Theresa A. Ladue v. Pla-Fit Health, LLC ( 2020 )

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Hillsborough-southern judicial district
No. 2019-0354
THERESA A. LADUE
v.
PLA-FIT HEALTH, LLC
Argued: June 10, 2020
Opinion Issued: October 30, 2020
Follender Law Offices, P.L.L.C., of Nashua (Richard C. Follender on the
brief and orally), for the plaintiff.
Wadleigh, Starr & Peters, P.L.L.C., of Manchester (Michael R. Mortimer
and Michael G. Eaton on the brief, and Mr. Eaton orally), for the defendant.
Welts, White & Fontaine, P.C., of Nashua (Israel F. Piedra on the brief
and orally), for New Hampshire Association for Justice, as amicus curiae.
BASSETT, J. The plaintiff, Theresa A. Ladue, was injured in a fall at a
gym in Nashua operated by the defendant, Pla-Fit Health, LLC (Planet Fitness).
Ladue brought a negligence claim against Planet Fitness. Planet Fitness moved
for summary judgment. The Superior Court (Temple, J.) granted the motion,
finding that Ladue’s claim was barred by a release of liability provision in her
membership agreement. Ladue now appeals. We affirm.
The record supports the following facts. In April 2017, Ladue entered
into a membership agreement with Planet Fitness. The agreement included a
liability release, which stated, in part: “I understand and voluntarily accept full
responsibility . . . for the risk of injury or loss arising out of or related to my
use . . . of the facilities,” and “I further agree that Planet Fitness . . . will not be
liable for any injury . . . resulting from the negligent conduct or omission of
Planet Fitness, PF Corporate, or anyone acting on their behalf, whether related
to exercise or not.” (Emphases added.)
In September 2017, Ladue went to a Planet Fitness gym in Nashua.
After exercising on a treadmill, Ladue walked toward a trash bin to dispose of a
towel that she had used to wipe down the equipment. Ladue tripped and fell
on an “irregular and uneven walkway,” and her right arm “struck an
uncovered, unprotected bolt” extending from an interior chain link fence.
Ladue suffered a gash on her right arm and a broken wrist.
In 2018, Ladue brought this action, alleging that Planet Fitness was
negligent in maintaining its facility. Planet Fitness moved for summary
judgment. The trial court granted the motion, ruling that Ladue’s claim was
barred by the liability release. The court found that the release did not violate
public policy, and that the language of the release shielded Planet Fitness from
liability for Ladue’s injury. This appeal followed.
When reviewing a trial court’s entry of summary judgment, “[w]e review
de novo the trial court’s application of the law to the facts in its summary
judgment ruling.” Progressive N. Ins. Co. v. Concord Gen. Mut. Ins. Co., 151
N.H. 649, 652 (2005). “[W]e consider the affidavits and other evidence, and all
inferences properly drawn from them, in the light most favorable to the non-
moving party.” Lacasse v. Spaulding Youth Ctr., 154 N.H. 246, 248 (2006)
(quotation omitted). “If our review of the evidence does not reveal a genuine
issue of material fact, and if the moving party is entitled to judgment as a
matter of law, we will affirm the trial court’s decision.” Amica Mut. Ins. Co. v.
Mutrie, 167 N.H. 108, 111 (2014) (quotation omitted).
“This court will not enforce an exculpatory contract that contravenes
public policy.” Wright v. Loon Mt. Recreation Corp., 140 N.H. 166, 169 (1995).
“Once an exculpatory agreement is found unobjectionable as a matter of public
policy,” Barnes v. N.H. Karting Assoc., 128 N.H. 102, 107 (1986), we will
enforce the agreement if “the plaintiff understood the import of the agreement
or a reasonable person in his position would have understood the import of the
agreement.” McGrath v. SNH Dev., 158 N.H. 540, 542 (2009) (quotation
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omitted). The plaintiff’s claims must also have been “within the contemplation
of the parties when they executed the contract.” Id. (quotation omitted).
When a defendant asserts that a plaintiff’s claim is barred by an
exculpatory agreement, the defendant “must show that [the] exculpatory
agreement does not contravene public policy; i.e., that no special relationship
existed between the parties and that there was no other disparity in bargaining
power.” Id. at 543 (quotation omitted). “We have found an agreement to be
against public policy if, among other things, it is injurious to the interests of
the public, violates some public statute, or tends to interfere with the public
welfare or safety.” Id.
