretion and
             otherwise committed an error of law when it improperly
             granted [L.A. Fitness’s] Motion for Summary Judgment?

          2. Whether the trial court abused its discretion and
             otherwise committed an error of law when it improperly
             granted [L.A. Fitness’s] Motion for Summary Judgment
             where there exists a genuine dispute as to material fact
             as to whether important public policy issues are
             implicated and render the exculpatory provision
             unenforceable?

Vinson’s Brief at 6.




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       The crux of both of Vinson’s issues lies in her contention that the

Exculpatory Clause is invalid because it contravenes public policy. Vinson

specifically asserts that her claim involves a vital matter of public health and

safety. She argues that her cause of action involves the maintenance of

facilities, which concerns the obvious health and safety of members of the

public. To this end, she relies upon Leidy v. Deseret Enterprises, Inc., 381

A.2d 164 (Pa.Super. 1977) (vacating grant of judgment on pleadings where

plaintiffs had pleaded that exculpatory provision in spa contract was

unconscionable).

       Conversely, L.A. Fitness contends that the Exculpatory Clause does not

violate public policy because the Membership Agreement constituted a

contract between private parties and did not involve any public entity or

concern. In support, L.A. Fitness specifically points to this Court’s recent

decisions in Toro v. Fitness International LLC., 150 A.3d 968 (Pa.Super.

2016) (holding that same exculpatory clause as is at issue here was

enforceable and not contrary to public policy),1 and Hinkal v. Pardoe, 133

A.3d 738 (Pa.Super. 2016), appeal denied, 141 A.3d 481 (Pa. 2016) (holding

____________________________________________


1 Vinson argues that Toro should not be applicable to the instant matter
because that case was decided several months after the trial court granted
L.A. Fitness summary judgment in this case. However, it is well settled that
“[n]ormally, we apply a new decision to cases pending on appeal at the time
of the decision. The general rule followed in Pennsylvania is that we apply the
law in effect at the time of the appellate decision.” Christy v. Cranberry
Volunteer Ambulance Corps, Inc., 856 A.2d 43, 51 (Pa. 2004) (citations
and quotations omitted). Therefore, we discern no err in the application of
Toro to the instant case.

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exculpatory provision in gym membership agreement to be valid and

enforceable). The trial court agreed with L.A. Fitness, finding the Exculpatory

Clause “to be valid and enforceable against the [] arguments raised by

[Vinson].” Trial Court Op., 8/28/17, a 2. We agree with the trial court, and

conclude that no relief is due.

      We begin by noting that an order granting summary judgment is subject

to the following scope and standard of appellate review:

      A reviewing court may disturb the order of the trial court only
      where it is established that the court committed an error of law or
      abused its discretion. As with all questions of law, our review is
      plenary.

      In evaluating the trial court’s decision to enter summary
      judgment, we focus on the legal standard articulated in the
      summary judgment rule. [Pa.R.C.P. 1035.2.] The rule states that
      where there is no genuine issue of material fact and the moving
      party is entitled to relief as a matter of law, summary judgment
      may be entered. Where the nonmoving party bears the burden of
      proof on an issue, he may not merely rely on his pleadings or
      answers in order to survive summary judgment. Failure of a non-
      moving party to adduce sufficient evidence on an issue essential
      to his case and on which he bears the burden of proof… establishes
      the entitlement of the moving party to judgment as a matter of
      law. Lastly, we will review the record in the light most favorable
      to the non-moving party, and all doubts as to the existence of a
      genuine issue of material fact must be resolved against the
      moving party.

Toro, 150 A.3d at 972 (quoting Murphy v. Duquesne Univ. of the Holy

Ghost, 777 A.2d 418, 429 (Pa. 2001)).

      The Pennsylvania Supreme Court has held that exculpatory provisions

in contracts are valid where three conditions are met: “First, the clause must

not contravene public policy. Secondly, the contract must be between persons


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J-S06017-18


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.” Chepkevich v. Hidden Valley Resort, L.P., 2 A.3d 1174, 1189

(Pa. 2010) (holding exculpatory provision contained in contract regarding

season pass at ski resort was valid and did not contravene public policy).

      When embarking on a public policy analysis, we recognize that

exculpatory provisions “violate public policy only when they involve a matter

of interest to the public or the state. Such matters of interest to the public or

the state include the employer-employee relationship, public service, public

utilities, common carriers, and hospitals.” Seaton v. E. Windsor Speedway,

Inc., 582 A.2d 1380, 1382 (Pa.Super. 1990). Our Supreme Court has set a

high bar that a party must clear before a court may invalidate a contract on

public policy grounds:

      It is only when a given policy is so obviously for or against the
      public health, safety, morals or welfare that there is a virtual
      unanimity of opinion in regard to it, that a court may constitute
      itself the voice of the community in so declaring [that the contract
      is against public policy].

Williams v. GEICO Gov’t Employees Ins. Co., 32 A.3d 1195, 1200 (Pa.

2011) (citation omitted). “[P]ublic policy is to be ascertained by reference to

the laws and legal precedents and not from general considerations of

supposed public interest.” Id.

