Fresnedo v. Porky's Gym Iii, Inc.

• Decision Date: 24 April 2019
• Docket Number: No. 3D17-1126,3D17-1126
• Citation: 271 So.3d 1185
• Parties: Lazaro FRESNEDO, Appellant, v. PORKY'S GYM III, INC., Appellee.
• Court: Florida District Court of Appeals

271 So.3d 1185

Lazaro FRESNEDO, Appellant,

v.PORKY'S GYM III, INC., Appellee.

No. 3D17-1126

District Court of Appeal of Florida, Third District.

Opinion filed April 24, 2019

Eaton & Wolk, PL, and Douglas F. Eaton, Miami, for appellant.

Law Offices of Cara Morris, PL, and Cara C. Morris (Palm Beach Gardens), for appellee.

Before EMAS, C.J., and FERNANDEZ and LOGUE, JJ.

EMAS, C.J.

Lazaro Fresnedo filed a complaint against Porky's Gym III, Inc., alleging he sustained serious injuries when he was knocked unconscious by another customer (Mr. Coto) who was using the gym that day on a single-day pass.¹

In his complaint, Fresnedo alleged that Porky's had a legal duty to ensure that it maintained its premises in a safe manner, free from dangers of which it knew or reasonably should have known, and to warn Fresnedo of any dangers of which it knew or reasonably should have known. The complaint further alleged that Porky's breached its duties to Fresnedo by allowing Mr. Coto on the premises without first obtaining the information required to issue a single-day pass; by failing to warn Fresnedo regarding Mr. Coto's behavior; and by failing to remove Mr. Coto from the facility (who allegedly displayed aggressive behavior prior to his attack on Fresnedo).

Porky's moved for summary judgment based upon the affirmative defenses of waiver and assumption of the risk, relying upon a waiver and release form signed by Fresnedo when he became a member of Porky's. Following a hearing, the trial court granted final summary judgment in favor of Porky's. This appeal followed. We review the issue de novo, Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla. 2000), and consider the record in a light most favorable to the non-moving party. Turner v. PCR, Inc., 754 So.2d 683 (Fla. 2000) ; Davis v. Baez, 208 So.3d 747 (Fla. 3d DCA 2016).

Exculpatory clauses, such as the one at issue here, "that purport to deny an injured party the right to recover damages from another who negligently causes injury are strictly construed against the party seeking to be relieved of liability." Gillette v. All Pro Sports, LLC, 135 So.3d 369, 370 (Fla. 5th DCA 2014). In addition, courts are required to read such clauses in pari materia, giving meaning to each of its provisions, to determine whether the intention to be relieved was made clear and unequivocal in the contract, such that an ordinary person would know what he was contracting away. See Covert v. S. Fla. Stadium Corp., 762 So.2d 938, 940 (Fla. 3d DCA 2000) ; Sunny Isles Marina, Inc. v. Adulami, 706 So.2d 920, 922 (Fla. 3d DCA 1998). See also Sanislo v. Give Kids the World, Inc., 157 So.3d 256, 260-61 (Fla. 2015) (holding: "Exculpatory clauses are unambiguous and enforceable where the intention to be relieved from liability was made clear and unequivocal and the wording was so clear and understandable that an ordinary and knowledgeable person will know what he or she is contracting away"); Diodato v. Islamorada Asset Mgmt., Inc., 138 So.3d 513, 517 (Fla. 3d DCA 2014) (reiterating the "well-settled principle that [exculpatory] clauses are disfavored and are narrowly construed" and reversing summary judgment where exculpatory clause at issue was not "clear and unequivocal" in its attempt to release defendant from liability for specific act of negligence); Gillette, 135 So.3d at 370 ; Tatman v. Space Coast Kennel Club, Inc., 27 So.3d 108, 110 (Fla. 5th DCA 2009) (noting that the wording of an exculpatory clause "must be so clear and understandable that ‘an ordinary and knowledgeable person will know what he is contracting away’ ") (quoting Gayon v. Bally's Total Fitness Corp., 802 So.2d 420, 421 (Fla. 3d DCA 2001) ); Murphy v. Young Men's Christian Ass'n of Lake Wales, Inc., 974 So.2d 565 (Fla. 2d DCA 2008) ; Orkin Exterm. Co. v. Montagano, 359 So.2d 512, 514 (Fla. 4th DCA 1978) (holding that because "we do not look with favor on exculpatory clauses, we must require the draftsmen of all contracts which contain them to use clear and unequivocal language totally without a hint of deceptive come-on, or inconsistent clauses").

