Wife signed release, husband signed addendum to release and was held to the exculpatory clause in the release
Posted: November 11, 2013 Filed under: Georgia, Health Club, Release (pre-injury contract not to sue) | Tags: Addendum, Contract, Douglasville Health & Athletic Club, Fitness Club, Gordon Johnson, Gym, Health club, James Haddle d/b/a Douglasville Health & Athletic Club, New York City, Public Policy, Release, Rock climbing, Summary judgment, Waiver Leave a commentLanguage of addendum was sufficient to bind husband to contract – but a risky legal move.
Plaintiff: Terrell L. Hembree
Defendant: Gordon Johnson and James Haddle d/b/a Douglasville Health & Athletic Club
Plaintiff Claims: negligence
Defendant Defenses: Release
Holding: for the defendants
The wife of the plaintiff joined the defendant Douglasville Health & Athletic Club. When she joined she signed the Membership Agreement that was referenced by an Agreement Number (13217). When she completed the agreement. She listed her husband, the plaintiff as a family member. The membership agreement on the front referred to rules and conditions that the signor agreed to that were listed on the back. The rules and conditions on the back included exculpatory (release) language.
Several months after his wife joined, the plaintiff joined the health club. He signed a Membership Addendum which stated, “I herewith modify my original membership agreement No. 13217 dated 4-14-92 as stated herein.”
The plaintiff allegedly slipped and fell while playing racquetball injuring his knee. The defendants filed a motion for summary judgment based upon the release signed by the spouse of the plaintiff.
Summary of the case
The plaintiff argued the dismissal of his case was improper because there was the existence of a material issue of a disputed fact. That fact was whether he assented to the release when he joined the defendant club.
Under Georgia law the construction of a written contract is a question of law, which can be decided by a court unless an ambiguity exists in the agreement.
Simply put, when the plaintiff signed the Membership Addendum, he assented to all the terms contained in the original agreement signed by his wife.
Even better the court stated, “It was incumbent upon Hembree [plaintiff] to read the contract and apprise himself of the terms to which he assented.”
Another issue raised by the plaintiff was the release violated the Georgia Fair Business Practices Act (O.C.G.A. § 10-1-393.2). The plaintiff failed to preserve the issue for appeal; however, the court did review the issue.
A health club membership does not violate public policy or violate the Georgia Fair Business Practices Act.
A contracting party may waive or renounce that which the law has established in his favor, provided doing so does not injure others or affect the public interest. O.C.G.A. § 1-3-7. It is well settled that public policy does not prohibit the inclusion of an exculpatory clause, like the one at issue here, in a health club membership.
So Now What?
Normally, a court looks at a release or waiver as a personal contract with a third party. No one can sign away the right to sue of another unless they are legally allowed to do so through a Power of Attorney or as a guardian.
In this case, the court looked at the relationship between the person who signed the original agreement and the person signing the addendum. The addendum specifically referred to the original agreement by a number.
Do not ever rely on this case to have a non-signor on a release held to a release. Always get a signature. In this case, it would have only taken a few more minutes to hand the plaintiff a release and have him read and sign the document.
 James H. “Jim” Moss |
Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, and outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers, avalanche beacon manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management
Outdoor Recreation Insurance, Risk Management, and Law
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
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Hembree v. Johnson et al., 224 Ga. App. 680; 482 S.E.2d 407; 1997 Ga. App. LEXIS 182; 97 Fulton County D. Rep. 622
Posted: November 11, 2013 Filed under: Georgia, Health Club, Legal Case, Release (pre-injury contract not to sue) | Tags: Addendum, Douglasville Health & Athletic Club, Fitness Club, Georgia, Gordon Johnson, Gym, Health club, Hembree, James Haddle d/b/a Douglasville Health & Athletic Club, Public Policy, Release, Summary judgment, Waiver Leave a commentTo Read an Analysis of this decision see: Wife signed release, husband signed addendum to release and was held to the exculpatory clause in the release
Hembree v. Johnson et al., 224 Ga. App. 680; 482 S.E.2d 407; 1997 Ga. App. LEXIS 182; 97 Fulton County D. Rep. 622
Hembree v. Johnson et al.
A97A0034.
COURT OF APPEALS OF GEORGIA
224 Ga. App. 680; 482 S.E.2d 407; 1997 Ga. App. LEXIS 182; 97 Fulton County D. Rep. 622
February 14, 1997, Decided
PRIOR HISTORY: [***1] Slip and fall. Douglas Superior Court. Before Judge James.
DISPOSITION: Judgment affirmed.
COUNSEL: Akin & Tate, S. Lester Tate III, for appellant.
