(A Pennsylvania Perspective)
While liability waivers are essential for businesses to protect themselves against lawsuits stemming from patrons injured in an activity it provides, such as ski resorts, sports leagues and gyms, waivers not sufficiently formatted in a way that, despite bearing the patron’s signature, clearly places the patron on notice of its contents and its legal significance may not be legally enforceable. Such was the state of the waiver in the Pennsylvania Superior Court case Hinkal v. Gavin Pardoe & Gold’s Gym, 2015 Pa. Super. Unpub. LEXIS 1108 (April 24, 2015) where, due to the location, font and format of the liability waiver within the membership agreement signed by the plaintiff, the waiver did not put the plaintiff on notice that she had waived her right to recover in court for her injuries and she was able to recover therefrom.
The Hinkal case arose as a result of injuries sustained by the plaintiff, Melinda Hinkal, who alleged she sustained a serious neck injury while using a piece of exercise equipment at the gym owned by defendant Gold’s Gym and while under the supervision of her trainer, defendant Gavin Pardoe. At the beginning of her membership with Gold’s Gym, Hinkal signed a Membership Agreement with Gold’s Gym. The membership agreement was printed on a single, two-sided page in a carbon copy packet. The only signature line was located on the front side. In the paragraph immediately above the signature line, not distinct in font, font size, boldface, capital letters or set apart in any other way, the agreement states “[d]o not sign this agreement until you have read both sides. The terms on each side of this form are a part of this [a]greement.” On the reverse side are 13 additional terms, formatted in single spacing and printed in light gray ink on pink carbon paper. The waiver language is the 12th of the 13 terms and not differentiated in any manner from the surrounding paragraphs. This reverse side does not include any space for a signature or for initials where a signatory to confirm their acknowledgement of the additional terms; nor does the front side contain a space for a signatory to confirm his acceptance of the additional terms from the reverse. It was undisputed that the plaintiff did not read the waiver language on the reverse side of the agreement and no Gold’s Gym employee verbally advised her of the exculpatory clause contained therein.
The trial court granted the motion for summary judgment filed on behalf of Pardoe and Gold’s Gym enforcing the liability waiver in the Membership Agreement. Hinkal appealed, arguing that the waiver on the back page of the membership agreement she signed was not valid and not enforceable. The Superior Court agreed, reversing and remanding the matter back to the trial court.
In coming to this conclusion, the Superior Court relied on the case of Beck-Hummel v. Ski Shawnee, Inc., which held that an unread and unsigned exculpatory clause may be enforceable if the clause is sufficiently conspicuous such that a reasonable person would have been put on notice of its contents. Beck-Hummel set forth a three factors to analyze when reviewing liability waivers: 1) the placement of the exculpatory clause in the document, 2) the size of the clause’s print, and 3) whether the clause was highlighted by being printed in all capital letters or in a type style or color different from the remainder of the document.
Applying the three elements of the Beck-Hummel test, the Court emphasized the importance of the fact that the exculpatory clause was printed on the reverse of the one page document and not immediately proximate to the signature line. The font size of the exculpatory clause was not distinct from any of the other 12 terms on the reverse side nor was the font size of the sentence advising the plaintiff to read both sides of the agreement distinct from any of the surrounding text. Importantly, the undisputed fact that the plaintiff did not read the language of the membership agreement does not alter this analysis or the holding of the matter, because the format of the release in failing to advise the plaintiff she must read both sides or require her to initial acknowledging she has read both sides was not so conspicuous so as to put her on notice.
As this case shows, while business owners may rest easy knowing they have a liability waiver they believe will relieve them of any fault in the event a patron sustains an injury engaging in an activity on the premises, it is important to not only read, but analyze the format of the release again. Should the liability waiver not sufficiently give a signatory notice of its contents, by being set apart in formatting, font, font size, it may not sufficiently protect the business against lawsuits from which they may have previously anticipated immunity.