New Jersey holds that if you signed the release, you are held to its terms even if you cannot read English.

There was a ton of issues that in many states might have voided the release, 8 pt font, missing initial and the plaintiff not understanding English were just a few of them.

Citation: Kang v. LA Fitness, 2016 U.S. Dist. LEXIS 179934, 2016 WL 7476354

State: New Jersey, United States District Court, D. New Jersey

Plaintiff: Soon Ja Kang

Defendant: LA Fitness, LA Fitness of South Plainfield, John Does 1-5, et al.

Plaintiff Claims: Negligence

Defendant Defenses: Release

Holding: for the Defendant

Year: 2016

Summary

If you sign the membership agreement containing a release in New Jersey, you are held to the terms of the release, even if you can’t speak or read English. Plaintiff could not read or speak English, signed LA Fitness membership agreement and could not sue after she was injured on a piece of equipment.

Facts

Fitness International, LLC d/b/a LA Fitness (incorrectly designated as LA Fitness of South Plainfield) (“LA Fitness”) operates a fitness facility located in Piscataway, NJ. See Final Pretrial Order Stipulation of Facts. On December 30, 2013, plaintiff Soon Ja Kang went to LA Fitness with her husband to sign up for membership.

On December 31, 2013, Kang was injured while working out on a chin/dip assist pull up machine at LA Fitness’s Piscataway location. She filed the instant action on September 29, 2014 in state court, and LA Fitness filed a notice of removal in this Court on November 14, 2014 on the basis of diversity jurisdiction. The complaint alleges that Kang was injured as a result of negligence on the part of LA Fitness. Id. Prior to completion of expert discovery, LA Fitness moved for summary judgment on the issue of whether the waiver and liability provision bars the instant action.

Analysis: making sense of the law based on these facts.

The court started its analysis by looking at the release and the injury the plaintiff suffered. The court found the injury fell within the confines of the release.

As her negligence claim for an injury allegedly sustained while using a piece of workout equipment at an LA Fitness facility clearly falls within the ambit of the liability waiver, the issue becomes whether the waiver itself is enforceable against Kang on the facts of this case.

The issue then became whether or not the release applied to someone who did not speak or read English. Releases in New Jersey are enforceable if:

…(1) it does not adversely affect the public interest; (2) the exculpated party is not under a legal duty to perform; (3) it does not involve a public utility or common carrier; or (4) the contract does not grow out of unequal bargaining power or is otherwise unconscionable.

The court throughout the third factor because the defendant was not a public utility or common carrier. The court then reviewed whether the exculpatory clause affected the public interest. The court found it did not.

[W]e are satisfied that, at least with respect to equipment being used at the club in the course of an exercise class or other athletic activity, the exculpatory agreement’s disclaimer of liability for ordinary negligence is reasonable and not offensive to public policy.

There seemed to be somewhat of a limit to the release based on the courts next comment about the reach of the release.

The Court agrees with the analysis in Stelluti and finds that the exculpatory clause here does not adversely affect the public interest, at least to the extent that it purports to exculpate LA Fitness with respect to acts or omissions amounting to ordinary negligence.

The plaintiff then argued the release violates the New Jersey Plain Language Act. N.J. Stat. Ann. § 56:12-2. The act requires a consumer contract to be “written in a simple, clear, understandable and easily readable way.”

The plaintiff then argued the act was violated because the print size (font) was 8 points, and the margins of the paper were .5″ “reflecting the intentions of the drafter to squeeze in additional words.”

Reviewing examples of bad language found in the act, the court determined the release did not violate the Plain Language Act.

Reviewing Kang’s membership agreement in light of the above guidelines, the Court finds that the waiver provision does not violate the New Jersey Plain Language Act. The waiver provision does not contain any cross references, nor does it contain any double negatives or exceptions to exceptions. It does not contain words with obsolete meanings, nor is it clouded by the use of Old English, Middle English, Latin or French phrases. And Kang does not argue-nor does the Court find-that the sentences of the waiver provision are set forth in a confusing or illogical order.

The next issue was there any legal duty to perform on the part of the defendant part 2 of the four requirements.

There were no state statutes or regulation’s setting standards for fitness facilities. The plaintiff argued that National Associations had created standards that applied to fitness facilities. However, the court could not find that to be valid. “However, there is no indication that these national standards apply with the force of law in New Jersey so as to constitute public policy of the state.”

The final argument was the release was unconscionable because of unequal bargaining power between the plaintiff and defendant.

Kang argues that the waiver was invalid for lack of mutual assent, based upon the following assertions: (1) Neither Kang nor her husband speaks English; (2) LA Fitness knew as much, as the Kangs’ daughter was present to translate; (3) an LA Fitness employee explained the contract duration and payment terms to the Kangs’ daughter, but did not explain the liability waiver to her; (4) only Kang’s husband was asked to initial next to the waiver provision in his membership agreement, but no one explained to him what he was initialing; and (5) no employee went over the waiver provision with Kang or her daughter.

The court did not agree with any of the plaintiffs’ arguments. And stated in clear language that the plaintiff’s inability to speak English did not stop her from becoming bound to the terms of the release.

As an initial matter, Kang’s inability to speak English does not bar her from becoming contractually bound. Notwithstanding the fact that her daughter was present to translate, New Jersey courts have unequivocally held that in the absence of fraud, one who signs an agreement is conclusively presumed to understand and assent to its terms and legal effect:

The court went on to explain that if you sign the agreement, you are bound to the terms of the agreement, whether or not you understood the agreement.

In the absence of fraud or imposition, when one fails to read a contract before signing it, the provisions are nevertheless binding, and the party is conclusively presumed to understand and assent to its terms and legal effect . . . . Even illiterate individuals have been held bound by a signed contract in the absence of misrepresentation. One who signs a document in those circumstances should know its contents or have it read (or otherwise have the contents made known) to him or her.

The final issue was the missing initial in the document. Because she had signed the agreement, the signature at the bottom of the agreement was all that was needed for the release to be valid.

Finally, the Court is not aware of, nor has Kang cited, any requirement that she must have initialed the waiver provision for that clause to be enforceable against her. While she did not initial the waiver provision, she did sign the membership agreement containing it. In the absence of fraud, that is enough to bind her to its terms.

The plaintiff then argued the release and fitness contract containing the release were unconscionable. The court summed up the plaintiffs’ unconscionable argument as an amalgamation of all of her other arguments. The court found the exculpatory clause did not offend public policy, and the other arguments for unconscionability did not change the release validity.

Kang was a layperson without any specialized knowledge of exculpatory contracts, and the Court gives her the benefit of the inference that LA Fitness did not explain the legal effect of the waiver provision to her. However, also like the defendant in Stelluti, Kang was not under any undue pressure to execute the agreement and she could have sought advice before signing. Indeed, her daughter was present to translate. As noted above, the fact that Kang does not speak English does have any legal effect on the contract’s enforceability. Thus, in accordance with Stelluti, the Court finds that although the LA Fitness membership agreement may have been offered on a “take-it-or-leave-it” basis, it is not void on the basis of unconscionability.

The motion for summary judgment of the defendant was granted the plaintiff’s claims dismissed.

So Now What?

New Jersey is another state that upholds the idea that if you sign a release, you are bound to the terms of the release no matter if you could understand the release, the type was too small; you did not read or speak English, or you just want out of the release.

At the same time, this list from my studies has only two states on it, California being the other state. See Balloon ride in California is not a common carrier, and the release signed by the plaintiff bars the plaintiff’s claims even though she did not read or speak English.

What do you think? Leave a comment.

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Kang v. LA Fitness, 2016 U.S. Dist. LEXIS 179934, 2016 WL 7476354

Kang v. LA Fitness, 2016 U.S. Dist. LEXIS 179934, 2016 WL 7476354

Soon Ja Kang Plaintiff,

LA Fitness, LA Fitness of South Plainfield, John Does 1-5, et al., Defendants.

Civil No. 2:14-cv-07147 (KSH) (CLW)

United States District Court, D. New Jersey

December 29, 2016

NOT FOR PUBLICATION

OPINION

Katharine S. Hayden, U.S.D.J.

Before the Court is defendants’ motion for summary judgment as to the validity and enforceability of an exculpatory clause in a fitness center membership agreement with plaintiff. For the reasons set forth below, the Court finds the liability waiver to be valid and enforceable and defendants’ motion is granted.

I. Background

Fitness International, LLC d/b/a LA Fitness (incorrectly designated as LA Fitness of South Plainfield) (“LA Fitness”) operates a fitness facility located in Piscataway, NJ. See Final Pretrial Order Stipulation of Facts (“SOF”) (D.E. 19), at ¶ 1. On December 30, 2013, plaintiff Soon Ja Kang went to LA Fitness with her husband to sign up for membership. Id. at ¶ 2. The membership agreement she signed states in relevant part:

IMPORTANT: RELEASE AND WAIVER OF LIABILITY AND INDEMNITY. You hereby acknowledge and agree that use by Member and/or Member’s minor children of LA 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 LA 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 LA 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 LA Fitness or otherwise, to the fullest extent permitted by law, while Member or Member’s minor children are in, upon, or about LA Fitness’ premises or using any LA Fitness facilities, services or equipment. Member also hereby agrees to indemnify LA Fitness from any loss, liability, damage or cost LA Fitness may incur due to the presence of Member or Member’s children in, upon or about the LA Fitness premises or in any way observing or using any facilities or equipment of LA 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 Member’s health. Such risk of injury includes (but is not limited to): injuries arising from use by Member or others of exercise 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 New Jersey 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 has been made.

LA Fitness Moving Br., Exh. E (D.E. 22-7).

Kang and her husband do not read or understand English, but their daughter was present to translate for them when they signed up. See SOF, at ¶¶ 4-5. Kang signed a membership agreement. She did not initial next to the waiver and liability provision in her membership agreement; however, her husband was asked to initial next to the same provision in his membership agreement, and he did so. Id. at ¶ 6.

On December 31, 2013, Kang was injured while working out on a chin/dip assist pull up machine at LA Fitness’s Piscataway location. See SOF, at ¶¶ 2, 7. She filed the instant action on September 29, 2014 in state court, and LA Fitness filed a notice of removal in this Court on November 14, 2014 on the basis of diversity jurisdiction (D.E. 1). The complaint alleges that Kang was injured as a result of negligence on the part of LA Fitness. Id. Prior to completion of expert discovery, LA Fitness moved for summary judgment on the issue of whether the waiver and liability provision bars the instant action. The motion was fully briefed. (D.E. 22, 25, 26).

The Court makes its decision on the paper.

II. Discussion

A. Standard

Summary judgment is warranted where the moving party demonstrates that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a), (c). The parties have conducted discovery on the circumstances surrounding the formation of Kang’s membership agreement and, as set forth in the analysis below, all facts relevant to the enforceability of the waiver provision are essentially undisputed as set forth in the Final Pretrial Order Stipulation of Facts (D.E. 19). In determining whether the waiver provision is enforceable as a matter of law, the Court “view[s] the evidence in the light most favorable to [Kang] and draw[s] all justifiable, reasonable inferences in [her] favor.” Sgro v. Bloomberg L.P., 331 F.Appx. 932, 937 (3d Cir. 2009).

B. Analysis

Pursuant to the release and waiver of liability provision in her membership agreement, Kang released and held LA Fitness harmless for all injuries she might suffer “whether caused by the active or passive negligence of LA Fitness or otherwise, ” while she was “in, upon, or about LA Fitness’ premises or using any LA Fitness facilities, services or equipment.” LA Fitness Moving Br., Exh. E (D.E. 22-7). As her negligence claim for an injury allegedly sustained while using a piece of workout equipment at an LA Fitness facility clearly falls within the ambit of the liability waiver, the issue becomes whether the waiver itself is enforceable against Kang on the facts of this case.

In Stelluti v. Casapenn Enterprises, LLC, 408 N.J.Super. 435, 454 (App. Div. 2009), aff’d, 203 N.J. 286 (2010), the New Jersey Appellate Division addressed the enforceability of exculpatory releases in fitness center membership agreements:

Such a release is enforceable only if: (1) it does not adversely affect the public interest; (2) the exculpated party is not under a legal duty to perform; (3) it does not involve a public utility or common carrier; or (4) the contract does not grow out of unequal bargaining power or is otherwise unconscionable.

Id. The third factor is inapplicable here, because LA Fitness is not a public utility or common carrier. See Kang Opp. Br., at p. 6. The Court analyzes the remaining Stelluti factors in turn.

1. Does the Exculpatory Clause Adversely Affect the Public Interest?

LA Fitness argues that the exculpatory clause in this case does not adversely affect the public interest because it is “a facility that encourages New Jersey’s public policy promoting physical fitness.” LA Fitness Moving Br., at p. 6. Noting the important policy objective of promoting public health, the Stelutti court held:

[W]e are satisfied that, at least with respect to equipment being used at the club in the course of an exercise class or other athletic activity, the exculpatory agreement’s disclaimer of liability for ordinary negligence is reasonable and not offensive to public policy.

Stelluti, 408 N.J.Super. at 459. The Court agrees with the analysis in Stelluti and finds that the exculpatory clause here does not adversely affect the public interest, at least to the extent that it purports to exculpate LA Fitness with respect to acts or omissions amounting to ordinary negligence.

Kang argues that public policy promoting physical fitness “cannot counteract the other public policy reasons that are in place to protect against improper liability waivers.” Kang Opp. Br., at p. 7. To that end, she argues that the release in this case violates the New Jersey Plain Language Act, which states that “[a] consumer contract entered into on or after the effective date of this amendatory and supplementary act shall be written in a simple, clear, understandable and easily readable way.” N.J. Stat. Ann. § 56:12-2. Specifically, Kang argues that the small font size and margins in the contract are such that “[s]omeone who can read and understand English would be substantially confused by this agreement[.]” Kang Opp. Br., at p. 8.

To determine whether the waiver provision violates the Plain Language Act, the Court turns to the plain language of the act itself. Section 56:12-10 provides:

To insure that a consumer contract shall be simple, clear, understandable and easily readable, the following are examples of guidelines that a court . . . may consider in determining whether a consumer contract as a whole complies with this act:

(1) Cross references that are confusing;

(2) Sentences that are of greater length than necessary;

(3) Sentences that contain double negatives and exceptions to exceptions;

(4) Sentences and sections that are in a confusing or illogical order;

(5) The use of words with obsolete meanings or words that differ in their legal meaning from their common ordinary meaning;

(6) Frequent use of Old English and Middle English words and Latin and French phrases.

N.J. Stat. Ann. § 56:12-10. Section 56:12-10 further provides:

The following are examples of guidelines that a court . . . may consider in determining whether the consumer contract as a whole complies with this act:

(1) Sections shall be logically divided and captioned;

(2) A table of contents or alphabetical index shall be used for all contracts with more than 3, 000 words;

(3) Conditions and exceptions to the main promise of the agreement shall be given equal prominence with the main promise, and shall be in at least 10 point type.

Id. A Court has discretion as to how much consideration should be given to the above-listed statutory guidelines in finding a violation of the act. See Boddy v. Cigna Prop. & Cas. Companies, 334 N.J.Super. 649, 655 (App. Div. 2000).

Reviewing Kang’s membership agreement in light of the above guidelines, the Court finds that the waiver provision does not violate the New Jersey Plain Language Act. The waiver provision does not contain any cross references, nor does it contain any double negatives or exceptions to exceptions. It does not contain words with obsolete meanings, nor is it clouded by the use of Old English, Middle English, Latin or French phrases. And Kang does not argue-nor does the Court find-that the sentences of the waiver provision are set forth in a confusing or illogical order.