On appeal, Ladue raises two primary arguments. First, she argues that
the trial court erred in enforcing the liability release because the release
violates public policy. Second, she argues that even if the release does not
violate public policy, it is unenforceable because a reasonable person would not
understand it to shield Planet Fitness from liability for the injury that she
suffered.
We first address Ladue’s argument that the release violates public policy
because a special relationship exists between her and Planet Fitness, such that
the agreement is prohibited. Ladue asserts that, because any member of the
public may join the gym, Planet Fitness is open to the public and, therefore, a
special relationship exists between Planet Fitness and each of its members.
Planet Fitness counters that, because the gym does not provide an essential
service, and does not fall within any of the commonly-recognized classes of
persons charged with special duties to their patrons, it does not have a special
relationship with Ladue. We agree with Planet Fitness.
In New Hampshire, “a special relationship exists where the defendant is a
common carrier, innkeeper or public utility, or is otherwise charged with a duty
of public service.” Id. at 544 (quotation and brackets omitted). A special
relationship also exists if the defendant provides a service that is “of great
importance to the public,” or is “a matter of practical necessity.” Barnes, 128
N.H. at 108; see also McGrath, 158 N.H. at 544. Additionally, a special
relationship may exist when the plaintiff is both dependent on and legally
compelled to use the defendant’s services. See Marquay v. Eno, 139 N.H. 708,
717 (1995) (ruling that a special relationship exists between schools and
students because of the compulsory nature of school attendance, the reliance
of parents and students on schools to provide a safe environment, and the
critical importance of education to society).
Accordingly, whether such a special relationship exists turns largely on
the importance and necessity of the services provided by the defendant, and
not, as Ladue suggests, on whether a facility is open to the public. As we
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explained in McGrath, “the fact that [a recreational facility] is available for
public use is not dispositive of a special relationship.” McGrath, 158 N.H. at
544. In fact, we have held that, because a given recreational activity was not of
great importance or necessity, no special relationship existed between a
recreational facility and members of the public using the facility. See Barnes,
128 N.H. at 106, 108 (finding no special relationship between a go-kart racing
facility that served “a segment of the public” and a racer who used the facility);
McGrath, 158 N.H. at 544 (finding no special relationship between a ski facility
that was open for public use and a snowboarder who used the facility).
Here, as in McGrath and Barnes, we cannot say that the recreational use
of a private gym is of such great importance or necessity to the public that it
creates a special relationship, such that the release is prohibited as against
public policy. See McGrath, 158 N.H. at 544; Barnes, 128 N.H. at 106, 108.
Exercising at a private gym is not a matter of practical necessity. See, e.g.,
Massengill v. S.M.A.R.T., 996 P.2d 1132, 1133, 1136 (Wyo. 2000) (stating that
services offered by personal training facility “did not affect the public interest
nor could they be considered as necessary or essential”); Seigneur v. National
Fitness, 752 A.2d 631, 640 (Md. Ct. Spec. App. 2000) (stating that “[t]he
services offered by a health club are not of great importance or of practical
necessity to the public as a whole”); Shields v. Sta-Fit, Inc., 903 P.2d 525, 528
(Wash. Ct. App. 1995) (stating that, although “[m]embership in a health club is
certainly beneficial . . . that is a far cry from declaring health clubs an
indispensable necessity as a matter of public policy”). Nor is using a private
gym compulsory. See Marquay, 139 N.H. at 717; Dupont v. Aavid Thermal
Technologies, 147 N.H. 706, 710-11 (2002) (distinguishing Marquay, and
finding no special relationship between employers and employees because
employment is not compulsory, and employers, unlike schools, do not act as
parental proxies). Therefore, because use of a private gym is neither a
necessity nor a service of great importance to the public, and since it is
undisputed that Planet Fitness is not “a common carrier, innkeeper or public
utility, or . . . otherwise charged with a duty of public service,” McGrath, 158
N.H. at 544 (quotation omitted), we conclude that no special relationship exists
between Ladue and Planet Fitness that would cause the liability release to be
prohibited as against public policy.