      The case sub judice is very similar to Toro. In that case, this Court

considered whether the same exculpatory clause here at issue, employed by



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the same Appellee, L.A. Fitness, violated public policy. In Toro, the plaintiff

slipped and fell on what he described as an “unusual buildup” of “soapy water”

on the floor. Toro, 150 A.3d at 971. The trial court granted summary

judgment in favor of L.A. Fitness on the basis of the exculpatory clause. Our

Court affirmed and specifically concluded that the exculpatory clause did not

contravene public policy:

      Here, as in Chepkevich, Toro was engaged in a voluntary athletic
      or recreational activity: going to the gym. Before he was injured,
      he signed an agreement that explicitly provided that, by signing
      it, he waived all claims for any injury he suffered at the L.A.
      Fitness facility, even if the injury was caused by the negligence of
      L.A. Fitness. As in Chepkevich the Waiver Clause in this case is
      not contrary to public policy and the trial court therefore was
      correct in reaching that conclusion.

Id. at 974.

      Vinson attempts to distinguish Toro by emphasizing factual differences.

She claims the plaintiff’s injury there involved a transient hazard, i.e., an

unusual build-up of water, whereas here, Vinson contends, the wet mat

indicated a systemic problem with facility maintenance. Therefore, according

to Vinson, this case more strongly implicates the public interest in health and

safety. However, we find this distinction unavailing because both cases involve

private individuals engaged in recreational activity, which is not classifiable as

a matter of public or state interest. See Seaton, 582 A.2d at 1382; Williams,

32 A.3d at 1200.

      Likewise, this Court’s decision in Hinkal also supports the trial court’s

grant of summary judgment in this case. There, we upheld a similar


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exculpatory provision within a Gold’s Gym membership agreement, thereby

barring a personal injury claim purportedly sustained during a personal

training session at that gym. In so holding, we emphasized that “the

exculpatory language at issue cannot be said to violate public policy because

it was an agreement between a private individual and entities, and because it

did not address matters of interest to the public or the state.” Hinkal, 133

A.3d at 742.2 Vinson attempts to distinguish Hinkal by highlighting that the

injury in that case occurred during the course of athletic pursuits, whereas

Vinson alleges she sustained injuries due to faulty maintenance. Once again,

we find this factual distinction to be of no movement because of the private

nature of the Membership Agreement.

       Vinson argues that this case is more closely akin to Leidy. There, this

Court concluded that a spa contract’s exculpatory provision did not entitle the

spa to judgment on the pleadings. A physical therapist at the spa had

performed services on the plaintiff that caused injury and were directly

contrary to a doctor’s directives. Leidy, 381 A.2d at 166. The spa had pleaded

the exculpatory provision as a defense to the action, and the plaintiff had

pleaded in response that the provision was unenforceable because it was


____________________________________________


2 We acknowledge that Judge Lazarus, joined by Judge Panella, authored a
dissent in Hinkal wherein they opined that personal training services
substantially concern “health and safety” to the extent that the exculpatory
provision at issue there was invalid as it violated public policy. Significantly,
the majority in Hinkal, sitting en banc, disagreed with this view and, in any
event, the instant case does not involve personal training services.

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unconscionable. Id. Noting that the case was only at the pleading stage, and

not before us on appeal from the grant of summary judgment, we reversed

the grant of judgment on the pleadings. Id. 169. We pointed out that the

spa’s physical therapist was subject to the Physical Therapy Practice Act, 63

P.S. §§ 1301-1313, which permits physical therapists to perform treatments

only pursuant to a physician’s orders.3 We explained that the statute

supported the claim that the exculpatory clause was unconscionable. Id. We

held that because the plaintiffs had pleaded the unconscionability of the

exculpatory provision, the entry of judgment on the pleadings was improper.

Id. at 170.

       This case is on entirely different footing than Leidy. This case comes to

us on appeal from an order granting summary judgment, not judgment on the

pleadings. The procedural posture matters because here, unlike in Leidy, the

determination of whether the defendant was entitled to judgment as a matter

of law was based not on contradictory allegations in pleadings, but on the

parties’ arguments and evidence, developed after a full opportunity for

discovery.

       Here, Vinson was voluntarily engaged in recreational activity, attending

the gym, and was subject to the Membership Agreement, an agreement



____________________________________________


3 See 63 P.S. § 1309 (“Any person licensed under this act as a physical
therapist shall not treat human ailments by physical therapy or otherwise
except by the referral of a person licensed in this State as a physician . . .”).

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between private parties. Vinson has not identified any statutory provision, no

administrative regulation, or any legal precedent to support her claim that the

Exculpatory     Clause    was    unenforceable.    She   instead   relies   on   mere

suppositions of the public interest, which are insufficient to invalidate a

contract provision for violation of public policy. See Williams, 32 A.3d at

1200. Thus, Vinson’s issues on appeal lack merit.4 Accordingly, we affirm the

trial court’s entry of summary judgment in favor of L.A. Fitness.




____________________________________________


4 In a footnote, Vinson asserts, for the first time on appeal, that she might not
have even received the Exculpatory Clause because it was printed on the
second page of the Membership Agreement and she only signed the first page.
Vinson’s Brief at 15. This argument is waived. See Pa.R.A.P. 302(a) (“Issues
not raised in the lower court are waived and cannot be raised for the first time
on appeal”). However, even were it not waived, Vinson’s claim lacks merit
because she acknowledged receiving the Exculpatory Clause via the language
just above the signature line on the first page of the Membership Agreement.
The language states that she “has received a filled-in and completed copy of
the Agreement has read and understands the entire agreement including but
not limited to . . . the Release and Waiver of Liability and Indemnity.” Further,
whether Vinson took the time to read the Exculpatory Clause is beside the
point. It is well settled that “failure to read [the contract] is an unavailing
excuse or defense and cannot justify an avoidance, modification or nullification
of the contract or any provision thereof.” In re Estate of Olson, 291 A.2d
95, 98 (Pa. 1972) (citation omitted).

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J-S06017-18


     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/4/18




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