Opinion
CIVIL ACTION No. 02-2360-GTV
September 16, 2003
MEMORANDUM AND ORDER
Plaintiff Ki Ron Ko brings this diversity negligence and premises liability action against Defendant Bally Total Fitness Corporation, seeking recovery for injuries sustained while a business invitee in Defendant's Overland Park, Kansas facility. Plaintiff was burned by hot water coming out of a hose in a sauna at the facility. Defendant has moved for summary judgment on Plaintiffs claims (Doc. 28) based on waiver. Defendant claims that Plaintiff was bound by a waiver of liability provision in his membership agreement with Defendant. For the following reasons, the court determines that the waiver provision was effective, and grants Defendant's motion.
I. FACTUALBACKGROUND
The following facts are taken from the summary judgment record and are either uncontroverted or viewed in the light most favorable to the non-moving party's case. Immaterial facts and facts not properly supported by the record are omitted.
On July 6, 1993, Christian Hansen signed a retail installment contract to become a patron of Defendant Bally Total Fitness. The retail installment contract served as Mr. Hansen's membership agreement with Defendant. Paragraph Ten of the retail installment contract reads as follows:
10. WAIVER AND RELEASE You (Buyer, each Member and all guests) agree that if you engage in any physical exercise or activity or use any club facility on the premises, you do so at your own risk. This includes, without limitation, your use of the locker room, pool, whirlpool, sauna, steamroom, parking area, sidewalk or any equipment in the club facility and your participation in any activity, class, program or instruction. You agree that you are voluntarily participating in these activities and using these facilities and premises and assume all risk of injury, illness, damage or loss to you or your property that might result, including, without limitation, any loss or theft of any personal property. You agree on behalf of yourself (and your personal representatives, heirs, executors, administrators, agents and assigns) to release and discharge us (and our affiliates, employees, agents, representatives, successors and assigns) from any and all claims or causes of action (known or unknown) arising out of our negligence. This Waiver and Release of liability includes, without limitation, injuries which may occur as a result of (a) your use of any exercise equipment or facilities which may malfunction or break, (b) our improper maintenance of any exercise equipment or facilities, (c) our negligent instruction or supervision, and (d) you slipping and falling while in the facility or on the premises. You acknowledge that you have carefully read this Waiver and Release and fully understand that it is a release of liability. You are waiving any right that you may have to bring a legal action to assert a claim against us for our negligence.
The "Waiver and Release" paragraph is also referenced on Page One of the retail installment contract under a section titled "Notice to the Buyer," located just above the signature line:
NOTICE TO THE BUYER:
. . . .
WAIVER AND RELEASE: This Contract contains a WAIVER AND RELEASE in Paragraph 10 to which you will be bound.
Mr. Hansen eventually transferred his membership to Plaintiff. Plaintiff has stipulated in the pretrial order that he was aware that by assuming Mr. Hansen's membership, he would be standing in the shoes of Mr. Hansen with respect to the retail installment contract. But Plaintiff neither saw the retail installment contract signed by Mr. Hansen nor obtained or signed his own retail installment contract.
Upon assuming Mr. Hansen's membership, Plaintiff was first issued a temporary membership card and later a permanent membership card. Both cards contained the following language:
Use of card or club acknowledges agreement to comply with current club rules and written membership contract, including but not limited to the waiver and release of liability from any and all claims or causes of action arising out of our negligence for personal injury or theft of property.
Plaintiff was required to show his membership card when using any of Defendant's fitness centers. Plaintiff admits that he presented his membership card to an employee of Defendant each time he entered Defendant's facilities. Yet, Plaintiff also claims that he never read the writing on his membership card.
On April 11, 2001, Plaintiff was burned by hot water that came out of a hose in a sauna at Defendant's facility. Plaintiff then brought the instant claims against Defendant for negligence and premises liability.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Lack of a genuine issue of material fact means that the evidence is such that no reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52.The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. This burden may be met by showing that there is a lack of evidence to support the nonmoving party's case.Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party to show that there is a genuine issue of material fact left for trial. Anderson, 477 U.S. at 256. "[A] party opposing a properly supported motion for summary judgment may not rest on mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Id. Therefore, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Id. The court must consider the record in the light most favorable to the nonmoving party. Bee v. Greaves, 744 F.2d 1387, 1396 (10th Cir. 1984).
