Leidy v. Deseret Enterprises, Inc.
| Decision Date | 02 December 1977 |
| Parties | Franklin W. LEIDY and Elizabeth S. Leidy, Appellants, v. DESERET ENTERPRISES, INC., d/b/a Body Shop Health Spa, Defendant, and Kathy Ann Robinson and Elizabeth S. Leidy, Additional Defendants. Appeal of Kathy Ann ROBINSON. |
| Court | Pennsylvania Superior Court |
Argued Dec. 7, 1976. [Copyrighted Material Omitted]
James P. Coho, Lancaster, for appellants at No. 2217, and appellees at No. 2282.
Andrew F. Lucarelli, Lancaster, with him John S. May, Lancaster, for appellant at No. 2282, and additional defendant, Robinson, at No. 2217.
Before WATKINS, President Judge and JACOBS HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.
Mr. and Mrs Leidy, appellants, commenced an action in trespass and assumpsit against appellee, Deseret Enterprises, Inc., d/b/a Body Shop Health Spa, for injuries sustained by Mrs. Leidy at the Spa. The Spa joined its employee, Kathy Ann Robinson, as an additional defendant on the theory that she acted outside the scope of her employment in her treatment of Mrs. Leidy. (The Spa also joined Mrs. Leidy as an additional defendant on the basis of assumption of the risk, but this joinder has been stricken.)
The complaint alleges that Mrs. Leidy had been referred to the Spa by her doctor as part of post-operative treatment following surgery on the lumbar area of her spine, but that the treatment she was in fact given was directly contrary to her doctor's instructions to the Spa, and resulted in various injuries. The Spa and Ms. Robinson filed motions for judgment on the pleadings on the basis of a provision in the membership agreement, between Mrs. Leidy and the Spa, purporting to release the Spa from liability for injuries resulting from its negligence or that of its employees. The Spa's motion was granted, but Ms. Robinson's motion was denied. This consolidated appeal by the Leidys and Ms. Robinson followed.
Neither motion should have been granted; we therefore sustain the Leidys' appeal and remand for further proceedings. [1] I
The Leidys contend that the clause purporting to release the Spa from liability for injuries resulting from its negligence is unconscionable. [2]
In Crew v. Bradstreet, 134 Pa. 161, 169, 19 A. 500 (1890), the Supreme Court stated:
Contracts against liability for negligence are not favored by the law. In some instances, such as common carriers, they are prohibited as against public policy. In all cases, such contracts should be construed strictly, with every intendment against the party seeking their protection.
Although not favored, contracts against liability may nevertheless be valid. Commonwealth v. Monumental Properties, Inc., 10 Pa.Cmwlth. 596, 314 A.2d 333 (1973). Generally stated the contract will be held valid if:
(a) "it does not contravene any policy of the law, that is, if it is not a matter of interest to the public or State . . . ." (Dilks v. Flohr Chevrolet, 411 Pa. 425, 434, 192 A.2d 682, 687 (1963) and authorities therein cited); (b) "the contract is between persons relating entirely to their own private affairs" (Dilks v. Flohr Chevrolet, supra, pp. 433, 434, 192 A.2d 682, p. 687); (c) "each party is a free bargaining agent" and the clause is not in effect "a mere contract of adhesion, whereby (one party) simply adheres to a document which he is powerless to alter, having no alternative other than to reject the transaction entirely." (Galligan v. Arovitch, 421 Pa. 301, 304, 219 A.2d 463, 465 (1966)).