Next, Ladue argues that the release violates public policy because it
undermines public safety. This argument has two parts. First, Ladue asserts
that, because she was not actually exercising at the time of her injury, her
injury is not related to her use of the fitness center. She contends that she
“was merely walking on the uneven floor when she fell,” and that her injury
could have occurred in any business setting. She then argues that, because
her injury is not directly connected to her use of the fitness center, this case
implicates the broader issue of whether a business that is open to the public
may absolve itself from responsibility for maintaining its premises in a
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reasonably safe condition. Ladue asserts that public policy, as reflected in New
Hampshire case law, prohibits a business that is open to the public from
insulating itself from liability for negligence in maintaining its premises. For
several reasons, we disagree.
First, we reject the premise of Ladue’s argument regarding public safety:
that, because she was not actually exercising at the time of her accident, her
injury is not connected to her use of the gym. In fact, Ladue’s injury is more
related to her use of the fitness center than she suggests because, contrary to
her assertion, she was not “merely walking” when she fell. Rather, as she
acknowledged in an affidavit submitted to the trial court, when Ladue fell, she
was walking toward a trash bin to dispose of a towel that she had just used to
clean the treadmill on which she had exercised. Simply put, at the time of her
injury, Ladue was finishing the process of using the treadmill. Her injury,
therefore, was actually connected to her use of the gym. We note that
numerous courts have concluded that, even if an injury occurs while a gym
member is not actually exercising, an exculpatory agreement does not violate
public policy. See Toro v. Fitness Intern. LLC, 150 A.3d 968, 971, 973-74 (Pa.
Super. Ct. 2016) (finding that exculpatory agreement did not violate public
policy, where gym member alleged that he slipped and fell on an “unusual
buildup” of “soapy water” in gym locker room); Benedek v. PLC Santa Monica,
LLC, 129 Cal. Rptr. 2d 197, 200-01, 204 (Ct. App. 2002) (finding that
exculpatory agreement did not violate public policy, where gym member was
injured after television mounted above an exercise machine slid off its base
when member tried to adjust the television); Owen v. Vic Tanny’s Enters., 199
N.E.2d 280, 281-82 (Ill. App. Ct. 1964) (ruling that exculpatory agreement did
not violate public policy, where member of exercise facility slipped and fell
while leaving facility’s swimming pool).
Second, even if we were to accept the factual premise of Ladue’s public
safety argument — that her injury is not connected to her use of the fitness
center — we would still not be persuaded. New Hampshire case law does not,
as Ladue contends, categorically prohibit a business that is open to the public
from insulating itself from liability for negligence in maintaining its premises.
In arguing to the contrary, Ladue relies on Valenti v. NET Properties
Management, 142 N.H. 633 (1998), Tanguay v. Marston, 127 N.H. 572 (1986),
and Papakalos v. Shaka, 91 N.H. 265 (1941). However, that reliance is
misplaced. In Papakalos, a tenant was injured while descending the stairs in
his apartment building. See Papakalos, 91 N.H. at 265. The tenant brought a
claim against his landlord, alleging that the landlord had been negligent in
maintaining the stairs. See id. The landlord argued that he was insulated
from liability because, in consideration for reduced rent, the tenant had agreed
to absolve him of liability for injuries caused by the apartment’s poor condition.
See id. at 266. Notably, there was “no evidence of any explicit [exculpatory]
agreement” between the parties. Id. at 267. We observed, in dicta, that, even if
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there had been such an agreement, it would have been unenforceable because
of “our rule that one may not by contract relieve himself from the consequences
of the future nonperformance of his common-law duty to exercise ordinary
care.” Id. at 268.
Notwithstanding this unqualified language, the categorical prohibition on
exculpatory agreements alluded to in Papakalos is not the law today. See
McGrath, 158 N.H. at 541, 543-45 (ruling that exculpatory agreement did not
violate public policy, where snowboarder at ski facility was injured in a
collision with a snowmobile driven by a facility employee); Barnes, 128 N.H. at
105-06, 108 (ruling that exculpatory agreement did not violate public policy,
where go-kart racer was injured at racing facility when he collided with a
disabled kart during a practice lap). Today, Papakalos stands for the narrow
proposition that exculpatory agreements pertaining to premises liability are
prohibited in the context of rental housing because the landlord-tenant
relationship is, itself, a special relationship. Cf. Kline v. Burns, 111 N.H. 87,
92-93 (1971) (establishing an implied warranty of habitability in every
residential lease on the basis of public policy). Indeed, in Tanguay, we
explained that when “the parties to a contract are free to make their own
bargain, and no special relationship (such as landlord-tenant or common
carrier-passenger) exists between them, a clause fully exculpating one party for
property damage due to its negligence in the performance of a contract is valid
and will be enforced.” Tanguay, 127 N.H. at 577. Here, in contrast to
Papakalos, no special relationship exists.
