SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
EILEEN ALLEN,
Plaintiff-Respondent,
v.
LA FITNESS INTERNATIONAL, LLC,
d/b/a LA FITNESS, USA, PT, LLC,
d/b/a BODY OF CHANGE,
Defendant-Appellant.
Argued May 9, 2011 – Decided June 15, 2011
Before Judges Grall, C.L. Miniman and LeWinn.
On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-1628-08.
Norman W. Briggs argued the cause for appellant (Briggs Law Office, attorneys; Mr. Briggs, Adrienne Chapman and Elizabeth Casey, on the brief).
Louis J. DeVoto argued the cause for respondent (Rossetti & DeVoto, attorneys Mr. DeVoto, on the brief).
PER CURIAM
Plaintiff Eileen Allen joined defendant LA Fitness International, LLC, and signed an agreement for personal training sessions with LA Fitness, USA, PT, LLC, doing business as Body of Change.1 Alleging simple negligence, Allen filed an action to recover damages from defendant for a shoulder injury she asserted was sustained as a consequence of performing an "unsafe exercise" at the direction of a trainer who had failed to assess her condition and needs. Relying on Allen's agreement to assume the risk of her activities with the personal trainer and her release and waiver of claims based on negligence related to that activity, defendant moved for a directed verdict at the close of Allen's case. The judge denied that application, and the jury found defendant negligent, awarding Allen $525,000. The judge subsequently denied defendant's motions for judgment notwithstanding the verdict and a new trial or remittitur. Defendant appeals.
Two days after defendant filed its notice of appeal, the Supreme Court issued its decision in Stelluti v. Casapenn Enterprises, 203 N.J. 286 (2010). The Court held that agreements between a gym and its patron limiting liability for "injuries sustained as a matter of negligence that result from a patron's voluntary use of equipment and participation in instructed activity" are enforceable. Id. at 313. Stelluti controls, and it requires reversal of the judgment and dismissal of Allen's complaint. Because we resolve the case with reference to the exculpatory clauses in the contract, we do not reach defendant's claims of trial error or objections to the verdict.
On September 22, 2005, Allen signed an agreement to join LA Fitness. When Allen went to the gym for the first time, she signed an eighteen-month contract for personal training. The following is printed at the bottom of the first page of the contract immediately above the signature line:
By signing this Agreement Client acknowledges that Client has read, understood and agreed with all terms and conditions of this agreement, after having the opportunity to have it reviewed by an attorney at the discretion of Client. Client further acknowledges Client has received a filled-in and completed copy of the agreement, which includes the EFT Request & Authorization, Client's Acknowledgment & Assumption of Risk, Limitation of Liability & Full Release of Body of Change, Client's Acceptance of Release and Waiver, and all additional Terms and Provisions located on the front and reverse side of the Agreement . . . .
[(Emphasis in original).]
The reverse side of the agreement includes the referenced acknowledgement and assumption of risk and the client's release and waiver.
Client's Acknowledgement & Assumption of Risk: Client acknowledges that the Services purchased hereunder include participation in strenuous physical activities, including, but not limited to, aerobic dance, weight training, stationary bicycling, various aerobic conditioning-machinery and possible various nutritional programs offered by BOC (the "Physical Activities"). Client acknowledges these Physical Activities involve the inherent risk of physical injuries or other damages, including, but not limited to, heart attacks, muscle strains, pulls or tears, broken bones, shin-splints, heat prostration, knee/lower back/foot injuries and any other illness, soreness, or injury however caused, occurring during or after Client's participation in the Physical Activities. Client further acknowledges that such risks, include, but are not limited to, injuries caused by the negligence of an
instructor. . . . Client agrees to assume all risk and responsibility involved with Client's participation in the Physical Activities. Client asserts that Client is capable of participating in Physical Activities. Client agrees to assume all risk and responsibility for Client exceeding his or her physical limits.
Limitation of Liability & Full Release of BOC: Client . . . agree[s] to fully release BOC, its owners, employees, and related entities or other authorized agents . . . from any and all liability, claims and/or litigation or other actions that Client may have for injuries . . . of any kind, including, but not limited to, direct, special, incidental, indirect, punitive or consequential damages, whether arising in tort, contract . . . or arising out of participation in the Services, including, but not limited to the Physical Activities, even if caused by the negligence or fault of BOC, its owners, employees, any related entities or other authorized agents, including independent contractors. Client is urged to have this Agreement reviewed by an attorney before signing.
[(Emphasis in original).]
There is no material difference between the foregoing paragraphs constituting Allen's assumption of risk and release and the assumption of risk and release executed by the plaintiff in Stelluti. Id. at 293. Accordingly, we conclude that the trial court erred in denying defendant's motion to dismiss at the close of Allen's case and its motion for judgment notwithstanding the verdict. Allen presents several arguments to provide alternative grounds for affirming the judgment. We turn to consider them.
Allen contends that this case is distinguishable from Stelluti because it involves a contract for a personal trainer. We disagree. The holding in Stelluti is stated broadly to include "participation in instructed activity." Id. at 313.
We agree with Allen that there are phrases in this assumption and waiver that can be read to exculpate defendant for gross negligence and reckless conduct that are not enforceable under the holding in Stelluti. Id. at 312-13. Nevertheless, we disagree with Allen's assertion that their presence renders the permissible portion of the waiver unenforceable as unconscionable. In this case, there was no claim or evidence of reckless conduct or gross negligence, and for that reason, the invalid phrases are not implicated. Accordingly, this argument warrants no further discussion. R. 2:11-3(e)(1)(E).
Finally, Allen contends that defendant waived the right to enforce this exculpatory agreement because defendant proceeded with discovery and did not file a motion for summary judgment. In its answer, defendant asserted several affirmative defenses, including assumption of risk. At the pre-trial conference, Allen's attorney advised that defense counsel had told him he planned to make a motion at the close of the case on assumption of risk. Allen's attorney asked the judge to consider a pre-trial motion he had filed. This colloquy followed:
[Allen's attorney:] I made a motion to bar assumption of the risk just on the chance it was going to be brought up because it is in the contract that my client signed and I wanted to make sure that there wasn't going to be mention[] or comment about it during the trial, that she assumed a risk by contract of whatever happened to her at the gym.
The Court: You mean the release where you sign away all of your rights?
[Allen's attorney:] Yes.
The subsequent discussion makes it clear that this was not an objection to defense counsel's plan to make a motion for dismissal at the close of Allen's case. The discussion was about the scope of defense counsel's cross-examination. On defense counsel's representation that he would not question Allen about the contract if there was a stipulation as to her signature because the question was a legal one, Allen's attorney agreed to the stipulation. He then moved on to discuss other outstanding pre-trial issues. When defense counsel moved for a directed verdict at the close of Allen's case, there was no objection.
Under these circumstances, we reject Allen's claim that the defense was inadequately pled or waived. It is clear that the parties' understood that in pleading assumption of risk as an affirmative defense, defendant gave effective notice of its intention to rely on the contract's exculpatory clauses. Allen's arguments to the contrary are without sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E).
Reversed.
1 Prior to trial the parties stipulated that Body of Change was no longer in existence and that LA Fitness had acquired its assets and liabilities. Accordingly, the trial proceeded against LA Fitness.