In Phillips Home Furnishings, Inc. v. Continental Bank, 231 Pa.Super. 174, 331 A.2d 840 (1974), rev'd on other grounds (issue of exculpatory clause held not properly before Superior Court) 467 Pa. 43, 354 A.2d 542 (1976), we enumerated situations where courts have found contracts against liability contrary to public policy:
(I)n the employer-employee relationship, e. g., Tarbell v. Rutland R. Co., 73 Vt. 347, 51 A. 6 (1901); in situations where one party is charged with a duty of public service, e. g., Denver Consol. Elec. Co. v. Lawrence, 31 Colo. 301, 73 P. 39 (1903), Bowman & Bull Co. v. Postal Telegraph-Cable Co., 290 Ill. 155, 124 N.E. 851 (1919), cert. denied, 251 U.S. 562, 40 S.Ct. 342, 64 L.Ed. 415 (1920) (public utilities); Boston & Maine R. Co. v. Piper, 246 U.S. 439, 38 S.Ct. 354, 62 L.Ed. 820 (1918), Turek v. Pa. R. R. Co., 361 Pa. 512, 64 A.2d 779 (1949) (common carriers); Dixilyn Drilling Corp. v. Crescent Towing & Salvage Co., 372 U.S. 697, 83 S.Ct. 967, 10 L.Ed.2d 78 (1963); Bisso v. Inland Waterways Corp., 349 U.S. 85, 75 S.Ct. 629, 99 L.Ed. 911 (1955) (carriers); Tunkl v. Regents of U. of Calif., 60 Cal.2d 92, 32 Cal.Rptr. 33, 383 P.2d 441 (1963) (hospitals); Northwest Airlines, Inc. v. Alaska Airlines, Inc., 351 F.2d 253 (9th Cir. 1965), cert. denied, 383 U.S. 936, 86 S.Ct. 1068, 15 L.Ed.2d 853 (1966) (airports); to agreements which attempt to exculpate one from liability for the violation of a statute or regulation designed to protect human life, Boyd v. Smith, 372 Pa. 306, 94 A.2d 44 (1953); Warren City Lines, Inc. v. United Refining Co., 220 Pa.Super. 308, 287 A.2d 149 (1971); and elsewhere, e. g., Uniform Commercial Code § 2-719(3), 12A P.S. § 2-719, provides that the limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable. See generally Restatement (Second) of Torts, § 496 B, comments a-j (1965); Restatement of Contracts, § 575 (1932); W. Prosser, The Law of Torts, § 68, at 442-45 (4th ed. 1971).
Courts have been particularly sensitive to the public interest in considering contracts that involve health and safety. In Boyd v. Smith, supra, a landlord contended that an exculpatory clause in the lease relieved him from liability for personal injuries sustained by plaintiff in a fire. The injuries resulted from the landlord's negligence in failing to provide a wire or chain or fire escape as required by a statute. In rejecting the landlord's contention the Court stated:
Defendant relies, as previously indicated, on the exculpatory clause of the lease relieving him from liability for injury or damage caused by fire even though such injury or damage might result from his own negligence. Such a protective clause is undoubtedly valid and enforceable if it does not contravene any policy of the law, that is, if it is not a matter of interest to the public or the State but merely an agreement between persons relating entirely to their private affairs. Cannon v. Bresch, 307 Pa. 31, 160 A. 595; Jacob Siegal Co. v. Philadelphia Record Co., 348 Pa. 245, 35 A.2d 408; Manius v. Housing Authority of the City of Pittsburgh, 350 Pa. 512, 39 A.2d 614; Wright v. Sterling Land Co., Inc., 157 Pa.Super. 625, 43 A.2d 614. The situation becomes an entirely different one in the eye of the law when the legislation in question is, as here, a police measure obviously intended for the protection of human life; in such event public policy does not permit an individual to waive the protection which the statute is designed to afford him. It was said in McCurdy's Estate, 303 Pa. 453, 461, 154 A. 707, 709:
Id. 372 Pa. at 309-310, 94 A.2d at 46.
Here the contract clearly concerned health and safety. The allegation is that a business purporting to provide for the physical health of its members acted directly contrary to a doctor's orders specifying necessary post-operative treatment, and that serious injuries resulted. The public has an interest in assuring that those claiming to be qualified to follow a doctor's orders are in fact so qualified, and accept responsibility for their actions.
This interest is manifested by the Physical Therapy Practice Act, Act of October 10, 1975, P.L. 383, No. 110, § 1, 63 P.S. § 1301 et seq., which provides for the examination and licensing of physical therapists. The Act provides: "Any person licensed under this act as a physical therapist shall not treat human ailments by physical therapy or otherwise except by the referral of a person licensed in this State as a physician . . ." 63 P.S. 1309. This provision reflects the legislature's recognition that a physical therapist is in a sense part of the medical profession; the therapist's expertise lies in the same realm as the doctor's, and the therapist's errors may do as much harm as the doctor's. [3] The therapist's status is comparable to that of a druggist, about whom it has been said:
It is settled that a druggist or manufacturer of drugs or medicines who negligently delivers a deleterious drug when a harmless one is called for is responsible for the harmful consequences to the user of that drug or medicine as being guilty of a breach of duty imposed on him by law to avoid acts dangerous to the lives or health of others.
Henderson v. National Drug Company, 343 Pa. 601-605, 23 A.2d 743, 746 (1942).
A physical therapist who as alleged here negligently performs therapy in direct contradiction to a doctor's orders should likewise be "guilty of a breach of duty imposed on him by law to avoid acts dangerous to the lives or health of others."
The Leidys should further have the opportunity to address the third requirement that must be met before an exculpatory clause will be upheld, namely, that " 'each party is a free...
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