Chambers, Mabry, McClelland & Brooks, Rex D. Smith, Ian R. Rapaport, for appellees.
JUDGES: Judge Harold R. Banke. Pope, P. J., and Johnson, J., concur.
OPINION BY: Harold R. Banke
OPINION
[*680] [**408] Judge Harold R. Banke.
Terrell L. Hembree sued Gordon Johnson and James Haddle d/b/a Douglasville Health & Athletic Club (collectively “Johnson”) to recover damages relating to a knee injury allegedly sustained in a slip and fall on a racquetball court. Hembree appeals the trial court’s adverse summary judgment ruling.
Johnson moved for summary judgment relying primarily on exculpatory language contained in a membership agreement. The record shows that Melissa Hembree completed and signed joint Membership Agreement No. 13217 on which she listed Terrell Hembree, her husband, as a family member. The first section in the contract provides, “I agree to use the Health and Athletic Club in accordance with the Rules and Conditions printed on the reverse side.” Melissa Hembree signed the Rules and Conditions document which contains certain exculpatory provisions requiring a member [***2] to: (1) assume any risk occasioned by the use of the facilities, and (2) forever release and discharge the corporate owner of the club, and any affiliated companies and/or its agents and employees from liability for claims arising out of the use of the facilities. Several months after the joint membership expired, Terrell Hembree signed a Membership Addendum to obtain an individual membership. The Membership Addendum states, “I herewith modify my original membership agreement No. 13217 dated 4-14-92 as stated herein.” The only pertinent change in the addendum altered [*681] the joint membership to an individual one. During the time Hembree had an individual membership, he allegedly slipped and fell. Held:
1. We reject Hembree’s contention that summary judgment was precluded by the existence of a material issue of disputed fact as to whether he assented to the waiver. [HN1] The construction of a written contract is a question of law for the trial court unless after the court applies the applicable rules of construction, ambiguity remains. O.C.G.A. § 13-2-1; Binswanger Glass Co. v. Beers Constr. Co., 141 Ga. App. 715, 716 (1) (234 S.E.2d 363) (1977). This is not such a situation. When Hembree [***3] signed the Membership Addendum, he specifically assented to all the terms contained in Membership Agreement No. 13217, which was incorporated by reference in the Membership Addendum. [HN2] Incorporation by reference is generally effective to accomplish its intended purpose where, as here, the reference has a reasonably clear and ascertainable meaning. Binswanger, 141 Ga. App. at 717 (2). Hembree was bound by the terms and conditions of the contract that he signed including the Rules and Conditions giving effect to the waiver. It was incumbent upon Hembree to read the contract and apprise himself of the terms to which he assented. Conklin v. Liberty Mutual Ins. Co., 240 Ga. 58, 59 (239 S.E.2d 381) (1977); Lovelace v. Figure Salon, 179 Ga. App. 51, 53 (1) (345 S.E.2d 139) (1986). Having shown the absence of any genuine issue of material fact, Johnson was entitled to summary judgment as a matter of law. O.C.G.A. § 9-11-56 (c).
2. Hembree enumerates as errors an alleged violation of the Fair Business Practices Act (O.C.G.A. § 10-1-393.2) and an assertion that Johnson and Haddle are not [**409] agents and employees of the corporation as contemplated by the waiver language. Although Hembree [***4] claims that he raised these two issues during oral argument, he failed to provide a transcript of the summary judgment hearing. Hembree, as [HN3] the party alleging error, has the burden to show it affirmatively by the record. North Fulton Feed v. Purina Mills, 221 Ga. App. 576, 577 (472 S.E.2d 122) (1996). [HN4] Because Hembree failed to show that either of these issues was raised and argued below, they cannot be raised now for the first time. Auerbach v. First Nat. Bank of Atlanta, 147 Ga. App. 288, 290 (1) (B) (248 S.E.2d 551) (1978).
3. Notwithstanding Hembree’s argument to the contrary, we find no violation of public policy in the exculpatory clause at issue. [HN5] A contracting party may waive or renounce that which the law has established in his favor, provided doing so does not injure others or affect the public interest. O.C.G.A. § 1-3-7. It is well settled that public policy does not prohibit the inclusion of an exculpatory clause, like the one at issue here, in a health club membership. Day v. Fantastic Fitness, 190 Ga. App. 46 (1) (378 S.E.2d 166) (1989); My Fair Lady of Ga. v. Harris, 185 Ga. App. 459 (364 S.E.2d 580) (1987); Lovelace, 179 Ga. [*682] App. at 52 (1).
Judgment [***5] affirmed. Pope, P. J., and Johnson, J., concur.
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