IN COURT OF APPEALS
Tammey J. Anderson,
f/k/a Tammey J. Blazjak, et al.,
McOskar Enterprises, Inc. d/b/a Curves for Women,
Filed May 2, 2006
Wright County District Court
File No. C2-04-2957
Amy L. Baumgarten, Martin T. Montilino, Borkon, Ramstead, Mariani, Fishman & Carp, 5401 Gamble Drive, Suite 100, Minneapolis, MN 55416 (for appellants)
Patrick J. Sauter, Kathleen M.
Daly, Rider Bennett LLP,
Considered and decided by Stoneburner, Presiding Judge; Shumaker, Judge; and Dietzen, Judge.
S Y L L A B U S
1. Parties to a contract may protect themselves against liability for negligence if the release language is unambiguous in scope and does not contravene public policy.
2. A release that purports to exonerate the benefited party from liability for “any act or omission, including negligence,” is not ambiguous as to negligence despite broad additional language.
3. A fitness club’s requirement that members sign a release of liability for negligence does not contravene public policy because such clubs are not engaged in a necessary public service and fitness services are widely obtainable elsewhere.
O P I N I O N
When appellant registered to become a member of respondent health and fitness club, she signed a release of liability of the club for injuries from “any act or omission, including negligence.” Appellant was injured and sued respondent for damages for negligence. Respondent moved for summary judgment on the ground that appellant had released it from liability for negligence. The district court granted the motion. Appellant contends that the release is unenforceable because it is ambiguous in scope and contravenes public policy. The district court did not err in granting summary judgment.
McOskar Enterprises, Inc. owns and operates a fitness and health club in
part of the registration requirements,
In consideration of being allowed to participate in the activities and programs of Curves for Women® and to use its facilities, equipment and machinery in addition to the payment of any fee or charge, I do hereby waive, release and forever discharge Curves International Inc., Curves for Women®, and their officers, agents, employees, representatives, executors, and all others (Curves® representatives) from any and all responsibilities or liabilities from injuries or damages arriving [sic] out of or connected with my attendance at Curves for Women®, my participation in all activities, my use of equipment or machinery, or any act or omission, including negligence by Curves® representatives.
second paragraph provided for
completing the registration,
pain persisted when
moved for summary judgment on the ground that
A fitness club required members to sign a release of liability of the club for “any act or omission, including negligence,” causing injury to a member. Appellant signed the release and thereafter was injured while using club equipment. She contends that the release is unenforceable because it is ambiguous in scope and it is a contract of adhesion that contravenes public policy.
Is the release legally enforceable?
It is settled
Releases of liability are
not favored by the law and are strictly construed against the benefited
Before enforcing an exculpatory clause, both prongs of the test are examined, to-wit: (1) whether there was a disparity of bargaining power between the parties (in terms of a compulsion to sign a contract containing an unacceptable provision and the lack of ability to negotiate elimination of the unacceptable provision) . . . and (2) the types of services being offered or provided (taking into consideration whether it is a public or essential service).
The two-prong test describes what is generally known as a “contract of adhesion,” more particularly explained in Schlobohm:
It is a contract generally not bargained for, but which is imposed on the public for necessary serviceon a “take it or leave it” basis. Even though a contract is on a printed form and offered on a “take it or leave it” basis, those facts alone do not cause it to be an adhesion contract. There must be a showing that the parties were greatly disparate in bargaining power, that there was no opportunity for negotiation and that the services could not be obtained elsewhere.
Scope of the Release
Because there is no genuine
issue of material fact as to what the release provides, whether or not Anderson
read and signed it, whether or not she agreed to its terms, or the
circumstances under which she signed it, we are required to ascertain whether
the district court erred in its application of the law in granting summary
judgment in favor of the party benefited by the release. State
by Cooper v. French, 460 N.W.2d 2, 4 (
As held in Schlobohm, a release of liability will not be enforced if (1) it “purports to release the benefited party from liability for intentional, willful or wanton acts,” or (2) it is ambiguous in scope. Schlobohm, 326 N.W.2d at 923. There is nothing in the Curves release that expressly exonerates the club from liability for any intentional, willful, or wanton act. Thus, we consider whether the release is ambiguous in scope.