III. DISCUSSION
The touchstone issue before the court is whether Plaintiff waived the right to bring a legal action against Defendant. The court determines that he did, and grants Defendant's motion on such basis.Under Kansas law, a party may contract away responsibility for its own negligence, but only when it has been done in "clear and unequivocal" terms. Zenda Grain Supply Co. v. Farmland Indus., Inc., 894 P.2d 881, 888 (Kan.Ct.App. 1995). "[C]ontracts for exemption from liability for negligence are not favored by the law and . . . are strictly construed against the party relying on them." Cason v. Geis Irrigation Co., 507 P.2d 295, 299 (Kan. 1973) (citations omitted); see also Baker v. City of Topeka, 644 P.2d 441, 446 (Kan. 1982) (citation omitted). General language or all-inclusive language exempting a party from liability is insufficient. Johnson v. Bd. of County Comm'rs, 913 P.2d 119, 136 (Kan. 1996) (quoting Butters v. Consol. Transfer Warehouse Co., 510 P.2d 1269, 1273-74 (Kan. 1973)). The court should consider whether any limitation on liability is "`fairly and honestly negotiated and understandingly entered into,'" Belger Cartage Serv., Inc. v. Holland Constr. Co., 582 P.2d 1111, 1119 (Kan. 1978) (quoting 17 Am. Jur.2dContracts § 188), and may consider the totality of the circumstances surrounding the formation of the contract, id. at 1120. One consideration may be whether the non-drafting party "had knowledge of the [exculpatory] clauses by having them pointed out to him or the clauses themselves being conspicuous in the contract. . . ." Id.
Plaintiff advances four arguments why the court should conclude that he did not waive his right to bring suit against Defendant: (1) the exculpatory agreement was not, and could not have been, "fairly and honestly negotiated and understandingly entered into"; (2) there was no written assignment signed by all parties; (3) the injuries Plaintiff received were not those contemplated by the language of the exculpatory clause; and (4) the cases that Defendant cites in support of its motion are distinguishable and do not support enforcement of the exculpatory clause. The court does not find any of Plaintiff s arguments persuasive.
Plaintiff's first argument is belied by the fact that he admits awareness that he would be standing in the shoes of Mr. Hansen with respect to the retail installment contract. Plaintiff urges the court to consider the "totality of the circumstances" surrounding the contract, as allowed by Belger Cartage Service. Inc. The court has considered the totality of the circumstances and concludes that they do not bolster Plaintiffs case. Plaintiff never read the retail installment contract and apparently never asked to see it. Every time he entered Defendant's facility, he presented his membership card, which advised him in plain and clear language that use of the card acknowledged his agreement to comply with the waiver and release of liability provisions of the written membership contract. Failure to read an agreement is not an excuse for failing to comply with the agreement. Liggatt v. Employers Mut. Cas. Co., 46 P.3d 1120, 1125 (Kan. 2002) (citation omitted). "Kansas law has long held it to be `the duty of every contracting party to learn and know the contents of a contract before he signs and delivers it.'" Miner v. Farm Bureau Mut. Ins. Co., 841 P.2d 1093, 1102 (Kan.Ct.App. 1992) (quoting Bailey v. Talbert, 293 P.2d 220, 224 (1956)). The court determines that the waiver and release clause was conspicuous in the contract and that the language on the back of Plaintiffs membership cards was clear and unequivocal. Plaintiff cannot now claim that the contract was not "fairly and honestly negotiated and understandingly entered into" because he chose not to obtain a copy of the contract or read the back of his membership card.
Plaintiff's second argument has no support in the law. Plaintiff has not cited, and the court has not found, any Kansas case requiring an assignment of an interest in a health club membership to be in writing. Contra Commodore v. Armour Co., 441 P.2d 815, 820 (Kan. 1968) ("We are cognizant that no particular form is necessary to effect a valid assignment in Kansas."). Under the law of assignments, the assignee stands in the shoes of the assignor. OXY USA. Inc. v. Colo. Interstate Gas Co., 883 P.2d 1216, 1223 (Kan.Ct.App. 1994) (citations omitted). The uncontroverted fact is that Plaintiff was aware he would be standing in the shoes of Mr. Hansen. Mr. Hansen contracted away his right to sue Defendant for personal injury. When Plaintiff assumed Mr. Hansen's rights and obligations under the retail installment contract, he also assumed the limitation on liability.