Instead, Kang argues that the waiver provision violates the Plain Language Act because “[t]he size of the font (print) is about size 8, whereas the standard size used in everyday documents is size 12[, ]” and because “[t]he margins on the sides of the pages are about 0.5 inch . . . reflecting the intentions of the drafter to squeeze in additional words.” Kang Opp. Br., at p. 8. However, applying the above guidelines, the Court does not find that the waiver provision in this case is any less prominent that the remainder of the agreement. See N.J. Stat. Ann. § 56:12-10b(3). To the contrary, the waiver and liability provision is the only clause in the membership agreement preceded by a title in all caps (“IMPORTANT: RELEASE AND WAIVER OF LIABILITY AND INDEMNITY”), and it is the only clause that is fully enclosed by a border, creating a visual separation between the waiver and the rest of the agreement.

The Court finds that the waiver provision in this case does not offend public policy under Stelluti and does not otherwise violate the New Jersey Plain Language Act.

2. Is LA Fitness Under a Legal Duty To Perform?

LA Fitness argues that its relationship with Kang does not create any duties prescribed by statute or regulation. See LA Fitness Moving Br., at pp. 6-8. New Jersey courts have found liability waivers to be invalid as against public policy where they conflict with legislatively imposed duties. For example, in Hy-Grade Oil Co. v. New Jersey Bank, 138 N.J.Super. 112, 118 (App. Div. 1975), the court found it against public policy for a bank to exculpate itself from liability or responsibility for negligence in the performance of its function as a night depository service, in part due to the “extensive statutory regulations covering every phase of the banking business[.]” Id. at 118. Similarly, in McCarthy v. Nat’l Ass’n for Stock Car Auto Racing, Inc., 48 N.J. 539, 543 (1967), the New Jersey Supreme Court held a liability waiver invalid as against public policy because it purported to contract away safety requirements prescribed by statute dealing with motor vehicle racing. See id. at 543 (“[t]he prescribed safety requirements may not be contracted away, for if they could be the salient protective purposes of the legislation would largely be nullified”).

Kang argues that “although there are no statutes specific to fitness centers, there are several national associations that have established standards that apply to the fitness industry[.]” Kang Opp. Br., at pp. 8-9. However, there is no indication that these national standards apply with the force of law in New Jersey so as to constitute public policy of the state. Kang further argues that the Stelluti court acknowledged the well-established duties of care that New Jersey business owners owe to patrons that enter their premises. See Kang Opp. Br., at p. 8. However, as noted above in Part B.1. supra, Stelluti expressly held that fitness center liability waivers such as the one at issue here do not violate public policy at least to the extent that they exculpate for ordinary negligence. Stelluti, 408 N.J.Super. at 459. The Court finds that LA Fitness is not under any legal duty that precludes its reliance on the liability waiver in this case.

3. Does the Contract Grow Out of Unequal Bargaining Power or is it Otherwise Unconscionable?

With respect to the final Stelluti factor, Kang argues that the waiver: (1) was not the product of mutual assent; and (2) is unconscionable as a term in a contract of adhesion. See Kang Opp. Br., at pp. 10-14. The Court addresses both arguments in turn.

a. Mutual Assent

Kang argues that the waiver was invalid for lack of mutual assent, based upon the following assertions: (1) Neither Kang nor her husband speaks English; (2) LA Fitness knew as much, as the Kangs’ daughter was present to translate; (3) an LA Fitness employee explained the contract duration and payment terms to the Kangs’ daughter, but did not explain the liability waiver to her; (4) only Kang’s husband was asked to initial next to the waiver provision in his membership agreement, but no one explained to him what he was initialing; and (5) no employee went over the waiver provision with Kang or her daughter. See Kang Opp. Br., at pp. 10-11. Accordingly, Kang argues that she did not “clearly, unequivocally, and decisively surrender[ ] her rights” as is required for a valid waiver. Id. at p. 11.

The Court finds these arguments unavailing. As an initial matter, Kang’s inability to speak English does not bar her from becoming contractually bound. Notwithstanding the fact that her daughter was present to translate, New Jersey courts have unequivocally held that in the absence of fraud, one who signs an agreement is conclusively presumed to understand and assent to its terms and legal effect:

In the absence of fraud or imposition, when one fails to read a contract before signing it, the provisions are nevertheless binding, and the party is conclusively presumed to understand and assent to its terms and legal effect . . . . Even illiterate individuals have been held bound by a signed contract in the absence of misrepresentation. One who signs a document in those circumstances should know its contents or have it read (or otherwise have the contents made known) to him or her.

Statewide Realty Co. v. Fid. Mgmt. & Research Co., 259 N.J.Super. 59, 73 (Law. Div. 1992) (internal citations and quotations omitted); see also Herrera v. Twp. of S. Orange Vill., 270 N.J.Super. 417, 423, 637 (App. Div. 1993) (enforcing release agreement in the absence of fraud, notwithstanding testimony by plaintiff that she did not understand the release because she could not read English).

Under the New Jersey case law cited above, absent allegations of fraud, deceit, or misrepresentation which Kang does not make here, she is conclusively presumed to have understood and assented to the membership agreement’s terms-including the waiver-and legal effect. See Stelluti v. Casapenn Enterprises, LLC, 203 N.J. 286, 305 (2010) (“Although Stelluti argues that she did not know what she was signing, she does not claim that she signed the waiver form as the result of fraud, deceit, or misrepresentation. Therefore, the trial court was well within reason to presume that she understood the terms of the agreement . . . and the finding to that effect is unassailable.”)

Nor does the fact that LA Fitness may not have explained the waiver to her or her daughter preclude enforcement. See Stelluti v. Casapenn Enterprises, LLC, 203 N.J. 286, 301- 02 (2010) (enforcing exculpatory clause while giving plaintiff benefit of inference that “Powerhouse may not have explained to Stelluti the legal effect of the contract that released Powerhouse from liability”).

Finally, the Court is not aware of, nor has Kang cited, any requirement that she must have initialed the waiver provision for that clause to be enforceable against her. While she did not initial the waiver provision, she did sign the membership agreement containing it. In the absence of fraud, that is enough to bind her to its terms. See Statewide, 259 N.J.Super. at 73.

b. Unconscionability

Kang also argues that even if the waiver is found to be enforceable, the Court should invalidate it as a contract of adhesion. “[T]he essential nature of a contract of adhesion is that it is presented on a take-it-or-leave-it basis, commonly in a standardized printed form, without the opportunity for the ‘adhering’ party to negotiate except perhaps on a few particulars.” Rudbart v. N. Jersey Dist. Water Supply Comm’n, 127 N.J. 344, 353, 605 A.2d 681, 685 (1992). Kang’s unconscionability argument is essentially an amalgamation of all of her arguments summarized above: that as someone who does not speak English she lacked the sophistication to understand the terms to which she was agreeing, LA Fitness knew that she was in no position to understand those terms, she did not initial next to the waiver provision, the waiver is one-sided and printed on a standard form agreement, and she was not in a position to negotiate the terms of the agreement. Kang Opp. Br., at pp. 12-14.

Notably, not all contracts of adhesion are unenforceable. In Stelluti, the New Jersey Supreme Court held:

Here, Powerhouse’s agreement was a standard pre-printed form presented to Stelluti and other prospective members on a typical ‘take-it-or-leave-it basis.’ No doubt, this agreement was one of adhesion. As for the relative bargaining positions of the parties, . . . we assume that Stelluti was a layperson without any specialized knowledge about contracts generally or exculpatory ones specifically. Giving her the benefit of all inferences from the record, including that Powerhouse may not have explained to Stelluti the legal effect of the contract that released Powerhouse from liability, we nevertheless do not regard her in a classic ‘position of unequal bargaining power’ such that the contract must be voided. As the Appellate Division decision noted, Stelluti could have taken her business to another fitness club, could have found another means of exercise aside from joining a private gym, or could have thought about it and even sought advice before signing up and using the facility’s equipment. No time limitation was imposed on her ability to review and consider whether to sign the agreement. In sum, although the terms of the agreement were presented ‘as is’ to Stelluti, rendering this a fairly typical adhesion contract in its procedural aspects, we hold that the agreement was not void based on any notion of procedural unconscionability.

Stelluti v. Casapenn Enterprises, LLC, 203 N.J. 286, 301-02 (2010).

Like the defendant in Stelluti, Kang was a layperson without any specialized knowledge of exculpatory contracts, and the Court gives her the benefit of the inference that LA Fitness did not explain the legal effect of the waiver provision to her. However, also like the defendant in Stelluti, Kang was not under any undue pressure to execute the agreement and she could have sought advice before signing. Indeed, her daughter was present to translate. As noted above, the fact that Kang does not speak English does have any legal effect on the contract’s enforceability. Thus, in accordance with Stelluti, the Court finds that although the LA Fitness membership agreement may have been offered on a “take-it-or-leave-it” basis, it is not void on the basis of unconscionability.

Because the exculpatory clause does not offend public policy, the Court finds it to be valid and enforceable. Accordingly, LA Fitness’s motion for summary judgment is granted.

III. Conclusion

For the foregoing reasons, defendants’ motion for summary judgment is granted, and the clerk of the court is direct to close this case. An accompanying Order will be filed.


Kang v. LA Fitness, 2016 U.S. Dist. LEXIS 179934, 2016 WL 7476354

Kang v. LA Fitness, 2016 U.S. Dist. LEXIS 179934, 2016 WL 7476354

Soon Ja Kang Plaintiff,

LA Fitness, LA Fitness of South Plainfield, John Does 1-5, et al., Defendants.

Civil No. 2:14-cv-07147 (KSH) (CLW)

United States District Court, D. New Jersey

December 29, 2016

NOT FOR PUBLICATION

OPINION

Katharine S. Hayden, U.S.D.J.

Before the Court is defendants’ motion for summary judgment as to the validity and enforceability of an exculpatory clause in a fitness center membership agreement with plaintiff. For the reasons set forth below, the Court finds the liability waiver to be valid and enforceable and defendants’ motion is granted.

I. Background

Fitness International, LLC d/b/a LA Fitness (incorrectly designated as LA Fitness of South Plainfield) (“LA Fitness”) operates a fitness facility located in Piscataway, NJ. See Final Pretrial Order Stipulation of Facts (“SOF”) (D.E. 19), at ¶ 1. On December 30, 2013, plaintiff Soon Ja Kang went to LA Fitness with her husband to sign up for membership. Id. at ¶ 2. The membership agreement she signed states in relevant part:

IMPORTANT: RELEASE AND WAIVER OF LIABILITY AND INDEMNITY. You hereby acknowledge and agree that use by Member and/or Member’s minor children of LA 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 LA 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 LA 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 LA Fitness or otherwise, to the fullest extent permitted by law, while Member or Member’s minor children are in, upon, or about LA Fitness’ premises or using any LA Fitness facilities, services or equipment. Member also hereby agrees to indemnify LA Fitness from any loss, liability, damage or cost LA Fitness may incur due to the presence of Member or Member’s children in, upon or about the LA Fitness premises or in any way observing or using any facilities or equipment of LA 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 Member’s health. Such risk of injury includes (but is not limited to): injuries arising from use by Member or others of exercise 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 New Jersey 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 has been made.

LA Fitness Moving Br., Exh. E (D.E. 22-7).

Kang and her husband do not read or understand English, but their daughter was present to translate for them when they signed up. See SOF, at ¶¶ 4-5. Kang signed a membership agreement. She did not initial next to the waiver and liability provision in her membership agreement; however, her husband was asked to initial next to the same provision in his membership agreement, and he did so. Id. at ¶ 6.

On December 31, 2013, Kang was injured while working out on a chin/dip assist pull up machine at LA Fitness’s Piscataway location. See SOF, at ¶¶ 2, 7. She filed the instant action on September 29, 2014 in state court, and LA Fitness filed a notice of removal in this Court on November 14, 2014 on the basis of diversity jurisdiction (D.E. 1). The complaint alleges that Kang was injured as a result of negligence on the part of LA Fitness. Id. Prior to completion of expert discovery, LA Fitness moved for summary judgment on the issue of whether the waiver and liability provision bars the instant action. The motion was fully briefed. (D.E. 22, 25, 26).

The Court makes its decision on the paper.

II. Discussion

A. Standard

Summary judgment is warranted where the moving party demonstrates that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a), (c). The parties have conducted discovery on the circumstances surrounding the formation of Kang’s membership agreement and, as set forth in the analysis below, all facts relevant to the enforceability of the waiver provision are essentially undisputed as set forth in the Final Pretrial Order Stipulation of Facts (D.E. 19). In determining whether the waiver provision is enforceable as a matter of law, the Court “view[s] the evidence in the light most favorable to [Kang] and draw[s] all justifiable, reasonable inferences in [her] favor.” Sgro v. Bloomberg L.P., 331 F.Appx. 932, 937 (3d Cir. 2009).

B. Analysis

Pursuant to the release and waiver of liability provision in her membership agreement, Kang released and held LA Fitness harmless for all injuries she might suffer “whether caused by the active or passive negligence of LA Fitness or otherwise, ” while she was “in, upon, or about LA Fitness’ premises or using any LA Fitness facilities, services or equipment.” LA Fitness Moving Br., Exh. E (D.E. 22-7). As her negligence claim for an injury allegedly sustained while using a piece of workout equipment at an LA Fitness facility clearly falls within the ambit of the liability waiver, the issue becomes whether the waiver itself is enforceable against Kang on the facts of this case.

In Stelluti v. Casapenn Enterprises, LLC, 408 N.J.Super. 435, 454 (App. Div. 2009), aff’d, 203 N.J. 286 (2010), the New Jersey Appellate Division addressed the enforceability of exculpatory releases in fitness center membership agreements:

Such a release is enforceable only if: (1) it does not adversely affect the public interest; (2) the exculpated party is not under a legal duty to perform; (3) it does not involve a public utility or common carrier; or (4) the contract does not grow out of unequal bargaining power or is otherwise unconscionable.

Id. The third factor is inapplicable here, because LA Fitness is not a public utility or common carrier. See Kang Opp. Br., at p. 6. The Court analyzes the remaining Stelluti factors in turn.

1. Does the Exculpatory Clause Adversely Affect the Public Interest?

LA Fitness argues that the exculpatory clause in this case does not adversely affect the public interest because it is “a facility that encourages New Jersey’s public policy promoting physical fitness.” LA Fitness Moving Br., at p. 6. Noting the important policy objective of promoting public health, the Stelutti court held:

[W]e are satisfied that, at least with respect to equipment being used at the club in the course of an exercise class or other athletic activity, the exculpatory agreement’s disclaimer of liability for ordinary negligence is reasonable and not offensive to public policy.

Stelluti, 408 N.J.Super. at 459. The Court agrees with the analysis in Stelluti and finds that the exculpatory clause here does not adversely affect the public interest, at least to the extent that it purports to exculpate LA Fitness with respect to acts or omissions amounting to ordinary negligence.

Kang argues that public policy promoting physical fitness “cannot counteract the other public policy reasons that are in place to protect against improper liability waivers.” Kang Opp. Br., at p. 7. To that end, she argues that the release in this case violates the New Jersey Plain Language Act, which states that “[a] consumer contract entered into on or after the effective date of this amendatory and supplementary act shall be written in a simple, clear, understandable and easily readable way.” N.J. Stat. Ann. § 56:12-2. Specifically, Kang argues that the small font size and margins in the contract are such that “[s]omeone who can read and understand English would be substantially confused by this agreement[.]” Kang Opp. Br., at p. 8.

