30 Dec Gym Patron Can Sue Fitness Center For Fractured Ankle Despite Exculpatory Contract Provision

Yesterday the Colorado Court of Appeals in Stone v. Life Time Fitness, Inc., et al., No. 15CA0598, 2016COA189 found a patron of Life Time Fitness was not contractually barred from suing the gym, based on assumption of risk and liability release language contained in her member usage agreement (Agreement) that she signed when she became a gym member.

Specifically, the appeals court reversed the judgment in part, disagreeing with the district court’s conclusion that the exculpatory provisions of the Agreement were valid as applied to the gym patron’s Premises Liability Act (PLA) claim. The PLA provides the sole remedy against landowners for injuries on their property and defines the liability of such landowners based on the “condition of such property, or activities conducted or circumstances existing on such property.”

The gym patron, Mrs. Stone, sought recovery for personal injuries sustained after a workout, when she tripped on a hair dryer cord after washing her hands in the women’s locker room. Mrs. Stone alleged she had washed her hands at a locker room sink and then “turned to leave when she tripped on the blow dryer cord that was, unbeknownst to her, hanging to the floor beneath the sink and vanity counter top.” She caught her foot in the cord and fell to the ground, fracturing her right ankle.

Lower District Court

Mrs. Stone contended that allowing the blow dryer cord to hang below the sink counter was a trip hazard and a dangerous condition and that, by allowing the condition to exist, Life Time failed to exercise reasonable care. The law suit asserted a general negligence claim and also a claim under Colorado’s PLA, section 13-21-115, C.R.S. 2016. Life Time moved for summary judgment based on assumption of risk and liability release language contained in the Agreement Mrs. Stone signed when she joined Life Time. Specifically, Life Time argued the Agreement expressly covered the type and circumstances of her injuries and as such barred Mrs. Stone’s claims as a matter of law. The district court granted Life Time’s motion, finding the Agreement was “valid and enforceable” and that Mrs. Stone had released Life Time from all the claims asserted in the complaint. Notably, the trial court ruled in favor of Life Time, without distinguishing between Mrs. Stone’s negligence and PLA claims.

Court of Appeals

On appeal, Mrs. Stone did not dispute that the exculpatory language in the Agreement precluded her from asserting claims under the PLA for any injuries she might sustain when working out on a treadmill, stationary bicycle, or other exercise equipment or playing racquetball, but argued the exculpatory clauses did not clearly and unambiguously apply to her injuries incurred after washing her hands in the women’s locker room.

The court of appeals agreed with Mrs. Stone. Noting that “exculpatory agreements have long been disfavored,” the court closely scrutinized the Agreement to ensure that the intent of the parties was expressed in clear, unambiguous, and unequivocal language by examining four factors “(1) the existence of a duty to the public; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties was expressed in clear and unambiguous language.” Jones v. Dressel, 623 P.2d 370, 375 (Colo. 1981).

Fourth Jones Factor Determinative 

While the court found for the gym on the first three Jones factors, the case turned for the gym patron on the fourth Jones factor–whether the intention of the parties is expressed in clear and unambiguous language. The court of appeals found the Agreement failed this test because the Agreement contained “extremely dense fine print” for which most people “would require a magnifying glass or magnifying reading glasses.” It also found the applicable provisions “replete with legal jargon, using phrases and terms such as ‘affiliates, subsidiaries, successors, or assigns’; ‘assumption of risk’; ‘inherent risk of injury’; ‘includes, but is not limited to’; and ‘I agree to defend, indemnify and hold Life Time Fitness harmless.’

In addition, it found Life Time’s reliance on two clauses bearing the heading: “under Chapter 458, 459, 460, or Chapter 461 ASSUMPTION OF RISK” ambiguous and confusing to the average lay person because “they would have no reason to understand that chapters 458, 459, 460, or 461 had any relevance to their situation.” Also, the court found the focus of the Agreement was on the “risks of strenuous exercise and use of exercise equipment at the fitness center,” not on risks of injuries sustained in the locker room.

Lastly, the court noted that the term “inherent risk of injury” that appears in the assumption of risk clause has been applied in various Colorado statutes and case law to address waivers of liability only for activities that are dangerous or potentially dangerous, such as activities involving horses and llamas, section 13-21-119, C.R.S. 2016; being a spectator at baseball games, section 13-21-120, C.R.S. 2016; agricultural recreation or agritourism activities (including hunting, shooting, diving, and operating a motorized recreational vehicle on or near agricultural land), section 13-21-121, C.R.S. 2016; skiing, section 33-44-109, C.R.S. 2016; and spaceflight activities, section 41-6-101, C.R.S. 2016. None of these statutory exemptions applied to accidents occurring in more common situations such as locker rooms, rest rooms, or dressing rooms.

Broad Release Language Held Against Life Time

Life Time argued that the only relevant language the court need consider was in the second exculpatory clause, labeled “RELEASE OF LIABILITY,” which stated the gym patron agreed to “waive any and all claims or actions that may arise against Life Time . . . as a result of any such injury.” The court however found this language was not enough because it was “the first use of the term ‘injury’ in the release of liability clause,” which meant the scope of the release could only be determined by referring back to the assumption of risk clause which the court found was confusing. The court noted that even Life Time’s counsel found the language “squirrely.”

The court of appeals concluded its analysis by addressing the exculpatory clauses’ repeated use of the phrases “includes, but is not limited to” and “including and without limitation,” as well as simply “including.” It found the repeated use of these phrases made the clauses more confusing, leaving the reader to guess whether the phrases have different meanings. Colorado courts are conflicted as to whether such language is expansive or restrictive. This ambiguity was critical to the court’s analysis because the Agreement never referred to the risks of using sinks or locker rooms. Referencing another case where Life Time was sued on a similar matter, it found that if Lifetime has intended to exclude accidental injuries occurring in locker rooms, it would have drafted a clear waiver of liability, like it did in the case of Geczi v. Lifetime Fitness, 973 N.E.2d 801, 803 (Ohio Ct. App. 2012). That case involved a membership agreement drafted eleven years before Mrs. Stone entered into the Agreement.

Ultimately, the court found that “[i]n light of this statutory and case law backdrop, the use of the inherent risk language in the assumption of risk clause, and the Agreement’s focus on the use of exercise equipment and facilities and physical injuries resulting from strenuous exercise, one could reasonably conclude that by signing the Agreement he or she was waiving claims based only on the inherent risks of injury related to fitness activities, as opposed to washing one’s hands.”