RELEASES AND WAIVERS IN HEALTH CLUB MEMBERSHIP APPLICATIONS [AND OTHER RECREATIONAL ACTIVITIES] JAMES GRAFTON RANDALL, ESQ.

RELEASES AND WAIVERS IN HEALTH CLUB MEMBERSHIP APPLICATIONS [AND OTHER RECREATIONAL ACTIVITIES] JAMES GRAFTON RANDALL, ESQ.

CASENOTE JAMES GRAFTON RANDALL, ESQ. RELEASES AND LIABILITY WAIVERS IN HEALTH CLUB MEMBERSHIP AGREEMENTS A. California Courts Repeatedly Have Enforced Releases Involving Claims Against Health Clubs When The Release Agreement s Clear Language Covers The Injury-Producing Event California courts repeatedly have enforced releases involving claims against health clubs when the release agreement s clear language covers the injury-producing event. A release and liability waiver in a health club membership agreement may relieve [the] health club of due care it otherwise would be obligated to provide. (Zipusch v. LA Workout, Inc. (2007) 155 Cal.App.4th 1281, 1288.) The liability of property owners for injuries sustained by individuals on their premises is generally governed by ordinary negligence principles, as set forth in Civil Code section 1714, subdivision (a). ( Rowland v. Christian (1968) 69 Cal.2d 108, 119; Pineda v. Ennabe (1998) 61 Cal.App.4th 1403, 1407.) The controlling question is whether the property owner has acted as a reasonable person in the management of his or her property in view of the probability of injury to others. ( Ortega v. KMart Corp. (2001) 26 Cal.4th 1200, 1205.) Recovery may be barred, however, if the plaintiff has signed an express contractual assumption of risk or release of liability before becoming injured. [S]uch an agreement operates to relieve the defendant of a legal duty to the plaintiff with respect to the risks encompassed by the agreement and, where applicable, to bar completely the plaintiff's cause of action. ( Knight v. Jewett (1992) 3 Cal.4th 296, 308-309, fn. 4; see Coates v. Newhall Land & Farming, Inc. (1987) 191 Cal.App.3d 1, 7-8 [ By an advance waiver of liability, a potential plaintiff promises not to exercise the right to sue for harm caused in the future by the wrongful behavior of a potential defendant, eliminating a remedy for wrongdoing. By an express assumption of risk, the potential plaintiff agrees not to expect the potential defendant to act carefully, thus eliminating the potential defendant's duty of care, and acknowledging the possibility of negligent wrongdoing ].) It is obvious that patrons of health clubs sign release and assumption of risk provisions in contemplation of injuries that occur in the course of using the facilities for the primary purpose of exercising and using exercise equipment. ( Sanchez v. Bally's Total Fitness Corp. (1998) 68 Cal.App.4th 62, 68.) Several cases have upheld and applied release provisions in fitness membership agreements to preclude negligence claims. (See, e.g., ibid. [release precluded negligence claim arising from slip and fall on aerobics mat]; Lund v. Bally's Aerobic Plus, Inc. (2000) 78 Cal.App.4th 733 [release precluded claims arising from alleged negligence of personal trainer]; Benedek v.