To determine whether the waiver provision violates the Plain Language Act, the Court turns to the plain language of the act itself. Section 56:12-10 provides:

To insure that a consumer contract shall be simple, clear, understandable and easily readable, the following are examples of guidelines that a court . . . may consider in determining whether a consumer contract as a whole complies with this act:

(1) Cross references that are confusing;

(2) Sentences that are of greater length than necessary;

(3) Sentences that contain double negatives and exceptions to exceptions;

(4) Sentences and sections that are in a confusing or illogical order;

(5) The use of words with obsolete meanings or words that differ in their legal meaning from their common ordinary meaning;

(6) Frequent use of Old English and Middle English words and Latin and French phrases.

N.J. Stat. Ann. § 56:12-10. Section 56:12-10 further provides:

The following are examples of guidelines that a court . . . may consider in determining whether the consumer contract as a whole complies with this act:

(1) Sections shall be logically divided and captioned;

(2) A table of contents or alphabetical index shall be used for all contracts with more than 3, 000 words;

(3) Conditions and exceptions to the main promise of the agreement shall be given equal prominence with the main promise, and shall be in at least 10 point type.

Id. A Court has discretion as to how much consideration should be given to the above-listed statutory guidelines in finding a violation of the act. See Boddy v. Cigna Prop. & Cas. Companies, 334 N.J.Super. 649, 655 (App. Div. 2000).

Reviewing Kang’s membership agreement in light of the above guidelines, the Court finds that the waiver provision does not violate the New Jersey Plain Language Act. The waiver provision does not contain any cross references, nor does it contain any double negatives or exceptions to exceptions. It does not contain words with obsolete meanings, nor is it clouded by the use of Old English, Middle English, Latin or French phrases. And Kang does not argue-nor does the Court find-that the sentences of the waiver provision are set forth in a confusing or illogical order.

Instead, Kang argues that the waiver provision violates the Plain Language Act because “[t]he size of the font (print) is about size 8, whereas the standard size used in everyday documents is size 12[, ]” and because “[t]he margins on the sides of the pages are about 0.5 inch . . . reflecting the intentions of the drafter to squeeze in additional words.” Kang Opp. Br., at p. 8. However, applying the above guidelines, the Court does not find that the waiver provision in this case is any less prominent that the remainder of the agreement. See N.J. Stat. Ann. § 56:12-10b(3). To the contrary, the waiver and liability provision is the only clause in the membership agreement preceded by a title in all caps (“IMPORTANT: RELEASE AND WAIVER OF LIABILITY AND INDEMNITY”), and it is the only clause that is fully enclosed by a border, creating a visual separation between the waiver and the rest of the agreement.

The Court finds that the waiver provision in this case does not offend public policy under Stelluti and does not otherwise violate the New Jersey Plain Language Act.

2. Is LA Fitness Under a Legal Duty To Perform?

LA Fitness argues that its relationship with Kang does not create any duties prescribed by statute or regulation. See LA Fitness Moving Br., at pp. 6-8. New Jersey courts have found liability waivers to be invalid as against public policy where they conflict with legislatively imposed duties. For example, in Hy-Grade Oil Co. v. New Jersey Bank, 138 N.J.Super. 112, 118 (App. Div. 1975), the court found it against public policy for a bank to exculpate itself from liability or responsibility for negligence in the performance of its function as a night depository service, in part due to the “extensive statutory regulations covering every phase of the banking business[.]” Id. at 118. Similarly, in McCarthy v. Nat’l Ass’n for Stock Car Auto Racing, Inc., 48 N.J. 539, 543 (1967), the New Jersey Supreme Court held a liability waiver invalid as against public policy because it purported to contract away safety requirements prescribed by statute dealing with motor vehicle racing. See id. at 543 (“[t]he prescribed safety requirements may not be contracted away, for if they could be the salient protective purposes of the legislation would largely be nullified”).

Kang argues that “although there are no statutes specific to fitness centers, there are several national associations that have established standards that apply to the fitness industry[.]” Kang Opp. Br., at pp. 8-9. However, there is no indication that these national standards apply with the force of law in New Jersey so as to constitute public policy of the state. Kang further argues that the Stelluti court acknowledged the well-established duties of care that New Jersey business owners owe to patrons that enter their premises. See Kang Opp. Br., at p. 8. However, as noted above in Part B.1. supra, Stelluti expressly held that fitness center liability waivers such as the one at issue here do not violate public policy at least to the extent that they exculpate for ordinary negligence. Stelluti, 408 N.J.Super. at 459. The Court finds that LA Fitness is not under any legal duty that precludes its reliance on the liability waiver in this case.

3. Does the Contract Grow Out of Unequal Bargaining Power or is it Otherwise Unconscionable?

With respect to the final Stelluti factor, Kang argues that the waiver: (1) was not the product of mutual assent; and (2) is unconscionable as a term in a contract of adhesion. See Kang Opp. Br., at pp. 10-14. The Court addresses both arguments in turn.

a. Mutual Assent

Kang argues that the waiver was invalid for lack of mutual assent, based upon the following assertions: (1) Neither Kang nor her husband speaks English; (2) LA Fitness knew as much, as the Kangs’ daughter was present to translate; (3) an LA Fitness employee explained the contract duration and payment terms to the Kangs’ daughter, but did not explain the liability waiver to her; (4) only Kang’s husband was asked to initial next to the waiver provision in his membership agreement, but no one explained to him what he was initialing; and (5) no employee went over the waiver provision with Kang or her daughter. See Kang Opp. Br., at pp. 10-11. Accordingly, Kang argues that she did not “clearly, unequivocally, and decisively surrender[ ] her rights” as is required for a valid waiver. Id. at p. 11.

The Court finds these arguments unavailing. As an initial matter, Kang’s inability to speak English does not bar her from becoming contractually bound. Notwithstanding the fact that her daughter was present to translate, New Jersey courts have unequivocally held that in the absence of fraud, one who signs an agreement is conclusively presumed to understand and assent to its terms and legal effect:

In the absence of fraud or imposition, when one fails to read a contract before signing it, the provisions are nevertheless binding, and the party is conclusively presumed to understand and assent to its terms and legal effect . . . . Even illiterate individuals have been held bound by a signed contract in the absence of misrepresentation. One who signs a document in those circumstances should know its contents or have it read (or otherwise have the contents made known) to him or her.

Statewide Realty Co. v. Fid. Mgmt. & Research Co., 259 N.J.Super. 59, 73 (Law. Div. 1992) (internal citations and quotations omitted); see also Herrera v. Twp. of S. Orange Vill., 270 N.J.Super. 417, 423, 637 (App. Div. 1993) (enforcing release agreement in the absence of fraud, notwithstanding testimony by plaintiff that she did not understand the release because she could not read English).

Under the New Jersey case law cited above, absent allegations of fraud, deceit, or misrepresentation which Kang does not make here, she is conclusively presumed to have understood and assented to the membership agreement’s terms-including the waiver-and legal effect. See Stelluti v. Casapenn Enterprises, LLC, 203 N.J. 286, 305 (2010) (“Although Stelluti argues that she did not know what she was signing, she does not claim that she signed the waiver form as the result of fraud, deceit, or misrepresentation. Therefore, the trial court was well within reason to presume that she understood the terms of the agreement . . . and the finding to that effect is unassailable.”)

Nor does the fact that LA Fitness may not have explained the waiver to her or her daughter preclude enforcement. See Stelluti v. Casapenn Enterprises, LLC, 203 N.J. 286, 301- 02 (2010) (enforcing exculpatory clause while giving plaintiff benefit of inference that “Powerhouse may not have explained to Stelluti the legal effect of the contract that released Powerhouse from liability”).

Finally, the Court is not aware of, nor has Kang cited, any requirement that she must have initialed the waiver provision for that clause to be enforceable against her. While she did not initial the waiver provision, she did sign the membership agreement containing it. In the absence of fraud, that is enough to bind her to its terms. See Statewide, 259 N.J.Super. at 73.

b. Unconscionability

Kang also argues that even if the waiver is found to be enforceable, the Court should invalidate it as a contract of adhesion. “[T]he essential nature of a contract of adhesion is that it is presented on a take-it-or-leave-it basis, commonly in a standardized printed form, without the opportunity for the ‘adhering’ party to negotiate except perhaps on a few particulars.” Rudbart v. N. Jersey Dist. Water Supply Comm’n, 127 N.J. 344, 353, 605 A.2d 681, 685 (1992). Kang’s unconscionability argument is essentially an amalgamation of all of her arguments summarized above: that as someone who does not speak English she lacked the sophistication to understand the terms to which she was agreeing, LA Fitness knew that she was in no position to understand those terms, she did not initial next to the waiver provision, the waiver is one-sided and printed on a standard form agreement, and she was not in a position to negotiate the terms of the agreement. Kang Opp. Br., at pp. 12-14.

Notably, not all contracts of adhesion are unenforceable. In Stelluti, the New Jersey Supreme Court held:

Here, Powerhouse’s agreement was a standard pre-printed form presented to Stelluti and other prospective members on a typical ‘take-it-or-leave-it basis.’ No doubt, this agreement was one of adhesion. As for the relative bargaining positions of the parties, . . . we assume that Stelluti was a layperson without any specialized knowledge about contracts generally or exculpatory ones specifically. Giving her the benefit of all inferences from the record, including that Powerhouse may not have explained to Stelluti the legal effect of the contract that released Powerhouse from liability, we nevertheless do not regard her in a classic ‘position of unequal bargaining power’ such that the contract must be voided. As the Appellate Division decision noted, Stelluti could have taken her business to another fitness club, could have found another means of exercise aside from joining a private gym, or could have thought about it and even sought advice before signing up and using the facility’s equipment. No time limitation was imposed on her ability to review and consider whether to sign the agreement. In sum, although the terms of the agreement were presented ‘as is’ to Stelluti, rendering this a fairly typical adhesion contract in its procedural aspects, we hold that the agreement was not void based on any notion of procedural unconscionability.

Stelluti v. Casapenn Enterprises, LLC, 203 N.J. 286, 301-02 (2010).

Like the defendant in Stelluti, Kang was a layperson without any specialized knowledge of exculpatory contracts, and the Court gives her the benefit of the inference that LA Fitness did not explain the legal effect of the waiver provision to her. However, also like the defendant in Stelluti, Kang was not under any undue pressure to execute the agreement and she could have sought advice before signing. Indeed, her daughter was present to translate. As noted above, the fact that Kang does not speak English does have any legal effect on the contract’s enforceability. Thus, in accordance with Stelluti, the Court finds that although the LA Fitness membership agreement may have been offered on a “take-it-or-leave-it” basis, it is not void on the basis of unconscionability.

Because the exculpatory clause does not offend public policy, the Court finds it to be valid and enforceable. Accordingly, LA Fitness’s motion for summary judgment is granted.

III. Conclusion

For the foregoing reasons, defendants’ motion for summary judgment is granted, and the clerk of the court is direct to close this case. An accompanying Order will be filed.


Get check boxes and initials out of your release!

If the defendants release did not have a catch all phrase at the bottom of the document the release would be invalid because an initial had not been signed by the plaintiff.

Scott-Moncrieff v. Lost Trails, LLC, 2018 U.S. Dist. LEXIS 146936 *; 2018 WL 4110742

State: Pennsylvania: United States District Court for the Middle District of Pennsylvania

Plaintiff: Patrice Scott-Moncrieff

Defendant: The Lost Trails, LLC, et al

Plaintiff Claims: Plaintiff argues that Plaintiff did not sign a waiver on the date of the accident, and therefore did not waive any liability or assume any risk; that she was rushed and unable to read the original waiver in its entirety; that the waiver is unenforceable as not properly conspicuous; and finally, that because the earlier waiver signed by Plaintiff was “for all time thereafter” it should not be enforced.

Defendant Defenses: Release

Holding: For the defendant

Year: 2018

Summary

The plaintiff did not initial one of the initial boxes on the release she signed. This gave the plaintiff enough of an argument to make an appellate argument. But for a final paragraph that covered the uninitialed box language this release would have failed.

Facts

On October 20, 2013, Plaintiff visited Defendant’s ATV facility for the first time and, prior to using the facility, executed a waiver of liability. Plaintiff did not read the waiver in its entirety prior to signing it, and claims she was rushed during the process. On June 22, 2014, Plaintiff returned to the facility, at which time she alleged suffered injuries when she was thrown from the ATV she was riding.

Plaintiff initialed all of the above provisions. She did not initial paragraph 10 on the next page, however, which states as follows:

l0. Having had ample time and opportunity to raise any concerns or questions that I may have, and having read and understood the information, I certify my acceptance of the aforementioned provisions by signing below.

I am in good health and physical condition. I am voluntarily participating with knowledge that dangers are involved and agree to assume all risks. I also understand that if I am injured or become ill, I agree that Lost Trails LLC, or any of its employees, volunteers or guests will not be held liable should they render medical assistance to me or my minor child.

Despite not specifically initialing paragraph 10, Plaintiff did sign the agreement, indicating her acceptance and understanding of the exculpatory clauses.

Analysis: making sense of the law based on these facts.

The court first reviewed the validity of releases under Pennsylvania law. Pennsylvania has a three-part test to determine if releases are valid.

An exculpatory clause is valid if the following conditions are met: 1) the clause does not contravene public policy; 2) the contract is between parties relating entirely to their own private affairs; and 3) the contract is not one of adhesion. A valid exculpatory clause is only enforceable if “the language of the parties is clear that a person is being relieved of liability for his own acts of negligence.”. A waiver of liability violates public policy only if it involves “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.” The exculpatory clause at issue in this case does not contravene public policy because it does not affect a matter of interest to the public or the state.

The three requirements all evolve around the public policy argument. It is against public policy to have someone sign a release for a necessity, where the bargaining power is not equal or if the contract is so nasty it should not be signed by anyone. A release, a contract, to ride an ATV is valid because it is not a necessity, it is between parties of equal bargaining power and it is voluntary.

The contract meets the third prong of the Topp Copy validity standard because it is not a contract of adhesion. Agreements to participate in “voluntary sporting or recreational activities” are not contracts of adhesion because “[t]he signer is a free agent who can simply walk away without signing the release and participating in the activity, and thus the contract signed under such circumstances is not unconscionable.” “The signer is under no compulsion, economic or otherwise, to participate, much less to sign the exculpatory agreement, because it does not relate to essential services, but merely governs a voluntary recreational activity.”

If the release passes the first three tests, it still must be scrutinized by the court to determine if it clearly relieves the defendant of liability. If the language of the agreement sets forth the requirements necessary for the plaintiff to understand she is liable for her injuries.

Even if an exculpatory clause is facially valid, it is enforceable only if it clearly relieves a party of liability for its own negligence. The following standards guide a court’s determination of the enforceability of an exculpatory clause:

1) the contract language must be construed strictly, since exculpatory language is not favored by the law; 2) the contract must state the intention of the parties with the greatest particularity, beyond doubt by express stipulation, and no inference from words of general import can establish the intent of the parties; 3) the language of the contract must be construed, in cases of ambiguity, against the party seeking immunity from liability; and 4) the burden of establishing the immunity is upon the party invoking protection under the clause.

If the release, or any contract under Pennsylvania law meets those tests it is finally reviewed to determine if both parties clearly understood the intent of the agreement. In the case of a release, both parties must understand that the possible plaintiff is giving up his or her right to sue the possible defendant.