To the extent that Ladue cites Tanguay for the broad proposition that a
business that is open to the public may not insulate itself from premises
liability, that case is inapposite, as it addresses the question of whether an
exculpatory clause in a commercial lease is enforceable against a nonparty to
the lease. See id. at 578. Here, Ladue is a party to the liability release.
Nor does Valenti address the enforceability of an exculpatory agreement
between a business and its customer. See Valenti, 142 N.H. at 634-36.
Rather, it involves an issue not relevant here: whether the possessor of a
business premise who hires an independent contractor to maintain the
property may be vicariously liable for the contractor’s negligence. See id.
Finally, Ladue argues that the liability release violates public policy
because it relieved Planet Fitness of liability for negligently failing to comply
with applicable building codes. See RSA ch. 155-A (2014 & Supp. 2019); RSA
674:51 (2016). We disagree, because, as we explained in McGrath, “[t]he fact
that an exculpatory agreement waives the right to bring a negligence action
arising out of an activity that is regulated by statute is not determinative of a
public policy violation.” McGrath, 158 N.H. at 543. In McGrath, although the
plaintiff argued that the release violated public policy because it relieved the
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defendant from complying with state safety laws pertaining to snowmobile
operation, we reasoned that the release did not violate public policy because
“[t]he plaintiff’s waiver of negligence claims . . . ha[d] no effect upon the
enforcement of the statute.” Id. We observed that, irrespective of the liability
release, the State was charged with enforcing the statute, and therefore “the
interests of the public [were] protected by the State’s ability to enforce the
statute.” Id. Here, as in McGrath, irrespective of the liability release, the
interests of the public are adequately protected because towns and cities have
the authority to enforce the state building code and local regulations pertaining
to the construction and maintenance of buildings. See RSA 155-A:7 (2014);
RSA 674:51. This enforcement authority includes the authority to assess fines
and seek injunctive relief. See RSA 155-A:8 (2014); RSA 676:15, :17 (2016).
Accordingly, for the reasons set forth above, we conclude that the liability
release in the membership agreement signed by Ladue does not violate public
policy.
Having determined that the release does not violate public policy, we now
turn to the issue of whether Ladue’s claim falls within the scope of the release.
See McGrath, 158 N.H. at 545; Barnes, 128 N.H. at 109. Ladue argues that,
even if the release is not prohibited as against public policy, it is unenforceable
because a reasonable person would not understand it to shield Planet Fitness
from liability for the particular injury that she suffered. We disagree.
To determine the scope of a liability release, we examine its language.
Dean v. MacDonald, 147 N.H. 263, 267 (2001). “In interpreting a release, we
give the language used by the parties its common meaning and give the
contract itself the meaning that would be attached to it by a reasonable
person.” McGrath, 158 N.H. at 545 (quotation omitted). The terms of a liability
release “are strictly construed against the defendant.” Barnes, 128 N.H. at
107. However, “[a]s long as the language of the release clearly and specifically
indicates the intent to release the defendant from liability for personal injury
caused by the defendant’s negligence, the agreement will be upheld.” McGrath,
158 N.H. at 545 (quotation omitted).
Ladue argues that a reasonable person would understand the release to
be of limited scope, releasing Planet Fitness from liability only for injuries
sustained while actually using exercise equipment or participating in exercise
programs. Observing that the release does not specifically release Planet
Fitness for claims arising out of maintenance of the premises, she argues that
a reasonable person would not understand the agreement to release Planet
Fitness from liability for a “slip and fall” injury suffered while walking through
the facility. However, “the parties need not have contemplated the precise
occurrence that caused the plaintiff’s injuries,” Dean, 147 N.H. at 267, and
they “may adopt language to cover a broad range of accidents by specifying
injuries involving negligence on the part of the defendants,” id. (quotation and
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ellipsis omitted). Accordingly, the language of the release need not refer to the
precise injury that actually occurred in order for the defendant to be released
from liability. See McGrath, 158 N.H. at 542, 545-46 (ruling that exculpatory
agreement releasing ski facility from “any and all liability for personal injury or
property damage which results in any way from negligence” applied when
snowboarder was injured in a collision with a snowmobile driven by a facility
employee (quotation omitted)); Dean, 147 N.H. at 266-68 (ruling that
exculpatory agreement releasing racing facility from liability “for any and all
loss or damage . . . caused by the negligence of the [facility]” applied when
plaintiff signed release in order to enter pit area at race track, and was
subsequently struck by race car while crossing the track (quotation omitted)).