PLC Santa Monica (2002) 104 Cal.App.4th 1351 [release barred claim for injuries arising out of member's attempt to adjust television located above exercise equipment].) B. Release and Liability Waiver Is An Affirmative Defense And The Defendant Bears The Burden of Establishing Each Element of The Defense: A release and liability waiver is an affirmative defense. (Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 856.) When a defendant seeks summary judgment based on an affirmative defense, the defendant bears the initial burden to produce evidence establishing each element of the defense. (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.) If the defendant fails to establish every element, the motion must be denied regardless of whether the plaintiff presented any evidence in opposition. (Ibid.) But if the defendant meets its initial burden, the burden shifts to the plaintiff to present evidence establishing a triable issue of material fact concerning at least one element of the affirmative defense. (Anderson v. Metalclad Insulation Corp. (1999) 72 Cal.App.4th 284, 290.) We review a trial court s decision granting summary judgment de novo. (Wills v. Superior Court (2011) 195 Cal.App.4th 143, 161.) Contract principles apply when interpreting a release, and normally the meaning of contract language, including a release, is a legal question. [Citation.] Where, as here, no conflicting parol evidence is introduced concerning the interpretation of the document, construction of the instrument is a question of law, and the appellate court will independently construe the writing. [Citation.] (Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351, 1356 (Benedek).) 1. Not Against Public Interest: A health club may use a release to contractually reallocate risk for its own negligence and premises liability to its members. (Benedek, supra, 104 Cal.App.4th at pp. 1356, 1359.) Doing so do[es] not implicate the public interest and therefore [is] not void as against public policy. [Fn. omitted.] (Zipusch, at p. 1288.) Recreational activities such as snow skiing or parachute jumping are not essential services or necessities affecting the public within the meaning of Tunkl. ( Platzer v. Mammoth Mountain Ski Area, supra, 104 Cal.App.4th at pp. 1259 1260, Paralift, Inc. v. Superior Court ( Levin ) (1993) 23 Cal.App.4th 748, 756 758 [release for parachuting activities].) To that list, we add aerial sightseeing tours. Booth v. Santa Barbara Biplanes, LLC (2008) 158 Cal.App.4th 1173, 1179. However, in Gavin W. v. YMCA of Metropolitan Los Angeles (2003) 106 Cal.App.4th 662, a child and his parents brought action against child care provider for damages arising from incident of sexual touching between plaintiff child and another child in child care program. The Superior Court found a release signed by parents when they enrolled child in program barred plaintiffs' negligence and breach of contract claims, and entered judgment for jury's verdict for provider on parents' fraud claim. Plaintiffs appealed. The Court of Appeal held that a release of claims that purports to exculpate a child care provider from its own negligence is void as against public policy. An exculpatory provision is void as against public policy when it either concerns a matter of great importance to the public or is the result of unequal bargaining power. Like the relationship between a hospital and its patients, the relationship between a child care

provider and the families who use and depend upon its services has all the characteristics of a contract affecting the public interest. See: Tunkl v. Regents of University of California (1963) 60 Cal.2d 92, 96 97 & fn. 6 and Civ.Code, 1668, as for releases which are invalid as against public policy. In Tunkl, a hospital's use of a general release to exculpate itself from liability for the negligent treatment of patients violated public policy because the hospital performed a service of great importance to the public, which is often a matter of practical necessity for some members of the public. ( Tunkl, supra, 60 Cal.2d at p. 99). 2. Must Be Clear And Unambiguous: To be effective, a written release purporting to exculpate a tortfeasor from future negligence or misconduct must be clear, unambiguous, and explicit in expressing the intent of the subscribing parties. ( Bennett v. United States Cycling Federation (1987) 193 Cal.App.3d 1485, 1490.) An ambiguity exists when a party can identify an alternative, semantically reasonable, candidate of meaning of a writing. [Citations.] An ambiguity can be patent, arising from the face of the writing, or latent, based on extrinsic evidence. ( Solis v. Kirkwood Resort Co. (2001) 94 Cal.App.4th 354, 360.) The circumstances under which a release is executed can give rise to an ambiguity that is not apparent on the face of the release. ( Benedek v. PLC Santa Monica, supra, 104 Cal.App. 4th at p. 1357.) To be effective, such a release must be clear, unambiguous, and explicit in expressing the intent of the subscribing parties, but it need not achieve perfection. [Citation.] (Benedek, supra, 104 Cal.App.4th at p. 1356.) The essential question is whether the release s language applies to the injury-producing incident. (Lund v. Bally s Aerobic Plus, Inc. (2000) 78 Cal.App.4th 733, 738 (Lund); Paralift, Inc. v. Superior Court (1993) 23 Cal.App.4th 748, 754 (Paralift).) We determine the scope of the release by its express language. (Benedek, supra, 104 Cal.App.4th at p. 1357.) The release s terms must be applicable to the particular negligence of the defendant, but every possible specific act of negligence of the defendant need not be spelled out in the agreement. [Citation.] When a release expressly releases the defendant from any liability, it is not necessary that the plaintiff have had a specific knowledge of the particular risk that ultimately caused the injury. [Citation.] If a release of all liability is given, the release applies to any negligence of the defendant. It is only necessary that the act of negligence, which results in injury to the releasor, be reasonably related to the object or purpose for which the release is given. [Citation.]... [Citations.] [ ] An act of negligence is reasonably related to the object or purpose for which the release was given if it is included within the express scope of the release. [Citation]. (Id. at pp. 1357-1358.)