Further, the language of the waiver is clear. In interpreting the language of a contract, courts attempt to ascertain the intent of the parties and give it effect. When a writing is clear and unequivocal, its meaning must be determined by its contents alone. “[I]t is not the function of this Court to re-write it, or to give it a construction in conflict with … the accepted and plain meaning of the language used.” Here, the language of the waiver form is unequivocal in stating the intent that it is binding for all time thereafter.

In this case, the court found the release passed all of the tests.

As such, the Court finds that the October 2013 waiver executed by Plaintiff was in effect during her June 2014 visit to Defendant’s property.1

Once the release was found to be valid the next issue was whether or not the plaintiff had signed the release. The plaintiff argued because she had not initialed an initial box, had not read the release in its entirety

One who is about to sign a contract has a duty to read that contract first.” In the absence of fraud, the failure to read a contract before signing it is “an unavailing excuse or defense and cannot justify an avoidance, modification or nullification of the contract.” (Under Pennsylvania law, the failure to read a contract does not nullify the contract’s validity.)

The court did look at situations were the release was enforceable even if the plaintiff did not read the release or could not read the release.

…(written release found to be enforceable even when the agreement was in English but the plaintiff only read and spoke Spanish, noting that the “[p]laintiff cannot argue that the release language was inconspicuous or somehow hidden from his attention…. Nor did Defendant have an obligation to verify that [p]laintiff had read and fully understood the terms of the document before he signed his name to it.”). In this case, there is no allegation or evidence of fraud, and as such, Plaintiff’s argument is without merit.

The plaintiff argued the release was unenforceable because it was inconspicuous. However, the argument seemed to be based on case law that found waivers to be void then the real facts of this case.

The waiver form in this case was two pages in length, and initialed and signed by Plaintiff. It was not, like the waiver in Beck-Hummel, printed in small font on the back of a tubing ticket. This was a waiver that was reviewed, initialed and signed by Plaintiff. As such, the requirements of conspicuity set forth in Beck-Hummel would not necessarily apply.

The saving language of the release that covered the un-initialed section 10 was. Even though paragraph 10 was not initialed, the heading clearly stated what the document was and the intentions of the parties. The language that covered the un-initialed paragraph 10 was:

I HAVE READ THIS RELEASE OF LIABILITY, WAIVER OF LEGAL RIGHTS AND ASSUMPTIONS OF RISK AND FULLY UNDERSTAND ITS CONTENTS. I SIGN IT WILLINGLY, VOLUNTARILY AND HAVING HAD AMPLE OPPORTUNITY TO RAISE ANY QUESTIONS OR CONCERNS THAT I MAY HAVE, I ACKNOWLEDGE THAT I AM PARTICIPATING VOLUNTARILY WITH KNOWLEDGE THAT DANGERS ARE INVOLVED AND I AGREE TO ASSUME ALL THE RISKS.

The court found that the entire agreement was covered by this saving language above. So, the failure to initial one paragraph was not enough to void the release.

The court summarized its reasoning for finding the release valid and upholding the dismissal of the plaintiff’s claims because of the release.

These clauses are conspicuously set apart, appearing in capital letters, and in the case of the final paragraph, fully set apart, in all bold and all capitals. Further, the agreement itself is titled “Waiver Form” which notifies the reader of the purpose of the form. Plaintiff initialed the paragraphs setting forth the exculpatory clauses,2 and signed the agreement directly underneath the final, most prominent waiver clause. As such, the Court finds that the exculpatory clauses are valid and enforceable.

So Now What?

But for language at the bottom of the release which the court found to cover for the language that was not initialed the release would have failed. It is important to note; the court analysis stated the language that was not initialed was not part of the release.

If you have initial boxes, initials, etc., and one box is not initialed, in Pennsylvania that paragraph that is not initialed or initialed is invalid. Dependent upon the language, your release maybe void, if you don’t have the boxes checked or initialed.

Why use them anyway. Here the court explains why they are unnecessary, the language at the bottom of your release should tie everything together. Once you sign you acknowledge that you have read and understood the entire document. The checkboxes or initials can only hurt you in a release, not help you.

What do you think? Leave a comment.

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Scott-Moncrieff v. Lost Trails, LLC, 2018 U.S. Dist. LEXIS 146936 *; 2018 WL 4110742

Scott-Moncrieff v. Lost Trails, LLC, 2018 U.S. Dist. LEXIS 146936 *; 2018 WL 4110742

Scott-Moncrieff v. Lost Trails, LLC

United States District Court for the Middle District of Pennsylvania

August 29, 2018, Decided; August 29, 2018, Filed

CIVIL ACTION NO. 3:16-CV-1105

Reporter

2018 U.S. Dist. LEXIS 146936 *; 2018 WL 4110742

PATRICE SCOTT-MONCRIEFF, Plaintiff v. THE LOST TRAILS, LLC, et al, Defendants

Subsequent History: Appeal filed, 09/13/2018

Core Terms

exculpatory clause, parties, enforceable, material fact, summary judgment, conspicuity, activities, minor child, initialed, non-moving, Trails, signing, Sports, waiver form, font, summary judgment motion, recreational activity, assumption of risk, intent of a party, genuine issue, legal right, requirements, membership, adhesion, rushed, ticket, ride, gym

Counsel: [*1] For Patrice Scott-Moncrieff, Plaintiff: James W. Sutton, III, LEAD ATTORNEY, LAW OFFICES OF VIASAC & SHMARUK, FEASTERVILLE, PA.

For The Lost Trails, LLC, d/b/a Lost Trails ATV Adventures, Defendant, Cross Claimant, Cross Defendant: John T. McGrath, Jr., Marshall, Dennehey, Warner, Coleman & Goggin, Scranton, PA; Michael J. Connolly, Moosic, PA.

Judges: KAROLINE MEHALCHICK, United States Magistrate Judge.

Opinion by: KAROLINE MEHALCHICK

Opinion

MEMORANDUM OPINION

Before the Court is a motion for summary judgment filed by Defendant, The Lost Trails, LLC (“Lost Trails”) in this matter. The motion (Doc. 50) was filed on November 14, 2017, together with a brief in support (Doc. 52), and Statement of Facts (Doc. 53). Plaintiff, Patrice Scott-Moncrieff, filed a brief in opposition (Doc. 54) on November 28, 2017, a reply brief (Doc. 55) was filed on December 6, 2017, and a sur reply brief (Doc. 62) was filed on January 17, 2018. This motion is ripe for disposition. For the following reasons, the Court will grant the motion for summary judgment.

I. Factual Background and Procedural History

The factual background is taken from Defendant’s Statements of Undisputed Material Facts (Doc. 53). Where the parties dispute certain facts, [*2] those disputes are noted. In addition, the facts have been taken in the light most favorable to the plaintiff as the non-moving party, with all reasonable inferences drawn in her favor. This is in accordance with the Local Rules of this Court, which state, in pertinent part, as follows:

LR 56.1 Motions for Summary Judgment.

A motion for summary judgment filed pursuant to Fed.R.Civ.P.56, shall be accompanied by a separate, short and concise statement of the material facts, in numbered paragraphs, as to which the moving party contends there is no genuine issue to be tried.

The papers opposing a motion for summary judgment shall include a separate, short and concise statement of the material facts, responding to the numbered paragraphs set forth in the statement required in the foregoing paragraph, as to which it is contended that there exists a genuine issue to be tried.

Statements of material facts in support of, or in opposition to, a motion shall include references to the parts of the record that support the statements.

All material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing [*3] party.

Local Rule 56.1 (emphasis added).

To comply with Local Rule 56.1, Plaintiff should (1) clearly and unequivocally admit or deny whether each fact contained in Defendant’s statement of facts is undisputed and/or material, (2) set forth the basis for any denial if any fact is not admitted in its entirety, and (3) provide a citation to the record that supports any such denial. Occhipinti v. Bauer, No. 3:13-CV-1875, 2016 U.S. Dist. LEXIS 136082, 2016 WL 5844327, at *3 (M.D. Pa. Sept. 30, 2016); Park v. Veasie, 2011 U.S. Dist. LEXIS 50682, 2011 WL 1831708, *4 (M.D. Pa. 2011). As such, where Plaintiff disputes a fact set forth by Defendant, but fails to provide a citation to the record supporting their denial, that fact will be deemed to be admitted. “Unsupported assertions, conclusory allegations, or mere suspicions” are insufficient to overcome a motion for summary judgment. Schaar v. Lehigh Valley Health Servs., Inc., 732 F.Supp.2d 490, 493 (E.D.Pa. 2010). In this matter, Plaintiff, though including a statement of fact in her brief in opposition to Defendant’s motion for summary judgment (Doc. 54), does not comply with the local rules and submit a separate statement of material facts in opposition to Defendant’s statement of material facts. Notably, despite being given the opportunity to file a sur-reply brief in this matter, after Defendant raises the issue of Plaintiff’s failure to file a statement of facts in its Reply Brief (Doc. 55), Plaintiff still [*4] did not file a separate statement of fact. As such, the facts set forth in Defendant’s statement of material facts will be deemed admitted.

On October 20, 2013, Plaintiff visited Defendant’s ATV facility for the first time and, prior to using the facility, executed a waiver of liability. (Doc. 50-2, at 4-5; DOC. 53, AT ¶¶ 5, 9). Plaintiff did not read the waiver in its entirety prior to signing it, and claims she was rushed during the process. (Doc. 53, at ¶ 7; Doc. 50-2, at 71). On June 22, 2014, Plaintiff returned to the facility, at which time she alleged suffered injuries when she was thrown from the ATV she was riding. (Doc. 1).

The release from liability signed by Plaintiff on October 20, 2013 reads, in pertinent part, as follows:

In consideration for the opportunity for event participation and utilization of general admission, all facilities, equipment and premises of Lost Trails, LLC (LT), North American Warhorse Inc, (NAW) Theta Land Corp. (TLC), 1000 Dunham Drive LLC (DD), and their respective affiliates, members, agents, employees, heirs and assigns and other associates in furtherance of the sport of Off-Road Riding, racing and any other activities, scheduled or unscheduled, [*5] (hereinafter collectively called “Off-Roading.”) This Waiver shall commence on the date first signed and shall remain binding for all time thereafter.

By signing this document, I hereby understand and agree for me and/or my minor child to this Release of Liability, Wavier of Legal rights and Assumption of Risk and to the terms hereof as follows:


2. I hereby RELEASE AND DISCHARGE LT, NAW, TLC, DD and all related parties, event volunteers, company officers, directors, elected officials, agents, employees, and owners of equipment, the land used for Off-Roading activities and any owners of adjourning lands to the premises (hereinafter collectively referred to as “Released parties”) from any and all liability claims, demands or causes of action that I, my minor child or my representatives and my heirs may hereafter have for injuries, loss of life, and all other forms of damages arising out of my voluntary participation in Off-Roading activities.

3. I understand and acknowledge that Off-Road riding and racing activities have inherent dangers that no amount of care, caution, instruction or expertise can eliminate and I EXPRESSLY AND VOLUNTARILY ASSUME ALL RISK OF DEATH OR PERSONAL INJURY [*6] OR OTHER FORMS OF DAMAGES SUSTAINED WHILE PARTICIPATING IN OFF-ROADING ACTIVITIES WHETHER OR NOT CAUSED BY THE NEGLIGENCE OF THE RELEASE PARTIES.

4. I further agree that I WILL NOT SUE OR OTHERWISE MAKE A CLAIM on behalf of me and/or on behalf of my minor child, against the Released Parties for damages or other losses sustained as a result of my participation in Off-Roading activities.

5. I also agree to INDEMNIFY AND HOLD THE RELEASED PARTIES HARMLESS from all claims, judgments and costs, including attorneys’ fees, incurred in the connection with any action brought against them, jointly or severally, as a result of my or my minor child’s participation in “Off-Roading” activities.

6. I take full responsibility for, and hold harmless Released Parties for any injury, property damage, or death that I or my minor child may suffer or inflict upon others .or their property as a result of my engaging in Off-Roading activities.

7. I further represent that I am at least 18 years of age, or that as the parent or (adult) legal guardian, I waive and release any and all legal rights that may accrue to me, to my minor child or to the minor child for whom I am (adult) legal guardian, as the result of [*7] any injury or damage that my minor child, the minor child for whom I am (adult) legal guardian, or I may suffer while engaging in Off-Roading activities.

8. I hereby expressly recognize that this Release of Liability, Waiver of Legal Rights and Assumption of Risks is a contract pursuant to which I have released any and all claims against the Released Parties resulting from participation in Off-Roading activities including any claims related to the negligence of the Released Parties by any of the undersigned.

9. I further expressly agree that the foregoing Release of Liability, Waiver of Legal Rights and Assumption of Risks is intended to be as broad and inclusive as is permitted by law of the province or state in which services, materials and/or equipment are provided and the course of business is conducted, and that if any portion thereof is held invalid, it is agreed that the balance shall, notwithstanding, continue in full legal force and effect. I agree that, should any claim or action arise from my participation as described herein, including any issue as to the applicability of this Release or any provision contained within it, proper Jurisdiction and Venue will lie only in Monroe [*8] County, Pennsylvania and I waive Jurisdiction and Venue anywhere else.

(Doc. 54-1, at 20-21).

Plaintiff initialed all of the above provisions. She did not initial paragraph 10 on the next page, however, which states as follows:

l0. Having had ample time and opportunity to raise any concerns or questions that I may have, and having read and understood the information, I certify my acceptance of the aforementioned provisions by signing below.

I am in good health and physical condition. I am voluntarily participating with knowledge that dangers are involved and agree to assume all risks. I also understand that if I am injured or become ill, I agree that Lost Trails LLC, or any of its employees, volunteers or guests will not be held liable should they render medical assistance to me or my minor child.

(Doc. 54-1, at 21).

Despite not specifically initialing paragraph 10, Plaintiff did sign the agreement, indicating her acceptance and understanding of the exculpatory clauses. (Doc. 54-1).

II. Legal Standard

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment should be granted only if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is “material” only [*9] if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A dispute of material fact is “genuine” if the evidence “is such that a reasonable jury could return a verdict for the non-moving party.” Anderson, 477 U.S. at 248. In deciding a summary judgment motion, all inferences “should be drawn in the light most favorable to the non-moving party, and where the non-moving party’s evidence contradicts the movant’s, then the non-movant’s must be taken as true.” Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 512 (3d Cir. 1994).

A federal court should grant summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000). In deciding a motion for summary judgment, the court’s function is not to make credibility determinations, weigh evidence, or draw inferences from the facts. Anderson, 477 U.S. at 249. Rather, the court must simply “determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249.

The party seeking summary judgment “bears the initial responsibility of informing the district court of the basis for its motion,” and demonstrating the absence of a genuine dispute of any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). If the movant makes [*10] such a showing, the non-movant must go beyond the pleadings with affidavits or declarations, answers to interrogatories or the like in order to demonstrate specific material facts which give rise to a genuine issue. Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 324. The non-movant must produce evidence to show the existence of every element essential to its case, which it bears the burden of proving at trial, because “a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323. Furthermore, mere conclusory allegations and self-serving testimony, whether made in the complaint or a sworn statement, cannot be used to obtain or avoid summary judgment when uncorroborated and contradicted by other evidence of record. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990); see also Thomas v. Delaware State Univ., 626 F. App’x 384, 389 n.6 (3d Cir. 2015) (not precedential) (“[U]nsupported deposition testimony, which is contradicted by the record, is insufficient to defeat summary judgment.”); NLRB v. FES, 301 F.3d 83, 95 (3d Cir. 2002) (“[The plaintiff’s] testimony . . . amounts to an unsupported, conclusory assertion, which we have held is inadequate to satisfy the movant’s burden of proof on summary judgment.”).