Third, the court concludes that Plaintiffs injury falls squarely within the injuries contemplated by the exculpatory language. The retail installment contract specifically provides for waiver of liability for injuries arising out of the member's use of the sauna. It further indicates that the waiver applies to injuries which may occur as a result of "(a) your use of any exercise equipment or facilities which may malfunction or break, [or] (b) our improper maintenance of any exercise equipment or facilities. . . ." (emphasis added). Plaintiff alleges that he was injured as a result of Defendant's negligent actions with respect to a hose in the sauna. The court determines that the exculpatory clause applies to Plaintiff's injuries.
Finally, while the cases cited by Defendant may be distinguishable, the court determines that they still provide persuasive authority for enforcement of the exculpatory clause. Defendant has directed the court to two cases in support of its position, Lund v. Sally's Aerobic Plus, Inc., 93 Cal.Rptr.2d 169 (App. 2000), and Stokes v. Ballv's Pacwest, Inc., 54 P.3d 161 (Wash.Ct.App. 2002). In both cases, the court held that the language in Bally's retail installment contract, the same as that at issue in the instant case, effectively served as a waiver of liability.Lund, 93 Cal.Rptr.2d at 172; Stokes, 54 P.3d at 165. In Lund, the plaintiff was injured during a session with a personal trainer after the trainer negligently instructed her on how to use the incline bench press. 93 Cal.Rptr.2d at 170. The plaintiff had signed the retail installment contract, although she claimed that she had not read the waiver provisions. Id.
In Stokes, the plaintiff was injured when he slipped on a metallic plate embedded in a wooden basketball court. 54 P.3d at 162. The plaintiff had signed the retail installment contract several months before the accident but did not remember reading the waiver provisions. Id. at 162, 164. The Washington court reviewed the waiver provisions only to determine whether they were inconspicuous. Id. at 163. The court determined that "reasonable minds could not differ regarding whether the waiver and release provisions . . . were so inconspicuous that it was unwittingly signed." Id. at 164.
Plaintiff distinguishes Lund and Stokes because the plaintiffs in those cases actually signed a retail installment contract. Plaintiff also argues that the injuries in Lund and Stokes are clearly contemplated by the language in the exculpatory provision. Finally, Plaintiff argues that Kansas has a strong public policy disfavoring exculpatory clauses, while Washington and California do not.
The court agrees with Plaintiff that Lund and Stokes differ from the instant case in the identified ways. But the cases are still instructive. In both cases, the courts recognized that exculpatory language nearly identical to the language in the instant case served as an effective waiver and release. Lund, 93 Cal.Rptr.2d at 172; Stokes, 54 P.3d at 165. Neither court found the language confusing or overly broad, and both courts enforced the contracts against persons who neglected to read the language. Lund, 93 Cal.Rptr.2d at 170; Stokes, 54 P.3d at 164. While this court does not rely solely on Lund and Stokes in enforcing the exculpatory clause, the cases do support the result this court reaches.
The court has also reviewed the case cited by Plaintiff, Belger Cartage Serv., Inc., and determines that it is not as instructive as Plaintiff suggests. Belger considered an exculpatory clause that was significantly different than that presented in Lund. Stokes, or the instant case. See Belger, 582 P.2d at 1115-16. The exculpatory language in Belger was printed in small font on the reverse side of a work order. Id. at 1115. There were no signatures or "personalized" information on the reverse side of the work order. Id. at 1120. The Kansas Supreme Court determined that the clause was unenforceable not solely because one party may not have had actual knowledge of the clause, but rather because of the totality of the circumstances surrounding the execution and performance of the contract. Id. For these reasons, Belger is distinguishable from the instant case.
IT IS, THEREFORE, BY THE COURT ORDERED that Defendant's motion for summary judgment (Doc. 28) is granted.
The case is closed.
Copies or notice of this order shall be transmitted to counsel of record.