Applying these standards, California courts repeatedly have enforced releases involving claims against health clubs when the release agreement s clear language covers the injury-producing event. In Benedek, the plaintiff sued his health club for negligence and premises liability due to injuries he suffered when an overhead television slid off its support bracket as the plaintiff repositioned it before beginning his workout. The health club s membership agreement included a release broadly stating it was intended to be a complete release of any responsibility for personal injuries... sustained by any MEMBER... while on the HOTEL and/or SPA premises, whether using exercise equipment or not. (Benedek, supra, 104 Cal.App.4th at p. 1354, original underscore.) Because the plaintiff signed the release for the express purpose of gaining access to the club s facilities and services, the trial court granted the club s summary judgment motion. (Id. at pp. 1354-1355, 1358.) On appeal, the plaintiff argued the release should be interpreted to apply only to injuries suffered while actively using the health club s exercise equipment. He further argued the release could not bar his action because, as a matter of law, a health club release is not effective to release claims for injuries arising out of circumstances unrelated to fitness. (Benedek, supra, 104 Cal.App.4th at pp. 1358-1359.) The appellate court rejected these arguments because the language of the release agreement unambiguously covered any personal injuries suffered while on [the club s] premises, whether using the exercise equipment or not. (Id. at p. 1358.) As the Benedek court explained, the plaintiff signed the release for the stated purpose of gaining access to the club s facilities and services, not just its exercise equipment. The court concluded the release agreement s plain language validly reallocated all risk of injury to the plaintiff. (Ibid.) In Lund, the plaintiff sued her health club to recover for injuries she suffered while using weightlifting equipment under the direction and supervision of a club trainer. (Lund, supra, 78 Cal.App.4th at pp. 735-736.) The Court of Appeal concluded the release in the club s membership agreement barred the plaintiff s claims because it unambiguously released [the club] from all claims arising out of its negligence, including, injuries which may occur as a result of (a) [the plaintiff s] use of any exercise equipment or facilities,... [and] (c) [the club s] negligent instruction or supervision.... (Id. at p. 738; see also Sanchez v. Bally s Total Fitness Corp. (1998) 68 Cal.App.4th 62, 64-65, 68 (Sanchez) [plaintiff s claims for injuries suffered during an aerobics class barred by release stating the health club shall not be liable for any claims for injuries... arising out of or connected with the use of the fitness center ].) 3. A Release Is Ambiguous When A Party Can Identify An Alternative, Semantically Reasonable Interpretation Of The Release A release is ambiguous when a party can identify an alternative, semantically reasonable interpretation of the release. (Benedek, supra, 104 Cal.App.4th at p. 1357.) Absent extrinsic evidence, both the existence of an ambiguity and the ultimate interpretation of the release agreement are questions of law for the trial court that we review de novo, not questions of fact for the jury. (Paralift, supra, 23 Cal.App.4th at pp. 754-755; Benedek, at p. 1356.) The parties presented no extrinsic evidence regarding