As this jurisdiction of this Court is sounded in the diversity of the parties pursuant to 28 U.S.C. § 1332(a), Pennsylvania substantive [*11] law will apply. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).

III. Discussion

Defendant submits that it is entitled to judgment in its favor because Plaintiff executed a valid waiver of all liability prior to ever engaging in any recreational activities on Defendant’s property; because such releases and waivers are recognized under Pennsylvania law; and because within the waiver, Plaintiff specifically acknowledged that she was assuming all of the risks associated with these activities. (Doc. 52, at 2). In response, Plaintiff argues that Plaintiff did not sign a waiver on the date of the accident, and therefore did not waive any liability or assume any risk; that she was rushed and unable to read the original waiver in its entirety; that the waiver is unenforceable as not properly conspicuous; and finally, that because the earlier waiver signed by Plaintiff was “for all time thereafter” it should not be enforced. (Doc. 54).

A. The Exculpatory Clause is Valid

An exculpatory clause is valid if the following conditions are met: 1) the clause does not contravene public policy; 2) the contract is between parties relating entirely to their own private affairs; and 3) the contract is not one of adhesion. Evans v. Fitness & Sports Clubs, LLC, No. CV 15-4095, 2016 U.S. Dist. LEXIS 133490, 2016 WL 5404464, at *3 (E.D. Pa. Sept. 28, 2016); [*12] Topp Copy Prods., Inc. v. Singletary, 533 Pa. 468, 626 A.2d 98, 99 (Pa. 1993). A valid exculpatory clause is only enforceable if “the language of the parties is clear that a person is being relieved of liability for his own acts of negligence.” Id. A waiver of liability violates public policy only if it involves “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., 400 Pa. Super. 134, 582 A.2d 1380, 1382 (Pa. Super. Ct. 1990); see also Kotovsky v. Ski Liberty Operating Corp., 412 Pa. Super. 442, 603 A.2d 663, 665 (Pa. Super. Ct. 1992). The exculpatory clause at issue in this case does not contravene public policy because it does not affect a matter of interest to the public or the state. See Kotovsky, 603 A.2d at 665-66 (holding that releases did not violate public policy because “[t]hey were [in] contracts between private parties and pertained only to the parties’ private rights. They did not in any way affect the rights of the public.”). Thus, the exculpatory clause meets the first two prongs of the Topp Copy standard for validity.

The contract meets the third prong of the Topp Copy validity standard because it is not a contract of adhesion. Agreements to participate in “voluntary sporting or recreational activities” are not contracts of adhesion because “[t]he signer is a free agent [*13] who can simply walk away without signing the release and participating in the activity, and thus the contract signed under such circumstances is not unconscionable.” Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174, 1190-91 (Pa. 2010). “The signer is under no compulsion, economic or otherwise, to participate, much less to sign the exculpatory agreement, because it does not relate to essential services, but merely governs a voluntary recreational activity.” Id. The Agreement at issue here is not a contract of adhesion because it is a contract to participate in voluntary recreational activities. The Agreement does not relate to an essential service, and Plaintiff was free to engage in the activity, or not, as she wished. She was under no compulsion to do so. See Chepkevich, supra; see also Hinkal v. Pardoe, 2016 PA Super 11, 133 A.3d 738, 741-2 (Pa. Super. Ct. 2016) (en banc), appeal denied, 636 Pa. 650, 141 A.3d 481 (Pa. 2016) (citing the “thorough and well-reasoned opinion” of the trial court, which held that the plaintiff’s gym membership agreement was not a contract of adhesion because exercising at a gym is a voluntary recreational activity and the plaintiff was under no compulsion to join the gym). The Agreement meets all three prongs of the Topp Copy standard for validity, and thus the exculpatory clause is facially valid.

B. The Exculpatory Clause is Enforceable

Even if an exculpatory clause is [*14] facially valid, it is enforceable only if it clearly relieves a party of liability for its own negligence. Evans v. Fitness & Sports Clubs, LLC, No. CV 15-4095, 2016 U.S. Dist. LEXIS 133490, 2016 WL 5404464, at *5 (E.D. Pa. Sept. 28, 2016). The following standards guide a court’s determination of the enforceability of an exculpatory clause:

1) the contract language must be construed strictly, since exculpatory language is not favored by the law; 2) the contract must state the intention of the parties with the greatest particularity, beyond doubt by express stipulation, and no inference from words of general import can establish the intent of the parties; 3) the language of the contract must be construed, in cases of ambiguity, against the party seeking immunity from liability; and 4) the burden of establishing the immunity is upon the party invoking protection under the clause.

Topp Copy, 626 A.2d at 99.

The Court now turns to Plaintiff’s arguments against the enforceability of the exculpatory clause.

1. Plaintiff’s first waiver is enforceable, including the clause “for all time thereafter.”

Plaintiff submits that the waiver she executed in October 2013 did not apply to her visit to Defendant on June 22, 2014, because “it is uncontroverted that the Defendant has a policy that dictates all [*15] riders must sign a waiver every time they ride an ATV at their park” (Doc. 54, at 4), and Plaintiff did not sign a waiver when she visited the park in June 2014. Defendant counters that Plaintiff is misconstruing the record in making this assertion. (Doc. 55, at 2). Specifically, Defendant submits that the testimony cited by Plaintiff is that of a former maintenance man who has nothing to do with policy or procedure at Defendant’s property, and further, that he neither testifying as a representative of, nor acting on behalf of, Lost Trails, LLC. (Doc. 55-1, at 4). The testimony offered by the Plaintiff on this issue is that of Matthew Anneman, who testified as follows:

Q: Everybody that goes there is supposed sign the waiver before they go out on the trails, is that fair to say?

A: Yes.

Q: Do you know if Miss Moncrieff signed a waiver before she went on the trail that day?

A: Yes. It is imperative that everybody who comes to ride on that mountain is to fill out a waiver.


Q: So every single time somebody comes to the facility, before they go out there, they go in and sign a waiver.

A: Yes.

Q: And you’re not involved in that part of it, the sign in, and the waiver.

A: No, no. Leslie or one [*16] of her employees would work the front desk.

(Doc. 54-1, at 12; Anneman Dep. at 36).

The Court finds this testimony to have little to no bearing on the validity and applicability of the October 2013 waiver. Even construing the evidence in the record in Plaintiff’s favor, Mr. Anneman’s testimony does not change the fact Plaintiff did sign a waiver in October 2013, one which indicated that it “shall remain binding for all time thereafter.” (Doc. 54-1, at 20) (emphasis added). Nothing in the record before the Court indicates that Mr. Anneman was responsible for either policy at Defendant’s facility, or in any way even involved with the waiver process. Further, the language of the waiver is clear. In interpreting the language of a contract, courts attempt to ascertain the intent of the parties and give it effect. Sycamore Rest. Grp., LLC v. Stampfi Hartke Assocs., LLC, 2017 Pa. Super. 221, 174 A.3d 651, 656 (2017); LJL Transp., Inc. v. Pilot Air Freight Corp., 599 Pa. 546, 962 A.2d 639, 648 (2009). When a writing is clear and unequivocal, its meaning must be determined by its contents alone. Synthes USA Sales, LLC v. Harrison, 2013 Pa. Super. 324, 83 A.3d 242, 250-51 (2013); Murphy v. Duquesne Univ. of the Holy Ghost, 565 Pa. 571, 591, 777 A.2d 418, 429 (2001) (citations and quotation marks omitted). “[I]t is not the function of this Court to re-write it, or to give it a construction in conflict with … the accepted and plain meaning of the language used.” Id.; citing Robert F. Felte, Inc. v. White, 451 Pa. 137, 144, 302 A.2d 347, 351 (1973) (citation omitted). Here, the language of the waiver form (Doc. 54-1, [*17] at 20) is unequivocal in stating the intent that it is binding for all time thereafter. As the Pennsylvania Supreme Court has stated,

The word “all” needs no definition; it includes everything, and excludes nothing. There is no more comprehensive word in the language, and as used here it is obviously broad enough to cover liability for negligence. If it had been the intention of the parties to exclude negligent acts they would have so written in the agreement. This paragraph of the lease is clear and unambiguous. No rules of construction are required to ascertain the intention of the parties.

Topp Copy Prods. v. Singletary, 533 Pa. 468, 472, 626 A.2d 98, 100 (1993); citing Cannon v. Bresch, 307 Pa. 31, 34, 160 A. 595, 596 (1932).

As such, the Court finds that the October 2013 waiver executed by Plaintiff was in effect during her June 2014 visit to Defendant’s property.1

2. Plaintiff’s argument that she was rushed and unable to read the original waiver in its entirety is without merit.

Plaintiff next argues that, should the Court find that the 2013 waiver was in effect in June 2014, she was rushed and therefore did not have time to read the waiver before signing it. “The law of Pennsylvania is clear. One who is about to sign a contract has a duty to read that contract [*18] first.” Hinkal v. Pardoe, 2016 Pa. Super. 11, 133 A.3d 738, 743, appeal denied, 636 Pa. 650, 141 A.3d 481 (2016); In re Estate of Boardman, 2013 PA Super 300, 80 A.3d 820, 823 (Pa.Super.2013); citing Schillachi v. Flying Dutchman Motorcycle Club, 751 F.Supp. 1169, 1174 (E.D.Pa.1990) (citations omitted). In the absence of fraud, the failure to read a contract before signing it is “an unavailing excuse or defense and cannot justify an avoidance, modification or nullification of the contract.” Germantown Sav. Bank v. Talacki, 441 Pa.Super. 513, 657 A.2d 1285, 1289 (1995) (citing Standard Venetian Blind Co. v. American Emp. Ins. Co., 503 Pa. 300, 469 A.2d 563, 566 note (1983)); see also Wroblewski v. Ohiopyle Trading Post, Inc., No. CIV.A. 12-0780, 2013 U.S. Dist. LEXIS 119206, 2013 WL 4504448, at *7 (W.D. Pa. Aug. 22, 2013) (Under Pennsylvania law, the failure to read a contract does not nullify the contract’s validity.); Arce v. U-Pull-It Auto Parts, Inc., No. 06-5593, 2008 U.S. Dist. LEXIS 10202, 2008 WL 375159, at *5-9 (E.D.Pa. Feb.11, 2008) (written release found to be enforceable even when the agreement was in English but the plaintiff only read and spoke Spanish, noting that the “[p]laintiff cannot argue that the release language was inconspicuous or somehow hidden from his attention…. Nor did Defendant have an obligation to verify that [p]laintiff had read and fully understood the terms of the document before he signed his name to it.”). In this case, there is no allegation or evidence of fraud, and as such, Plaintiff’s argument is without merit.

3. The waiver is properly conspicuous.

Finally, Plaintiff avers that summary judgment should be denied because the waiver was not properly conspicuous, and relies on the Pennsylvania Superior Court’s decision in Beck-Hummel in making [*19] this assertion. The Beck-Hummel court addressed the enforceability of a waiver of liability printed on the back of a tubing ticket. The exculpatory language appeared in a font that was “just barely readable,” and smaller than the font used for some other portions of the ticket. Id. at 1274-75. The Beck-Hummel court looked to the conspicuousness of the waiver of liability as a means of establishing whether or not a contract existed, setting forth three factors to consider in determining conspicuousness: 1) the waiver’s placement in the document; 2) the size of the waiver’s font; and 3) whether the waiver was highlighted by being printed in all capital letters or a different font or color from the remainder of the text. Beck-Hummel, 902 A.2d at 1274. After considering these factors, the Beck-Hummel court could not conclude as a matter of law that the exculpatory clause was enforceable because the language of the ticket was not sufficiently conspicuous as to put the purchaser/user on notice of the waiver. Id.at 1275.

However, in a more recent Pennsylvania Superior Court case, the court held that, as in the case presently before this Court, where the exculpatory clause was part of a signed contract between the parties, the requirements of [*20] conspicuity set forth in Beck-Hummel would not necessarily apply. In Hinkal v. Pardoe, the en banc Superior Court of Pennsylvania examined whether the Beck-Hummel conspicuity requirements for the enforcement of exculpatory clauses applies to signed valid written contracts. Hinkal v. Pardoe, 2016 Pa. Super. 11, 133 A.3d 738, 743-745, appeal denied, 636 Pa. 650, 141 A.3d 481 (2016). In Hinkal, the plaintiff had signed a membership agreement with Gold’s Gym that contained a waiver of liability for negligence claims on the back page. Id. at 741. The Hinkal court found the plaintiff’s comparison of her case to Beck-Hummel “inapposite” because, unlike a waiver printed on the back of a tubing ticket that did not require a signature; the gym waiver was part of a signed agreement. Id. at 744-45. Further, the court noted that conspicuity is generally not required to establish the formation of a contract, but “has been resorted to as a means of proving the existence or lack of a contract,” where it is unclear whether a meeting of the minds occurred, and imposing such a requirement would allow a properly executed contract to be set aside through one party’s failure to do what the law requires – reading a contract. Id. at 745. The Hinkal court concluded that the waiver of liability was valid and enforceable because [*21] the plaintiff had signed the agreement. Similarly, in Evans v. Fitness & Sports Clubs, LLC, the District Court determined that the exculpatory clauses contained in a fitness club’s membership agreements were valid and enforceable where the plaintiff had signed both a membership and personal training agreement, including an acknowledgement that the plaintiff had read and understood the entire agreement, including the release and waiver of liability, appears directly above the plaintiff’s signature on the first page of each agreement. Evans v. Fitness & Sports Clubs, LLC, No. CV 15-4095, 2016 U.S. Dist. LEXIS 133490, 2016 WL 5404464, at *6 (E.D. Pa. Sept. 28, 2016).

The Court finds the agreement at issue in this case to be far more in line with the waivers discussed by the Pennsylvania Superior and Eastern District of Pennsylvania courts in Hinkal and Evans. The waiver form in this case was two pages in length, and initialed and signed by Plaintiff. It was not, like the waiver in Beck-Hummel, printed in small font on the back of a tubing ticket. This was a waiver that was reviewed, initialed and signed by Plaintiff. As such, the requirements of conspicuity set forth in Beck-Hummel would not necessarily apply. Hinkal v. Pardoe, 133 A.3d at 743-745.

Even if those conspicuity requirements applied, however [*22] the exculpatory clauses in the Waiver Form would still be enforceable. The document is titled, in larger font, bold, underlined, and all capital letters “LOST TRAILS ATV ADVENTURES WAIVER FORM.” The language specifically indicating release and discharge, assumption of the risk, an agreement not to sue, and indemnification, are set of in all capitals in the numbered paragraphs, and were acknowledged by Plaintiff initialing each paragraph. (Doc. 54-1, at 20). Immediately above the signature line, in all capital bold letters, the release reads:

I HAVE READ THIS RELEASE OF LIABILITY, WAIVER OF LEGAL RIGHTS AND ASSUMPTIONS OF RISK AND FULLY UNDERSTAND ITS CONTENTS. I SIGN IT WILLINGLY, VOLUNTARILY AND HAVING HAD AMPLE OPPORTUNITY TO RAISE ANY QUESTIONS OR CONCERNS THAT I MAY HAVE, I ACKNOWLEDGE THAT I AM PARTICIPATING VOLUNTARILY WITH KNOWLEDGE THAT DANGERS ARE INVOLVED AND I AGREE TO ASSUME ALL THE RISKS.