Here, the release is extremely broad: it states that “Planet Fitness . . . will
not be liable for any injury . . . resulting from the negligent conduct or
omission of Planet Fitness, PF Corporate, or anyone acting on their behalf,
whether related to exercise or not.” (Emphases added.) Nevertheless, Ladue
argues that the scope of the release is narrowed by the fact that she explicitly
“accept[s] full responsibility” for the risk of injuries “arising out of or related to
[her] use . . . of the facilities including, without limitation, exercise equipment,
tanning, massage beds/chairs, and participation in . . . exercise programs or
use of other services, equipment and/or programs offered to members.”
Relying on Wright v. Loon Mt. Recreation Corp., Ladue contends that this
language would cause a reasonable person to interpret the release as releasing
Planet Fitness from liability only for injuries suffered while actually using
exercise equipment or participating in exercise programs. We disagree.
Ladue’s reliance on Wright is misplaced. In that case, a horseback rider
at an equestrian center was injured when she was kicked by her guide’s horse
during a riding tour. See Wright, 140 N.H. at 167-68. We held that the rider’s
negligence claim against the center was not barred by the liability release that
she had signed before the tour. See id. at 167-68, 170-71. We focused on the
language of the release, which detailed the risks involved with horseback
riding, including the risks related to the selection of the rider’s horse and the
“use of this animal.” Wright, 140 N.H. at 171 (quotation omitted); see also
McGrath, 158 N.H. at 546-47 (recounting the language of the release and
explaining our decision in Wright). The release further stated that the center
would be released “FROM ANY AND ALL LIABILITY FOR DAMAGES AND
PERSONAL INJURY . . . RESULTING FROM THE NEGLIGENCE OF LOON
MOUNTAIN RECREATION CORPORATION TO INCLUDE NEGLIGENCE IN
SELECTION, ADJUSTMENT OR ANY MAINTENANCE OF ANY HORSE.”
Wright, 140 N.H. at 168 (emphasis added). We concluded that the release was
“less than clear” as to whether it insulated the center from liability for injuries
specifically caused by the behavior of a guide’s horse because “[t]he paragraphs
preceding the exculpatory clause emphasize[d] the inherent hazards of
horseback riding.” Id. at 170. “Because the exculpatory clause [was] prefaced
8
by the term ‘therefore,’ a reasonable person might [have] underst[ood] its
language to relate to the inherent dangers of horseback riding and liability for
injuries that occur for that reason.” Id. (quotation omitted). We found that the
exculpatory clause was “further clouded by the qualifying language that
follow[ed],” id., and ultimately concluded that the contract “lack[ed] a
straightforward statement of the defendant’s intent to avoid liability for its
failure to use reasonable care in any way,” id. at 171-72 (emphasis added).
Here, in contrast to Wright, the release is not “obscured by qualifying
terms and phrases.” Id. at 171. The exculpatory agreement provides that
Planet Fitness shall be released from liability for “any injury” caused by its
negligence, “whether related to exercise or not,” unambiguously insulating
Planet Fitness from liability for all injuries involving negligence on the part of
the gym. Accordingly, we conclude “that a reasonable person would have
contemplated that the agreement[] released the defendant[] from any
negligence,” not just from negligence inherent in the active use of exercise
equipment or active participation in exercise programs. McGrath, 158 N.H. at
547.
In sum, because we have found that the liability release in the
membership agreement signed by Ladue does not violate public policy, and
that a reasonable person would understand the release to shield Planet Fitness
from liability for the particular injury that she suffered, we conclude, as the
trial court did, that Ladue’s negligence claim is barred by the release.
Accordingly, we affirm the trial court’s entry of summary judgment.
Affirmed.
HICKS, HANTZ MARCONI, and DONOVAN, JJ., concurred.
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