the ambiguity of the language in the release, and therefore we independently construe the terms of the release. (Ibid.) Although the express terms of any release agreement must be applicable to the particular misconduct of the defendant [citation], that does not mean every possible specific act of negligence of the defendant must be spelled out in the agreement or even discussed by the parties. [Citation.] (Sanchez, supra, 68 Cal.App.4th at pp. 6869; see also Benedek, supra, 104 Cal.App.4th at p. 1357.) The plaintiff need not have had a specific knowledge of the particular risk that ultimately caused the injury. (Benedek, at p. 1357.) In Benedek, the release did not refer to injuries caused by a falling television, but the release nonetheless applied because its express terms released the health club from all injuries suffered on its premises. (Id. at p. 1358.) 4. It Is Not Reasonable To Fail To Read A Release: Generally, it is not reasonable to fail to read a contract; this is true even if the plaintiff relied on the defendant's assertion that it was not necessary to read the contract. [Citation.] Reasonable diligence requires a party to read a contract before signing it. [Citation.] ( Brown v. Wells Fargo Bank, N.A. (2008) 168 Cal.App.4th 938, 958 959). Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072, 1080. C. PRIMARY ASSUMPTION OF RISK VS. EXPRESS ASSUMPTION OF RISK Often a plaintiff fails to distinguish between primary assumption of the risk and express assumption of the risk. Primary assumption of the risk most commonly applies in the recreational sport context where, by virtue of the nature of the activity and the parties relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury.... (Knight v. Jewett (1992) 3 Cal.4th 296, 314-315.) The critical issue is whether the particular injury risk is inherent in the recreational activity. If it is, the defendant owes no duty to protect the plaintiff from that risk because the plaintiff assumed the risk by engaging in the activity. For example, a ski resort owes no duty to protect a skier from the injury risk presented by moguls on a ski run because that risk is inherent in the sport of skiing. (Id. at pp. 315316.) Express assumption of the risk, however, applies where the plaintiff agrees to assume a known risk and consents in advance to relieve the defendant of an obligation of conduct toward the plaintiff. (Paralift, supra, 23 Cal.App.4th at p. 755.) The issue is not whether the particular risk of injury is inherent in the recreational activity to which the release applies, but rather the scope of the release. (Benedek, supra, 104 Cal.App.4th at p. 1357.) The relevant inquiry in a health club membership release context is not whether the injury was reasonably related to the purpose of using fitness equipment, but whether it was reasonably related to the release signed. (Id. at p. 1361.)

D. RELEASES SANDWICHED BETWEEN OTHER CLAUSES OF THE MEMBERSHIP AGREEMENT: In Leon v. Family Fitness Center (#107), Inc. (1998) 61 Cal.App.4th 1227 (Leon), the Court of Appeal held a health club s release did not bar the plaintiff s claims because the risk that caused the plaintiff s injuries a sauna bench collapsing as the plaintiff lay on it was not a risk the plaintiff contemplated when he signed the release. (Id. at pp. 1234-1235.) As the Benedek court explained, Leon never suggested a release could not exculpate a health club from all personal injury liability. Rather, Leon merely held the language of the release at issue did not absolve the health club from liability for the collapsing bench. (Benedek, supra, 104 Cal.App.4th at pp. 1359-1360.) The release in Leon stated the health club shall not be liable for any personal injury claim resulting from or related to [the plaintiff s] use of the facilities or participation in any sport, exercise or activity within or without the club premises.... (Leon, supra, 61 Cal.App.4th at p. 1231.) The Court of Appeal found the release ambiguous because it was sandwiched between two clauses that referred only to the risks associated with an exercise or sports program, but failed to state the release was intended to insulate the health club from premises liability. (Id. at p. 1235.) The Leon court construed the release against the health club because of the ambiguity and limited the scope of the release to participation in a sport or exercise: Here, [the health club s] negligence was not reasonably related to the object or purpose for which the release was given, that is, as stated, injuries resulting from participating in sports or exercise rather than from merely reclining on the facility s furniture. [Citation.] The objective purpose of the release [the plaintiff] signed was to allow him to engage in fitness activities within the [health club s] facilities. However, it was not this type of activity which led to his injury. (Ibid.) Tellingly, the Leon court explained that an individual signing the release at issue could be deemed to have waived any hazard known to relate to the use of the health club facilities including injuries due to malfunctioning exercise or sports equipment.... (Leon, supra, 61 Cal.App.4th at p. 1234.) E. RELEASE DOES NOT BAR ACTION SEEKING DAMAGES FOR VIOLATION OF THE LAW: Member's action against fitness club for injury sustained when he slipped and fell on club's pool deck, was not barred by exculpatory clause in membership agreement, where he alleged that club violated comprehensive statutes regulating swimming pools and that the violation of law was the cause of his slip and fall; as such, release fell squarely within the explicit statutory prohibition against contractual exculpation for a violation of law and was invalid. West's Ann.Cal.Civ.Code 1668; West's Ann.Cal.Health & Safety Code 116040, 116043. Capri v. L.A. Fitness Intern., LLC (2006) 136 Cal.App.4th 1078.