(Doc. 54-1, at 21).

These clauses are conspicuously set apart, appearing in capital letters, and in the case of the final paragraph, fully set apart, in all bold and all capitals. Further, the agreement itself is titled “Waiver Form” which notifies the reader of the purpose of the form. [*23] Plaintiff initialed the paragraphs setting forth the exculpatory clauses,2 and signed the agreement directly underneath the final, most prominent waiver clause. As such, the Court finds that the exculpatory clauses are valid and enforceable. See Evans, 2016 U.S. Dist. LEXIS 133490, 2016 WL 5404464, at n. 6.

IV. Conclusion

For the reasons set forth above, the undisputed material facts in the record establish that Defendant is entitled to summary judgment. Viewing the record in light most favorable to the Plaintiff, the Court finds that the exculpatory clauses at issue are valid and enforceable. As such, Defendant’s motion will be granted, and judgment will be entered in favor of Defendant.

An appropriate Order follows.

Dated: August 29, 2018

/s/ Karoline Mehalchick

KAROLINE MEHALCHICK

United States Magistrate Judge

ORDER

AND NOW, this 29th day of August, 2018, IT IS HEREBY ORDERED that for the reasons set forth in the memorandum filed concurrently with this Order, Defendant’s motion for summary judgment (Doc. 50) is GRANTED, and judgment is entered in favor of Defendant. The Clerk of Court is directed to CLOSE this matter.

BY THE COURT:

Dated: August 29, 2018

/s/ Karoline Mehalchick

KAROLINE MEHALCHICK

United States Magistrate Judge


Tennessee Supreme Court makes writing releases a little trickier.

The facts support throwing out the release, but the way the court did makes it tough to write a release.

Copeland v. HealthSouth/Methodist Rehab. Hosp., 2018 Tenn. LEXIS 745

State: Tennessee

Plaintiff: Frederick Copeland

Defendant: MedicOne Medical Response Delta Region, Inc.

Plaintiff Claims: Negligence

Defendant Defenses: Release

Holding: For the plaintiff

Year: 2018

Summary

To get to a physical therapy appointment arranged by a hospital the patient was forced to sign a release. While exiting the car service the plaintiff was injured. The Tennessee Supreme Court worked hard but said if you treat people this badly, we will throw out your release and did.

Facts

Mr. Copeland was a seventy-seven-year-old hospital patient recovering from knee replacement surgery who needed to go to a follow-up appointment at his doctor’s office. Mr. Copeland did not select, hire, or pay MedicOne. Instead, the hospital where Mr. Copeland was a patient arranged for his transportation with MedicOne. The MedicOne driver presented Mr. Copeland with a pre-printed, two-sided document containing two different forms — the Run Report and the Agreement — which Mr. Copeland had limited time to review and sign before being transported to his doctor’s appointment. The Agreement consisted of nine single-spaced paragraphs, including three paragraphs of exculpatory language. The MedicOne driver spent only nineteen minutes at the hospital, which began with his arrival, and included going to Mr. Copeland’s room, pushing Mr. Copeland in a wheelchair to the hospital entrance, getting him into the van, loading his walker into the back of the van, and having Mr. Copeland review and sign the two forms.

The MedicOne driver presented the Agreement to Mr. Copeland on a take-it-or-leave-it basis with the expectation that he would sign it. The driver did not understand the implications of the Agreement, could not have explained it if asked, had no authority to alter it, and would not have transported Mr. Copeland to his appointment if he had not signed the document.

The Agreement consisted of nine single-spaced paragraphs, including three paragraphs of exculpatory language. The exculpatory language provided that Mr. Copeland was releasing MedicOne from any and all claims arising from or in any way associated with any transportation services provided by MedicOne.

Analysis: making sense of the law based on these facts.

The facts explain the plaintiff was put in a position where he had no choice, suffer further injury by missing his appointment or sign the document.

The court said releases are fine in Tennessee, but not this one.

We find the exculpatory language in the Agreement to be overly broad and ambiguous. Although the Agreement also contains a severability clause, the three paragraphs containing broad, all-encompassing exculpatory language combined with the severability paragraph do not make it clear and unmistakable what Mr. Copeland was giving up by signing the Agreement, especially during the limited time he was given to read and comprehend the document.

That practical necessity distinguishes this case from those involving purely voluntary or recreational activities, which generally do not affect the public interest or raise public policy concerns.

Based on the circumstances of the parties, including contemporary societal expectations, we conclude that enforcement of the Agreement against a member of the public in Mr. Copeland’s position would be contrary to the public interest.

The court went through the five steps necessary to write a valid release in Tennessee.

First, a party may not, for public policy reasons, exempt itself from liability for gross negligence, reckless conduct, or intentional wrongdoing.

Second, exculpatory provisions in contracts involving common carriers are unenforceable on the grounds of public policy and disparity of bargaining power.

Third, although exculpatory agreements are generally enforceable, in many states they are disfavored.

Fourth, most courts require that the exculpatory language be unequivocal and clear. An exculpatory clause must “clearly, unequivocally, specifically, and unmistakably” state the intention to exempt one of the parties from liability for its own negligence.

Fifth, most jurisdictions do not enforce exculpatory provisions that are contrary to public policy.

Releases in Tennessee are still valid in Tennessee.

After reviewing precedent in this state and across the country, we conclude that the public policy in Tennessee has historically favored freedom of contract. Thus, contracts exempting one party from liability for negligence are not disfavored and are generally enforceable.

However, the court tightened up the requirements for a release to be valid. The court then created 3 factors that any release must meet to be valid in Tennessee.

…we hold that the enforceability of an exculpatory agreement should be determined by considering the totality of the circumstances and weighing these non-exclusive factors: (1) relative bargaining power of the parties; (2) clarity. of the exculpatory language, which should be clear, unambiguous, and unmistakable about what the party who signs the agreement is giving up; and (3) public policy and public interest implications.

The court also decided the bargaining power of the parties should also be taken into consideration.

Relative bargaining power. Although there is no precise rule by which to define sufficient disparity in bargaining power between the parties to invalidate an exculpatory agreement, two key criteria are the importance of the service at issue for the physical or economic well-being of the party signing the agreement and the amount of free choice that party has in seeking alternate services.

The court did carve out a specific exception, to some extent for recreational activities.

That practical necessity distinguishes this case from those involving purely voluntary or recreational activities, which generally do not affect the public interest or raise public policy concerns.

So Now What?

If your activities are in Tennessee or your business is in Tennessee you need to check to make sure your release meets these new requirements.

What do you think? Leave a comment.

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Copeland v. HealthSouth/Methodist Rehab. Hosp., 2018 Tenn. LEXIS 745

Copeland v. HealthSouth/Methodist Rehab. Hosp., 2018 Tenn. LEXIS 745

Supreme Court of Tennessee, At Jackson

May 31, 2018, Session Heard at Nashville1; December 20, 2018, Filed

No. W2016-02499-SC-R11-CV

FREDERICK COPELAND v. HEALTHSOUTH/METHODIST REHABILITATION HOSPITAL, LP ET AL.

Prior History: Tenn. R. App. P. 11 [*1] Appeal by Permission; Judgment of the Court of Appeals Reversed; Judgment of the Trial Court Vacated; Remanded to the Trial Court. Appeal by Permission from the Court of Appeals, Circuit Court for Shelby County. No. CT-000196-16. Rhynette N. Hurd, Judge.

Counsel: Donald K. Vowell, Knoxville, Tennessee, and David E. Gordon and Erin L. Hillyard, Memphis, Tennessee, for the appellant, Frederick Copeland.

Diana M. Comes, Memphis, Tennessee, for the appellee, MedicOne Medical Response Delta Region, Inc.

Judges: SHARON G. LEE, J., delivered the opinion of the Court, in which JEFFREY S. BIVINS, C.J., and CORNELIA A. CLARK, HOLLY KIRBY, and ROGER A. PAGE, JJ., joined.

Opinion by: SHARON G. LEE

OPINION

I.

Frederick Copeland was a patient at HealthSouth Rehabilitation Hospital North Memphis (HealthSouth [*3] or the hospital) after having knee replacement surgery. On December 2, 2014, Mr. Copeland had an appointment to see his orthopedic surgeon. The hospital had contracted with MedicOne Medical Response Delta Region, Inc. (MedicOne), a medical transportation company, to provide transportation services for its patients, including Mr. Copeland.

On the day of Mr. Copeland’s appointment at his orthopedic surgeon’s office, a MedicOne employee driving a wheelchair van2 arrived at the hospital to take Mr. Copeland to and from the appointment. After the driver pushed Mr. Copeland in a wheelchair from his room to the entrance of the hospital, Mr. Copeland got out of the wheelchair, walked to the van using a walker, and climbed into the front passenger seat. Before leaving HealthSouth, the MedicOne driver gave Mr. Copeland a pre-printed two-sided document that contained on one side a Wheelchair Van/Transportation Run Report (Run Report) and on the other side a Wheelchair Van Transportation Agreement (Agreement). The Run Report provided that HealthSouth was responsible for MedicOne’s charges. The Agreement consisted of nine single-spaced paragraphs, including three paragraphs of exculpatory language. [*4] The exculpatory language provided that Mr. Copeland was releasing MedicOne from any and all claims arising from or in any way associated with any transportation services provided by MedicOne. After Mr. Copeland signed the Run Report and the Agreement, the MedicOne driver took him to his doctor’s appointment.

After the appointment, the MedicOne driver returned to the doctor’s office to take Mr. Copeland back to the hospital. As Mr. Copeland was getting into the van, he lost his footing on the running board, fell, and was injured.

Mr. Copeland sued MedicOne for negligence in the Shelby County Circuit Court.3 MedicOne moved to dismiss or, in the alternative, for summary judgment based on the exculpatory language in the Agreement. The trial court granted summary judgment in favor of MedicOne.4 The trial court found that the Agreement was not a contract of adhesion and that the services provided by MedicOne were not professional services, but merely transportation services, and so, the exculpatory provisions were enforceable. The Court of Appeals affirmed, finding that the case involved non-professional transportation services and presented no significant public interest considerations. Copeland [*5] v. HealthSouth/Methodist Rehab. Hosp., LP, No. W2016-02499-COA-R3-CV, 2017 Tenn. App. LEXIS 548, 2017 WL 3433130, at *3, *5 (Tenn. Ct. App. Aug. 10, 2017).

II.

The issue here is the validity of the exculpatory language in the Agreement signed by Mr. Copeland releasing MedicOne from any liability. HN3[] We review the trial court’s summary judgment ruling on this question of law de novo with no presumption of correctness. Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015) (citing Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997)); Circle C Constr., LLC v. Nilsen, 484 S.W.3d 914, 917 (Tenn. 2016) (citing Hamblen Cnty. v. City of Morristown, 656 S.W.2d 331, 335-36 (Tenn. 1983)) (stating that contract interpretation is a question of law).

There is a natural tension between Tennessee’s public policy that favors allowing parties to have freedom to contract5 and the public policy that disfavors allowing a party to escape the consequences of the party’s negligence. In Olson v. Molzen, 558 S.W.2d 429 (Tenn. 1977), we adopted factors to be considered when determining the enforceability of an exculpatory agreement. Olson involved an agreement, signed by a patient before a medical procedure, releasing the doctor from “any present or future legal responsibility associated with” the procedure. Id. at 429-30. The procedure was unsuccessful, and the patient sued the doctor. The trial court dismissed the lawsuit based on the agreement. Id. at 429. The Court of Appeals affirmed the dismissal. Id.

On review, we acknowledged that HN4[] parties may agree that one party will not be liable for negligence to [*6] the other party, subject to certain exceptions. Id. at 430 (citing Moss v. Fortune, 207 Tenn. 426, 340 S.W.2d 902 (Tenn. 1960)). This Court recognized a line of Tennessee cases upholding such agreements,6 but none involving a physician, who is a “professional person operating in an area of public interest and pursuing a profession subject to licensure by the state.” Id. at 430. We distinguished between “tradesmen in the market place” and those “experts” who were practicing state regulated professions. Id. This Court noted that because certain relationships require of one party “‘greater responsibility than that required of the ordinary person,'” an exculpatory agreement between such parties is “‘peculiarly obnoxious.'” Id. (quoting Williston on Contracts § 1751 (3d ed. 1972)). To guide the analysis, this Court adopted a series of factors from Tunkl v. Regents of University of California, 60 Cal. 2d 92, 32 Cal. Rptr. 33, 383 P.2d 441 (Cal. 1963), to be considered in determining whether a transaction affected the public interest:

a. It concerns a business of a type generally thought suitable for public regulation.

b. The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public.

c. The party holds himself out as willing to perform this service for any member [*7] of the public who seeks it, or at least for any member coming within certain established standards.

d. As a result of the essential nature of the services, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services.

e. In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional fees and obtain protection against negligence.

f. Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.

Olson, 558 S.W.2d at 431. Noting that HN5[] not all of these factors must be present for the exception to apply, we found that all the factors were present in Olson and held that the exculpatory agreement was unenforceable. Id. at 431-32.

After our decision in Olson, there was some confusion about whether the Olson factors applied only to exculpatory agreements involving professional services. In two cases, the Court of Appeals determined that the Olson analysis did not [*8] apply because the cases did not involve contracts for professional services. In Schratter v. Development Enterprises, Inc., 584 S.W.2d 459, 461 (Tenn. Ct. App. 1979), the Court of Appeals upheld an exculpatory provision in a residential lease, based in part on its determination that this Court had limited application of the Olson factors to professional service contracts.7 Likewise, in Parton v. Mark Pirtle Oldsmobile-Cadillac-Isuzu, Inc., 730 S.W.2d 634, 636 (Tenn. Ct. App. 1987) (citing Olson, 558 S.W.2d at 430), the Court of Appeals declined to apply the Olson factors to a contract for automobile repair because it concluded that this Court did not intend for the Olson analysis to apply to tradesmen in the market place.8 By the same token, in Petty v. Privette, 818 S.W.2d 743 (Tenn. Ct. App. 1989), the Court of Appeals applied the Olson factors to exculpatory language in a will that was intended to protect the attorney who had drafted the will. Finding only two of the Olson factors were present, the Court of Appeals held that this was insufficient to render the exculpatory clause in the will unenforceable as against public policy. Id. at 746.9

Yet the Court of Appeals in other cases applied the Olson factors when ruling on the enforceability of exculpatory provisions in contracts not involving professional services. In Childress v. Madison County, 777 S.W.2d 1 (Tenn. Ct. App. 1989), the Court of Appeals analyzed an exculpatory release for participation in the Special Olympics. The intermediate appellate [*9] court held that the release did not fall under the exception provided by Olson based on the lack of any business motivations, citing the references in Olson to “‘business, bargaining strength in economic settings, purchasers, and payment of additional fees, to obtain protection against negligence'” and concluded that “the rule was intended to operate primarily in the marketplace.” Id. at 4 (quoting Olson, 558 S.W.2d at 431). The Court of Appeals in Smith v. Peoples Bank of Elk Valley, No. 01A01-9111-CV-00421, 1992 Tenn. App. LEXIS 477, 1992 WL 117061, at *5 (Tenn. Ct. App. June 3, 1992), analyzed an exculpatory provision in a safe deposit box rental contract using the Olson factors. The intermediate appellate court held that the exculpatory provision was unenforceable because all factors were present — safe deposit box rental was regulated by statute and involved a service of great importance to the public; banks hold themselves out as willing to perform this service for any member of the public able to pay the rental fees; banks have greater bargaining power because most people cannot provide that type of protection for their valuables; it was a standardized contract of adhesion not open to negotiation; and the customer’s property was placed under the control of the bank. 1992 Tenn. App. LEXIS 477, [WL] at *4.

