Wife signed release, husband signed addendum to release and was held to the exculpatory clause in the release

Language of addendum was sufficient to bind husband to contract – but a risky legal move.

Hembree v. Johnson et al., 224 Ga. App. 680; 482 S.E.2d 407; 1997 Ga. App. LEXIS 182; 97 Fulton County D. Rep. 622

Plaintiff: Terrell L. Hembree

Defendant: Gordon Johnson and James Haddle d/b/a Douglasville Health & Athletic Club

Plaintiff Claims: negligence

Defendant Defenses: Release

Holding: for the defendants

The wife of the plaintiff joined the defendant Douglasville Health & Athletic Club. When she joined she signed the Membership Agreement that was referenced by an Agreement Number (13217). When she completed the agreement. She listed her husband, the plaintiff as a family member. The membership agreement on the front referred to rules and conditions that the signor agreed to that were listed on the back. The rules and conditions on the back included exculpatory (release) language.

Several months after his wife joined, the plaintiff joined the health club. He signed a Membership Addendum which stated, “I herewith modify my original membership agreement No. 13217 dated 4-14-92 as stated herein.”

The plaintiff allegedly slipped and fell while playing racquetball injuring his knee. The defendants filed a motion for summary judgment based upon the release signed by the spouse of the plaintiff.

Summary of the case

The plaintiff argued the dismissal of his case was improper because there was the existence of a material issue of a disputed fact. That fact was whether he assented to the release when he joined the defendant club.

Under Georgia law the construction of a written contract is a question of law, which can be decided by a court unless an ambiguity exists in the agreement.

Simply put, when the plaintiff signed the Membership Addendum, he assented to all the terms contained in the original agreement signed by his wife.

Even better the court stated, “It was incumbent upon Hembree [plaintiff] to read the contract and apprise himself of the terms to which he assented.”

Another issue raised by the plaintiff was the release violated the Georgia Fair Business Practices Act (O.C.G.A. § 10-1-393.2). The plaintiff failed to preserve the issue for appeal; however, the court did review the issue.

A health club membership does not violate public policy or violate the Georgia Fair Business Practices Act.

A contracting party may waive or renounce that which the law has established in his favor, provided doing so does not injure others or affect the public interest. O.C.G.A. § 1-3-7. It is well settled that public policy does not prohibit the inclusion of an exculpatory clause, like the one at issue here, in a health club membership.

So Now What?

Normally, a court looks at a release or waiver as a personal contract with a third party. No one can sign away the right to sue of another unless they are legally allowed to do so through a Power of Attorney or as a guardian.

In this case, the court looked at the relationship between the person who signed the original agreement and the person signing the addendum. The addendum specifically referred to the original agreement by a number.

Do not ever rely on this case to have a non-signor on a release held to a release. Always get a signature. In this case, it would have only taken a few more minutes to hand the plaintiff a release and have him read and sign the document.

James H. “Jim” Moss

Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, and outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers, avalanche beacon manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us

Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management

Outdoor Recreation Insurance, Risk Management, and Law

and Law.

To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.

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