Appellant alleged that respondent violated sections 116040 and 116043 of this article, and that this violation of law was the cause of his slip and fall. As such, it falls squarely within the explicit prohibition in section 1668 against contractual exculpation for a violation of law and is invalid. The trial court erred in finding this cause of action was barred by the release and waiver. The court finds support for this conclusion in Hanna v. Lederman (1963) 223 Cal.App.2d 786. In that case, tenants suffered property damage after sprinklers flooded their leased premises. If the landlord had installed the type of sprinklers required by the municipal code, an alarm would have sounded and reduced the time the property was subject to unsupervised water flow. The tenants sued the landlord and the court held that section 1668 invalidated an exculpatory lease provision: Since the claim for damages because of negligence... was predicated upon the alleged violation of section 94.30312 of the Municipal Code, the exculpatory provision could not be a defense to that cause of action if the evidence showed such violation to be a proximate cause of the tenant's loss. ( Id. at p. 792, 36 Cal.Rptr. 150; see also Halliday v. Greene (1966) 244 Cal.App.2d 482, 488). Capri v. L.A. Fitness Intern., LLC (2006) 136 Cal.App.4th 1078, 1085-1086. F. NO RELEASE FOR GROSS NEGLIGENCE : California cases have long held that liability for ordinary negligence may be released; however, gross negligence has been distinguished no published California case has upheld... an agreement purporting to release liability for future gross negligence. (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747 at pp. 758, 777). Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072, 1081. Gross negligence is pleaded by alleging the traditional elements of negligence: duty, breach, causation, and damages. ( Jones v. Wells Fargo Bank (2003) 112 Cal.App. 4th 1527, 1541.) However, to set forth a claim for gross negligence the plaintiff must allege extreme conduct on the part of the defendant. ( Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1185 1186.) The conduct alleged must rise to the level of either a want of even scant care ' or an extreme departure from the ordinary standard of conduct. ' [Citations.] ( Santa Barbara, supra, 41 Cal.4th at p. 754). Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072, 1082 [Triable issue of material fact existed as to whether motocross track operator's failure to post more than one caution flagger at a track with more than one platform for flaggers was an extremely egregious error, thus precluding summary judgment for operator on motorcycle rider's gross negligence claim]. CONCLUSION: California courts repeatedly have enforced releases involving claims against health clubs when the release agreement s clear language covers the injury-producing event and the release is addressed to claims of ordinary negligence. However, each case must be analyzed as to the specific language of the release, the placement of the release and waiver, the specific activity or conduct being released and whether or not the release and waiver are clear and unambiguous.

Further, it is imperative to examine the language of the release and waiver in association with the activity or conduct alleged and determine whether or not the release is invalid as contrary to public policy or one seeking a release of a violation of law.