In still other post-Olson cases, the Court of Appeals did not mention the Olson [*10] factors or any professional services requirement but relied on the language of the contract to determine the enforceability of the exculpatory provisions. In Hays v. Ernesto’s, Inc., 1987 Tenn. App. LEXIS 2684, 1987 WL 11119, at *2 (Tenn. Ct. App. May 19, 1987), the Court of Appeals found that exculpatory language in a release signed by a party before riding a mechanical bull was enforceable because parties may contract for a release from liability and an assumption of the risk incident to negligence. Similarly, in Buckner v. Varner, 793 S.W.2d 939, 941 (Tenn. Ct. App. 1990), the Court of Appeals upheld a waiver of liability signed by the plaintiff before participating in horseback riding.

After Olson, this Court upheld contractual provisions limiting liability to a sum certain. In Affiliated Professional Services v. South Central Bell Telephone Co., 606 S.W.2d 671, 672 (Tenn. 1980), the Court declined to apply the Olson analysis to a provision in a contract with a telephone company that limited the company’s liability for errors or omissions in yellow pages advertisements to the cost of the advertisement. Citing Smith v. Southern Bell Telephone & Telegraph Co., 51 Tenn. App. 146, 364 S.W.2d 952 (Tenn. 1962) and noting that nearly every appellate court that had considered this frequently litigated issue had upheld the limitation of liability in these contracts with telephone companies, the Court found that the case did not fall within the purview of Olson and upheld the agreement. Affiliated Professional Services, 606 S.W.2d at 672. Later, in Houghland v. Security Alarms & Services, Inc., 755 S.W.2d 769, 773 (Tenn. 1988), this Court upheld a clause limiting the liability [*11] of a company providing security alarm monitoring to a sum certain, citing cases from other jurisdictions and noting that such limitations of liability have generally been upheld in these types of cases against providers of alarm monitoring services. The Court in Houghland mentioned Olson, observing that agreements such as the one examined there would be unenforceable if licensed professional personnel were involved. Id. (citing Olson, 558 S.W.2d 429). Houghland and its progeny involved limitations of liability and liquidated damages provisions, and thus were distinguishable from the agreement in Olson. In addition, the alarm monitoring company in Houghland did not present the contract on a “take-it-or-leave-it” basis, but offered the customer the opportunity to pay more for the services in return for the company assuming greater liability. Id.; see also Underwood v. Nat’l Alarm Servs., Inc., No. E2006-00107-COA-R3-CV, 2007 Tenn. App. LEXIS 305, 2007 WL 1412040 (Tenn. Ct. App. May 14, 2007); E.B. Harvey & Co., Inc. v. Protective Sys., Inc., 1989 Tenn. App. LEXIS 105, 1989 WL 9546 (Tenn. Ct. App. 1989).

In another post-Olson case, Adams v. Roark, 686 S.W.2d 73, 75 (Tenn. 1985), this Court did not reference the Olson factors in finding that a release signed by a participant in a motorcycle race was enforceable in a claim for ordinary negligence.10 Instead, the Court noted that the public policy of Tennessee favors freedom to contract and [*12] that releases from liability in motor racing events are expressly permitted by statute in Tennessee.11
Id. at 75-76.

This Court next considered the applicability of the Olson factors to a nonprofessional services contract in Crawford v. Buckner, 839 S.W.2d 754 (Tenn. 1992). Analyzing an exculpatory clause in a residential lease contract, the Court found that the landlord-tenant relationship satisfied all of the Olson factors, and thus the exculpatory clause in the lease was unenforceable because it was contrary to public policy. Id. at 758-59. The Court explained HN6[] “where there is no declaration in the Constitution or the statutes, and the area is governed by common law doctrines, it is the province of the courts to consider the public policy of the state as reflected in old, court-made rules.” Id. at 759. Thus, “the exception to the freedom of contract rule for exculpatory [provisions] affecting the public interest is also a judicial declaration of public policy.” Id.

The Court in Crawford expressly overruled Schratter and other prior inconsistent decisions, noting Schratter’s conclusion that the Olson factors applied only to contracts involving professional services. Id. at 760. The Court held that “under the facts here,” the exculpatory clause in the lease was against public policy. Id. [*13] This limiting language appears to have added to the confusion about the applicability of the Olson factors because even after Crawford, the inconsistency in application continued.

In some post-Crawford cases, the Court of Appeals determined that the Olson factors did not apply because the agreement did not involve professional services. Petry v. Cosmopolitan Spa Int’l, Inc., 641 S.W.2d 202, 203 (Tenn. Ct. App. 1982) (stating that “Olson did not overrule Empress” because spas are not “businesses ‘of a type generally thought suitable for regulation'”) (quoting Olson, 558 S.W.2d at 431); Floyd v. Club Sys. of Tenn., Inc., No. 01-A-01-9807-CV-00399, 1999 Tenn. App. LEXIS 473, 1999 WL 820610, at *4 (Tenn. Ct. App. July 20, 1999) (finding, based on Petry, that the Olson test did not apply to health club contracts); Henderson v. Quest Expeditions, Inc., 174 S.W.3d 730, 732-33 (Tenn. Ct. App. 2005) (upholding an exculpatory waiver for whitewater rafting because it did not involve a professional trade affecting the public interest); Thrasher v. Riverbend Stables, LLC, No. M2008-02698-COA-RM-CV, 2009 Tenn. App. LEXIS 50, 2009 WL 275767, at *3 (Tenn. Ct. App. Feb. 5, 2009) (quoting Russell v. Bray, 116 S.W.3d 1, 6 (Tenn. Ct. App. 2003)) (upholding an exculpatory provision in a contract for boarding and training horses because the Olson test applied only to agreements involving a professional person).

Yet in other post-Crawford cases, the Court of Appeals applied the Olson analysis to contracts that did not involve professional services. Lomax v. Headley Homes, No. 02A01-9607-CH-00163, 1997 Tenn. App. LEXIS 360, 1997 WL 269432, at *7-9 (Tenn. Ct. App. May 22, 1997) (holding an exculpatory provision in a home construction loan agreement [*14] unenforceable under the Olson analysis); Hancock v. U-Haul Co. of Tenn., No. 01-A-01-9801-CC-00001, 1998 Tenn. App. LEXIS 828, 1998 WL 850518, at *4-5 (Tenn. Ct. App. Dec. 10, 1998) (concluding an exculpatory provision was enforceable in a self-storage facility contract because although three of the Olson factors were present, the “important questions” of state regulation, reasonable alternatives for the plaintiff, and control over the plaintiff’s property were lacking); Lane-Detman, L.L.C. v. Miller & Martin, 82 S.W.3d 284, 293-94 (Tenn. Ct. App. 2002) (applying the Olson analysis to a contract with a law firm to provide background checks and holding that the contract was enforceable because “at most” three of the Olson factors were present, both parties to the contract were sophisticated commercial entities, and the services provided were not subject to regulation); Tompkins v. Helton, No. M2002-01244-COA-R3-CV, 2003 Tenn. App. LEXIS 433, 2003 WL 21356420, at *4 (Tenn. Ct. App. June 12, 2003) (applying the Olson factors to uphold a waiver signed at a racetrack because races are not of great importance to the public or a practical necessity; there was no disparity in bargaining power; and because the activity was voluntary, the plaintiff had not been placed under the control of the racetrack owner); Maxwell v. Motorcycle Safety Found., Inc., 404 S.W.3d 469, 474-75 (Tenn. Ct. App. 2013) (citing Henderson, 174 S.W.3d at 733; Tompkins, 2003 Tenn. App. LEXIS 433, 2003 WL 21356420 at *1) (determining that a release for a motorcycle safety course was enforceable under the Olson analysis because it was a voluntary activity much like a motor speedway race or whitewater [*15] rafting).

In other post-Crawford cases, the Court of Appeals found that exculpatory provisions were unenforceable and against public policy under the Olson analysis specifically because the cases involved professional services or services that affected the public interest in a way analogous to a professional services contract. In Russell v. Bray, 116 S.W.3d 1, 6 (Tenn. Ct. App. 2003) (citing Olson, 558 S.W.2d at 430; Parton, 730 S.W.2d at 636), the Court of Appeals stated that the Olson analysis should be “limited to situations involving a contract with a professional person, rather than a tradesman.” The Russell court found that an exculpatory provision in a home inspection contract was suitable for analysis under the Olson test because unlike tradesmen, home inspectors do not perform hands-on tasks but sell their expert analysis and opinions. Id.; see also Carey v. Merritt, 148 S.W.3d 912 (Tenn. Ct. App. 2004) (holding an exculpatory clause in a home inspection contract unenforceable based on the holding in Russell). In Maggart v. Almany Realtors, Inc., No. M2005-02532-COA-R3-CV, 2007 Tenn. App. LEXIS 482, 2007 WL 2198204 at *5 (Tenn. Ct. App. July 26, 2007) (quoting Olson, 558 S.W.2d at 430-31), aff’d on other grounds, 259 S.W.3d 700 (Tenn. 2008), the Court of Appeals analogized an exculpatory agreement between employer and employee to exculpatory provisions in business contracts with consumers, observing that the relationship was one requiring greater responsibility [*16] on the part of the employer, which would render an exculpatory release in favor of the employer “obnoxious.”

There are also post-Crawford cases in which the Court of Appeals did not mention Olson, but relied solely on the common law of contracts and the language of the agreement to determine the enforceability of an exculpatory provision. Pettit v. Poplar-Union Extended Mini-Storage, 1995 Tenn. App. LEXIS 32, 1995 WL 30602, at *2 (Tenn. Ct. App. Jan. 26, 1995) (holding an exculpatory provision in a self-storage contract enforceable because the language was unambiguous); Burks v. Belz-Wilson Props., 958 S.W.2d 773, 777 (Tenn. Ct. App. 1997) (citation omitted) (finding a release for participation in a work-sponsored athletic event unenforceable because the wording was ambiguous and thus construed against the drafter); Fleming v. Murphy, No. W2006-00701-COA-R3-CV, 2007 Tenn. App. LEXIS 451, 2007 WL 2050930, at *14 (Tenn. Ct. App. July 19, 2007) (citing Ouzts v. Womack, 160 S.W.3d 883, 885 (Tenn. Ct. App. 2004)) (“Under the common law of contracts, we interpret exculpatory clauses according to the plain meaning of their terms.”); Gibson v. Young Men’s Christian Ass’n of Middle Tenn., No. M2015-01465-COA-R9-CV, 2016 Tenn. App. LEXIS 337, 2016 WL 2937320, at *2-3 (Tenn. Ct. App. May 16, 2016) (applying the rules of contract interpretation and looking at the plain meaning of the words to find the exculpatory provision enforceable where the agreement was clear and the plaintiff was injured while using the facilities as contemplated by the parties).

Federal courts have followed suit by inconsistently applying [*17] Olson. See Teles v. Big Rock Stables, L.P., 419 F. Supp. 2d 1003, 1008-09 (E.D. Tenn. 2006) (analyzing a contract with a horse stable under the Olson test and finding that it did not fall under the Olson exception prohibiting exculpatory provisions, although there was a genuine issue of material fact as to gross negligence that precluded summary judgment); Farris v. KTM N. Am., Inc., No. 3:04-CV-354, 2006 U.S. Dist. LEXIS 1635, 2006 WL 73618, at *3 (E.D. Tenn. Jan. 11, 2006) (quoting Olson, 558 S.W.2d at 430) (citing Olson in support of enforcing an exculpatory waiver for test driving motorcycles because it did not involve a service of great importance to the public, but noting that application of the Olson factors is typically limited to a contract for professional services).

This Court has not addressed the enforceability of exculpatory agreements since Crawford in 1992.12 Because of the inconsistency in how these agreements have been reviewed, we take this opportunity to restate the proper analysis to be applied to these agreements.

III.

Although courts throughout the country have taken numerous and varied approaches to exculpatory agreements, there are some common principles.13 First, HN7[] a party may not, for public policy reasons, exempt itself from liability [*18] for gross negligence, reckless conduct, or intentional wrongdoing. Restatement (Second) of Contracts § 195 (1981); Maxwell, 404 S.W.3d at 476 (citing Buckner, 793 S.W.2d at 941).

Second, HN8[] exculpatory provisions in contracts involving common carriers are unenforceable on the grounds of public policy and disparity of bargaining power. 14 Am. Jur. 2d Carriers § 853 (Nov. 2018 update) (noting that public policy forbids relieving carriers of responsibility based on their position of advantage over members of the public who are compelled to deal with them); see also Trailmobile, Inc. v. Chazen, 51 Tenn. App. 576, 370 S.W.2d 840, 841-42 (Tenn. Ct. App. 1963); Moss, 340 S.W.2d at 904. The same rule applies to inns and airports that assume “a duty of public service” to certain segments of the public. 1A Stuart M. Speiser et al., American Law of Torts § 5:39 (Mar. 2018 update).14

Third, HN10[] although exculpatory agreements are generally enforceable, in many states they are disfavored. See 8 Williston on Contracts § 19:25 (4th ed. 1993).15

Fourth, HN12[] most courts require that the exculpatory language be unequivocal and clear. Williston § 19:22. An exculpatory clause must “clearly, unequivocally, specifically, and unmistakably” state the intention to exempt one of the parties from liability for its own negligence. Id. § 19:25; see also, e.g., Parton, 730 S.W.2d at 638 (holding an exculpatory [*19] clause invalid based on a lack of evidence that it had been pointed out to the plaintiff or that “a person of ordinary intelligence and experience” would understand that the agreement relieved the defendant of all liability); Sirek v. Fairfield Snowbowl, Inc., 166 Ariz. 183, 800 P.2d 1291, 1295 (Ariz. Ct. App. 1990) (stating that exculpatory language should alert the party signing the release that “it is giving up a very substantial right”); Sanislo v. Give Kids the World, Inc., 157 So. 3d 256, 261 (Fla. 2015) (holding exculpatory agreements enforceable if the language is “so clear and understandable that an ordinary and knowledgeable person will know what he or she is contracting away”).

Fifth, HN13[] most jurisdictions do not enforce exculpatory provisions that are contrary to public policy. There is no bright line rule defining when a provision is contrary to public policy, but Williston suggests that whether an exculpatory agreement is void as against public policy depends on:

all of the facts and circumstances surrounding the making of the agreement; society’s expectations; the identity and nature of the parties involved, including their relative education, experience, sophistication, and economic status; and the nature of the transaction itself, including the subject matter, the existence or absence of competition, the relative bargaining strength [*20] and negotiating ability of the economically weaker party, and the terms of the agreement itself, including whether it was arrived at through arm’s length negotiation or on terms dictated by the stronger party and on an adhesive, take-it-or-leave-it basis.

Williston § 19:22.