Whether an agreement is
ambiguous is a question of law. Blattner v. Forster, 322 N.W. 2d 319,
Although the supreme court in Schlobohm interpreted the release as applying only to acts of negligence, the language of the release was broader than that, purporting to release Spa Petite from
any claims, demands, injuries, damages, actions or causes of action, whatsoever, . . . and member does hereby . . . release . . . Spa Petite from all such claims, demands, injuries, damages, actions or causes of action, and from acts of active or passive negligence . . . .
Despite the breadth of the language of the Schlobohm release, it was clear that it exonerated acts of negligence on the part of Spa Petite because the release expressly so provided, and it was negligence of which Spa Petite was accused. The court held the release not to be ambiguous.
The vice of ambiguous
language is that it fails precisely and clearly to inform contracting parties
of the meaning of their ostensible agreement.
Because ambiguous language is susceptible of two or more reasonable
meanings, each party might carry away from the agreement a different and perhaps
contradictory understanding. In the
context of a release in connection with an athletic, health, or fitness
activity, the consumer surely is entitled to know precisely what liability is
being exonerated. A release that is so
vague, general, or broad as to fail to specifically designate the particular
nature of the liability exonerated is not enforceable.
The release here does not suffer from the infirmity of ambiguity despite its broad language any more than the broadly cast release in Schlobohm did. It is clear from this release that Anderson agreed to exonerate Curves from liability for negligence, that being part of the express agreement that Anderson accepted And it is solely negligence of which Curves is accused.
The unmistakable intent of
the parties to the Curves agreement is that Curves at least would not be held
liable for acts of negligence. The first
two paragraphs of the three-paragraph document focus specifically on
considerations of risk, voluntary acceptance of hazards, and waiver of
liability, thus evincing a mutual intention to agree to a release. Because the parties expressed a clear
intention to release liability and because that release clearly included
liability for negligence, that intention should be enforced. See
Metro. Sports Facilities Comm’n v. Gen. Mills, Inc., 470 N.W.2d 118, 123 (
The arguably ambiguous
portion of this release is not at issue.
It would subvert the parties’ manifested intent to effect a release of
liability for negligence if the broader language were given precedence. That would not be the better rule of
law: “A better interpretation of the law
is that any ‘term’ in a contract which attempts to exempt a party from
liability for gross negligence or wanton conduct is unenforceable, not the
entire [contract].” Wolfgang v. Mid-American Motorsports, Inc., 898 F. Supp. 783, 788
Even if a release is
unambiguously confined to liability for negligence, it still will be
unenforceable if it contravenes public policy.
But her argument is
unpersuasive in view of the Schlobohm holding
that “an adhesion contract is . . . forced upon an
unwilling and often unknowing public for services that cannot readily be
obtained elsewhere.” 326 N.W.2d at 924. It is, according to Schlobohm, a contract “imposed on the public for necessary service on a ‘take it or leave
Even if there was a disparity of bargaining ability here—which has not been demonstrated—there was no showing that the services provided by Curves are necessary and unobtainable elsewhere. Although fitness activities surely are desirable for most people, they cannot plausibly said to be necessary. And the availability of services ranges from highly structured and formal fitness programs at commercial clubs to one’s own basement or living room. Furthermore, specialized training by fitness experts is available through videotapes and compact discs that may be used at home if a person so chooses.
The Curves release did not
contravene public policy, and we adopt the supreme court’s conclusion in Schlobohm: “Here there is no special
legal relationship and no overriding public interest which demand that this
contract provision, voluntarily entered into by competent parties, should be
D E C I S I O N
The district court did not err in granting respondent’s motion for summary judgment on the ground that appellant signed and agreed to a release of respondent’s liability for negligence. We affirm.