After reviewing the waiver and release form signed by Fresnedo, we cannot say that the exculpatory clauses at issue clearly and unequivocally waived Porky's liability for the negligence alleged by Fresnedo in his complaint. We therefore reverse the final judgment and remand for further proceedings.

For its contrary position, the dissenting opinion relies exclusively on a single paragraph of the release (paragraph Four), in which Fresnedo agreed that he would "assume full responsibility for any risk of bodily injury, death or negligence of any of the clubs or otherwise while [I am] on the premises occupied by any of the clubs."

Although this single paragraph of the release relied upon by the dissent may itself be plain and clear, the release is not comprised of a single paragraph, and we must read paragraph Four together with the other paragraphs of the release to determine whether "an ordinary and knowledgeable person will know what he is contracting away." Gayon, 802 So.2d at 421.

The three paragraphs immediately preceding the paragraph relied upon by the dissent provide as follows (all emphasis added):

1. You understand that the use of the Clubs' facilities and equipment tests a person's physical limits and carries with it a potential for serious injury and/or death, such as injuries caused by weights falling, equipment malfunctioning, cables snapping, defects in or improper maintenance of equipment or premises, inadequate supervision or instruction, intentional or unintentional misuse of the equipment (by you or others), the negligent acts of others with regard to the facilities and equipment (including the actions of any employees of the Club), and other dangers inherent in strenuous physical activity. You are aware of and accept these risks. You also understand and agree that it is your sole responsibility to determine whether you are sufficiently fit and/or healthy enough to safely use the equipment and/or facilities of any of the Clubs. You affirm that you will be sufficiently fit and physically trained to use the equipment of the Clubs you choose to use.

2. In consideration of your membership with any of the Clubs, you, for yourself, and for anyone else who can claim through you, hereby release each of the Clubs, and their employees, officers, directors, and agents, from any claim (of any nature whatsoever) that you may have, now or in the future, for any injuries you incur while you are on the premises occupied by any of the Clubs, such as 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 your use of the equipment or facilities of any of the Clubs, whether caused by the active or passive negligence of any of the Clubs .

3. Additionally, you, for yourself, and for anyone else who can claim through you, hereby release each of the Clubs, and their employees, Officers, directors, and agents, from any claims (of any nature whatsoever) that you may have, now or in the future, for any damage to any of your property incurred while you are on the premises occupied by any of the Clubs, whether caused by the active or passive negligence of any of the Clubs or otherwise.

The fourth paragraph reads:

4. YOU ASSUME FULL RESPONSIBILITY FOR ANY RISK OF BODILY INJURY, DEATH OR PROPERTY DAMAGE DUE TO THE NEGLIGENCE OF ANY OF THE CLUBS OR OTHERWISE WHILE YOU ARE ON THE PREMISES OCCUPIED BY ANY OF THE CLUBS.

Paragraph Four does indeed provide that the member assumes "full responsibility for any risk of bodily injury [or] death due to the negligence of the clubs." However, that language cannot be read in isolation, but instead must be read and understood in light of, and together with, the language of preceding paragraphs One and Two. Those two paragraphs address the "risk of bodily injury" in much greater detail than paragraph Four, yet inexplicably do so in the specific context of:

- "the use of the Clubs' facilities and equipment [which] tests a person's physical limits and carries with it a potential for serious injury and/or death, such as injuries caused by weights falling, equipment malfunctioning, cables snapping, defects in or improper maintenance of equipment or premises, inadequate supervision or instruction, intentional or unintentional misuse of the equipment (by you or others), the negligent acts of others with regard to the facilities and equipment (including the actions of any employees of the Club), and other dangers inherent in strenuous physical activity." (Paragraph One)

- "injuries you incur while you are on the premises occupied by any of the Clubs, such as 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 your use of the equipment or facilities of any of the Clubs, whether caused by the active or passive negligence of any of the Clubs." (Paragraph Two)

If (as the dissent posits) the broad language contained in paragraph Four is so plain, clear, unambiguous and all-encompassing, why would paragraphs One and Two be necessary at all? These three paragraphs (One, Two and Four), when read together, could reasonably lead a person to believe that the "risk of bodily injury [or] death" being assumed in paragraph Four refers to injuries "such as" those specifically and extensively enumerated in paragraphs One and Two—injuries which occur as a result of, or related to, "the use of the Club's facilities and equipment." Indeed, this is precisely how Mr. Fresnedo understood the language of the waiver and release form. As he explained in his declaration filed in opposition to Porky's motion for summary judgment:

[My] understanding of these forms was that I was giving up

...