This Court adopted the Olson factors based on the Tunkl analysis. Tunkl, however, is the minority approach, with only five other states currently relying on the Tunkl factors to determine the enforceability of exculpatory provisions.16 Courts in several states have observed that the factors fail to consider the totality of circumstances and, as a result, are overly rigid and arbitrary. See Wolf v. Ford, 335 Md. 525, 644 A.2d 522, 527 (Md. 1994) (declining to adopt Tunkl because of concern that the six fixed factors may be too rigid and arbitrary); Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920, 924 (Minn. 1982) (noting that although a number of courts cite Tunkl with approval, post-Tunkl cases generally consider disparity in bargaining power and whether the agreement involves a public or essential service); Hanks v. Powder Ridge Rest. Corp., 276 Conn. 314, 885 A.2d 734, 744 (Conn. 2005) (stating that public interest cannot adequately be defined within the four corners of a formula, and thus the analysis should be guided but not limited by the Tunkl factors).

After reviewing precedent in this state and across the country, we conclude that HN14[] the public policy in Tennessee has historically favored freedom of contract. Thus, contracts exempting one party from liability for negligence are not disfavored and are generally enforceable. Olson, 558 S.W.2d at 430. That said, not all exculpatory agreements should be enforceable, and courts should determine their enforceability by consideration of the circumstances of the parties, the language used in the agreement, and the public interest. While the factors adopted in Olson remain instructive and may be considered when relevant, the Olson approach is too rigid, fails to consider all the relevant circumstances, and is followed by only a handful of jurisdictions.

We, therefore, need to restate our approach to determining the validity of exculpatory agreements. After surveying the factors adopted by courts in other states17 and considering Tennessee precedent, we hold that HN15[] the enforceability of an exculpatory agreement should be determined by considering the totality of the circumstances and weighing these non-exclusive factors: (1) relative bargaining power of the parties; (2) clarity [*22] of the exculpatory language, which should be clear, unambiguous, and unmistakable about what the party who signs the agreement is giving up; and (3) public policy and public interest implications. HN16[] The totality of the facts and circumstances of each case will dictate the applicability of and the weight to be given to each of these factors. The factors need not be weighed equally in any given case — rather, the analysis should involve balancing each of these considerations given the facts and circumstances surrounding the formation of the agreement. In addition, we hold that there is no “professional services criterion” that restricts application of this analysis to contracts for professional services. Therefore, we overrule Parton, 730 S.W.2d 634; Petty, 818 S.W.2d 743; Petry, 641 S.W.2d 202; Floyd, 1999 Tenn. App. LEXIS 473, 1999 WL 820610; Henderson, 174 S.W.3d 730; Thrasher, 2009 Tenn. App. LEXIS 50, 2009 WL 275767; Russell, 116 S.W.3d 1; Carey, 148 S.W.3d 912; and any other previous decisions to the extent these cases conflict with our holding.

We next turn to defining these factors to provide additional guidance in their application to the facts and circumstances of each case.

Relative bargaining power. HN17[] Although there is no precise rule by which to define sufficient disparity in bargaining power between the parties to invalidate an exculpatory agreement, two key [*23] criteria are the importance of the service at issue for the physical or economic well-being of the party signing the agreement and the amount of free choice that party has in seeking alternate services. Schmidt v. United States, 1996 OK 29, 912 P.2d 871, 874 (Okla. 1996). For example, a standardized form offered on a take-it-or-leave-it basis may be invalid if there was great disparity of bargaining power, no opportunity for negotiation, and the services could not reasonably be obtained elsewhere. Schlobohm, 326 N.W.2d at 924.18

Clarity of language. HN18[] The language of an exculpatory agreement must clearly and unequivocally state a party’s intent to be relieved from liability, and the wording must be “so clear and understandable that an ordinary and knowledgeable person will know what he or she is contracting away.” Sanislo, 157 So. 3d at 260-61.19 The language must also alert the party agreeing to the exculpatory provision that the provision concerns a substantial right. Sirek, 800 P.2d at 1295. The language in the agreement should not be so broad as to relieve the exculpated party from liability for any injury for any reason. Burks, 958 S.W.2d at 777 (holding exculpatory provision relieving the defendant “from any and all liability . . . relating to participation in these events” unenforceable as overly broad and ambiguous); Roberts v. T.H.E. Ins. Co., 2016 WI 20, 367 Wis. 2d 386, 879 N.W.2d 492, 503 (Wis. 2016) (citing Richards v. Richards, 181 Wis. 2d 1007, 513 N.W.2d 118, 121 (Wis. 1994)).20 Ambiguous language [*24] will be construed against the party that drafted the agreement. Burks, 958 S.W.2d at 777.

Public policy and the public interest. HN21[] The third factor, public policy and the public interest, is the most difficult to articulate. Public policy has been defined as “‘that principle of law under which freedom of contract or private dealings is restricted by law for the good of the community.'” Roberts, 879 N.W.2d at 501-02 (quoting Atkins v. Swimwest Family Fitness Ctr., 2005 WI 4, 277 Wis. 2d 303, 691 N.W.2d 334, 339 (Wis. 2005)). A private contract violates public policy if it conflicts with the constitution, statutes, or judicial decisions of this state or tends to be harmful to the public good, public interest, or public welfare. Spiegel v. Thomas, Mann & Smith, P.C., 811 S.W.2d 528, 530 (Tenn. 1991). As this Court explained in Crawford, without a declaration in the constitution or the statutes of Tennessee, a judicial declaration of public policy is within the province of the courts. 839 S.W.2d at 759. Public policy is also determined by societal expectations that are flexible and change over time. See Wolf, 644 A.2d at 527-28 (“The ultimate determination of what constitutes the public interest must be made considering the totality of the circumstances of any given case against the backdrop of current societal expectations.”).

HN22[] Whether the public interest is affected may be determined by considering whether a party to [*25] the transaction has a public service obligation, such as a public utility, common carrier, or innkeeper. Wolf, 644 A.2d at 526. This analysis also includes transactions that are not as readily defined, but are so important to the public good that an exculpatory clause would be contrary to society’s expectations. Id. (quoting Md.-Nat’l Capital Park & Planning Comm’n v. Wash. Nat’l Arena, 282 Md. 588, 386 A.2d 1216, 1228 (Md. 1978)); see also Hanks v. Powder Ridge Rest. Corp., 276 Conn. 314, 885 A.2d 734, 744 (Conn. 2005) (citations omitted) (agreeing with the Maryland and Vermont Supreme Courts that the public interest must be determined based on the totality of the circumstances and that the analysis, guided but not limited by Tunkl, “is informed by any other factors that may be relevant given the factual circumstances of the case and current societal expectations”); Williston § 19:22.

In determining whether the service involved is a public or essential service, courts should consider whether it is a type of service generally considered suitable for public regulation. Schlobohm, 326 N.W.2d at 925-26. And in deciding whether enforcement of an exculpatory provision would be against public policy, courts should consider whether the services involved are of great importance to the public, which are a practical necessity for some members of the public. Id.; see also Plant v. Wilbur, 345 Ark. 487, 47 S.W.3d 889, 893 (Ark. 2001) (upholding release signed by a spectator at a car race because [*26] that activity involved a narrow segment of the public, unlike a public utility, common carrier, or “a similar entity connected with the public interest”).

IV.

In applying this restated analysis to the facts before us, we take the strongest legitimate view of the evidence in favor of Mr. Copeland as the non-moving party for summary judgment and allow all reasonable inferences in his favor. B & B Enters. of Wilson Cnty., LLC v. City of Lebanon, 318 S.W.3d 839, 844-45 (Tenn. 2010); Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 84 (Tenn. 2008) (citing Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 89 (Tenn. 2000)).

We begin with the first factor — disparity in bargaining power. Mr. Copeland was a seventy-seven-year-old hospital patient recovering from knee replacement surgery who needed to go to a follow-up appointment at his doctor’s office. Mr. Copeland did not select, hire, or pay MedicOne. Instead, the hospital where Mr. Copeland was a patient arranged for his transportation with MedicOne. The MedicOne driver presented Mr. Copeland with a pre-printed, two-sided document containing two different forms — the Run Report and the Agreement — which Mr. Copeland had limited time to review and sign before being transported to his doctor’s appointment. The Agreement consisted of nine single-spaced paragraphs, including three paragraphs of exculpatory language. The MedicOne driver spent only nineteen minutes [*27] at the hospital, which began with his arrival, and included going to Mr. Copeland’s room, pushing Mr. Copeland in a wheelchair to the hospital entrance, getting him into the van, loading his walker into the back of the van, and having Mr. Copeland review and sign the two forms.

The MedicOne driver presented the Agreement to Mr. Copeland on a take-it-or-leave-it basis with the expectation that he would sign it. The driver did not understand the implications of the Agreement, could not have explained it if asked, had no authority to alter it, and would not have transported Mr. Copeland to his appointment if he had not signed the document.

Mr. Copeland had a practical necessity to get to his medical appointment. He had the difficult choice of signing the Agreement or delaying or forgoing his medical care that day. Mr. Copeland’s situation was analogous to the difficult choice presented to the plaintiff in Wofford v. M.J. Edwards & Sons Funeral Home, Inc., 490 S.W.3d 800 (Tenn. Ct. App. 2015). There, a funeral home presented the plaintiff with a contract for funeral services after her father’s body had been embalmed. Relying on Buraczynski v. Eyring, 919 S.W.2d 314 (Tenn. 1996), the Wofford court ruled that the arbitration clause in the contract was unenforceable because it was a contract of adhesion, offered on a take-it-or-leave-it [*28] basis, and the plaintiff’s failure to sign the agreement would have interrupted the rendition of services and caused delay, resulting in a “difficult choice.” 490 S.W.3d at 824. Recognizing that the Buraczynski analysis rests on the critical finding of a unique relationship built on trust (such as the doctor-patient relationship in Buraczynski), the Wofford court found that the plaintiff had no realistic choice other than to sign the contract, and that asking her to stop the funeral services at that point would be like asking her “to swap horses midstream.” Id. at 816. Mr. Copeland may not have had a preexisting relationship with MedicOne that was “unique and built on trust,” but he did have a hospital-patient relationship with HealthSouth, the entity that had arranged for his transportation by MedicOne. Mr. Copeland also faced the same kind of difficult choice — refusing to sign the Agreement, offered on a take-it-or-leave-it basis that would have potentially interrupted and caused a delay in his medical care by requiring him to reschedule his appointment or, as the Court of Appeals suggested, calling a taxi. In our view, asking Mr. Copeland to make such a choice would be like asking him to “swap horses in [*29] midstream.” Id. There is ample evidence in the record of relative disparity in the parties’ bargaining power.

We now turn to the second factor — the clarity of the Agreement’s exculpatory language. Much of the exculpatory language appears in bold print and all capital letters. Even so, although portions of paragraphs three and four purport to limit the exculpatory language in those paragraphs to simple negligence by expressly excluding gross negligence and willful misconduct, this limiting language begins by stating, “WITHOUT LIMITATION OF THE FOREGOING . . . .” The “foregoing” in paragraph three reads:

Client does hereby release and forever discharge MedicOne . . . from any and all claims, suits, rights, interests, demands, actions, causes of action, liabilities, accident, injury (including death), costs, fees, expenses and any and all other damages or losses of any kind whatsoever, whether to person or property . . . arising out of, incidental to, associated with, or in any way related to any transportation services provided to Client by MedicOne.

Similarly, the “foregoing” in paragraph four reads:

CLIENT WILL INDEMNIFY, DEFEND AND HOLD HARMLESS MEDICONE RELATED PARTIES FROM AND AGAINST [*30] ANY AND ALL CLAIMS ASSERTED BY CLIENT, ANY PERSON OR ENTITY RELATED TO CLIENT OR ASSERTING A CLAIM BY OR THROUGH CLIENT, OR ANY OTHER THIRD PARTIES OR ENTITIES WHICH, IN ANY WAY, ARISE OUT OF, ARE INCIDENTAL TO, ASSOCIATED WITH, OR IN ANY WAY RELATED TO ANY TRANSPORTATION SERVICES PROVIDED TO CLIENT BY MEDICONE.

Paragraph six contains no limitation for claims of gross negligence or willful misconduct, but purports to release MedicOne from “any liability, damage or expense arising out of any claim in any way associated with or relating to any transportation services provided to Client by MedicOne.”

HN23[] Courts in many jurisdictions, including Tennessee, have found such unlimited language to be so overly broad as to render the provisions unenforceable. See Burks, 958 S.W.2d at 777 (holding release “from any and all liability claims, demands, actions or causes of action whatsoever, arising out of or any injury, illness loss or damage including death relating to participation in these events” unenforceable because it would “extend its exculpation to unbounded limits”); Fisher v. Stevens, 355 S.C. 290, 584 S.E.2d 149, 152-53 (S.C. Ct. App. 2003) (finding a waiver signed at a racetrack to be overly broad and unenforceable based on public policy because the waiver released from liability “any [*31] persons in any restricted area”); Jesse v. Lindsley, 149 Idaho 70, 233 P.3d 1, 7-8 (Idaho 2008) (holding exculpatory clause in a residential lease unenforceable because it purported to release the landlord from liability “for any occurrence of any nature”); Alack v. Vic Tanny Int’l of Mo., Inc., 923 S.W.2d 330, 337-38 (Mo. 1996) (finding exculpatory clause unenforceable based on its ambiguity because the clause did not specifically state that the customer was releasing the health club from liability for negligence and used words like “any” and “all” injuries and claims, which could include intentional or grossly negligent conduct that cannot be excluded from liability); Roberts, 879 N.W.2d at 503 (holding waiver unenforceable because it was too broad and all-inclusive, ambiguous about whether it covered injury while waiting in line for the activity, and was a standard pre-printed form with no opportunity to negotiate).

We find the exculpatory language in the Agreement to be overly broad and ambiguous. Although the Agreement also contains a severability clause,21 the three paragraphs containing broad, all-encompassing exculpatory language combined with the severability paragraph do not make it clear and unmistakable what Mr. Copeland was giving up by signing the Agreement, especially during the limited time he was given to read and comprehend [*32] the document.

Finally, we turn to the third factor — public policy and public interest implications. Mr. Copeland’s appointment with his doctor was a medical necessity. That practical necessity distinguishes this case from those involving purely voluntary or recreational activities, which generally do not affect the public interest or raise public policy concerns. Maxwell, 404 S.W.3d at 475; Henderson, 174 S.W.3d at 733. Although public policy and the [*33] public interest are difficult concepts to define, some relationships require greater responsibility of one of the parties. Olson, 558 S.W.2d at 430. MedicOne was in a position of greater responsibility when it undertook to transport Mr. Copeland to and from his doctor’s office. Mr. Copeland had limited time to read and comprehend the overly broad and ambiguous Agreement and the Run Report. Under these circumstances, it is not reasonable to conclude that Mr. Copeland could have just called a taxi or rescheduled his appointment. HN24[] Our public policy protects patients and clients of professionals, residential tenants, employees, bank customers, and homebuyers from exculpatory provisions. It only makes sense that our public policy should also protect a hospital patient under the circumstances faced by Mr. Copeland when he signed the Agreement. Based on the circumstances of the parties, including contemporary societal expectations, we conclude that enforcement of the Agreement against a member of the public in Mr. Copeland’s position would be contrary to the public interest.

V.

In sum, after considering the totality of the circumstances and weighing the inequality in the relative bargaining power of the parties, the [*34] lack of clarity of the exculpatory language, and the public policy and public interest implications, we hold that, as a matter of law, the exculpatory provisions in the Agreement signed by Mr. Copeland are unenforceable and do not bar his claim against MedicOne. We vacate the judgment of the trial court, reverse the judgment of the Court of Appeals, and remand to the trial court for further proceedings consistent with this opinion. We tax the costs of this appeal to MedicOne Medical Response Delta Region, Inc., for which execution may issue if necessary.

SHARON G. LEE, JUSTICE