Schlobohm v. Spa Petite, Inc., No. 81-1193.

• Court: Supreme Court of Minnesota (US)
• Writing for the Court: I join the dissents of Justices Simonett and Wahl
• Citation: 326 NW 2d 920
• Parties: Sandra C. SCHLOBOHM, et al., Respondents, v. SPA PETITE, INC., Appellant.
• Docket Number: No. 81-1193.
• Decision Date: 10 December 1982

326 N.W.2d 920 (1982)

Sandra C. SCHLOBOHM, et al., Respondents,
v.
SPA PETITE, INC., Appellant.

No. 81-1193.

Supreme Court of Minnesota.

December 10, 1982.

326 NW 2d 921

Gilmore, deLambert, Aafedt, Eustis & Forde and John R. deLambert, Minneapolis, for appellant.

Rietz, Rietz & Rietz and Dean K. Rietz, Owatonna, for respondents.

Considered and decided by the court en banc without oral argument.

KELLEY, Justice.

The appellant, Spa Petite, Inc., the operator of a gym or health spa run for profit, in an action for damages claiming personal injuries commenced by one of its patron-customers, moved the trial court for summary judgment relying on a clause in the membership contract between it and the plaintiff, purporting to exculpate it, its agents and employees from liability to members for personal injuries arising out of negligence. In denying the motion, the trial court held that the exculpatory clause was void as against public policy, but certified the question as important and doubtful as provided by Rule 103.03(i), Rules of Civil Appellate Procedure. We hold that the exculpatory clause here in issue is not void as against public policy, and, accordingly, reverse.

Appellant, Spa Petite, Inc. (Spa Petite), owned and operated the Spa Petite in Owatonna. In January 1976, respondent Sandra C. Schlobohm (Schlobohm) entered into a contract to become a member of Spa Petite which offered a program of weight reduction and general physical fitness through exercise. The facility has various exercise paraphernalia including a leg extension apparatus which requires the user to sit on the edge of a bench, to place the ankles under a padded bar to which weights have been attached by a pulley, and then lift the legs straight up until they are parallel with the floor.

The Spa Petite employed instructors who designed and adjusted the exercise program for each member, taking into consideration the member's individual goals. The Spa Petite represented that their instructors were trained in this sort of work. The employee-instructors received training in how to develop a "program card" and exercise techniques through classroom and on-the-job instructions.

The respondent Schlobohm signed the membership contract on her initial visit to the facility. There was no compulsion in her joining. The contract consisted of four pages, but the regulations and policies of Spa Petite were all on one page. There were 11 clauses of regulations and policies. Each was headlined by a word or phrase in uniform bold-faced type and each headline was followed by a printed regulation or policy. The print of each clause was of uniform size with that of each other clause on the page. The exculpatory clause, out of which this dispute arose and relating to accidents, read:

ACCIDENTS

It is further expressly agreed that all exercises and treatments and use of all facilities shall be undertaken by member at member\'s sole risk and that Spa Petite shall not be liable for any claims, demands, injuries, damages, actions or causes

326 NW 2d 922

of action, whatsoever to member or property arising out of or connected with the use of any of the services and facilities of Spa Petite or the premises where same are located, and member does hereby expressly forever release and discharge the said Spa Petite from all such claims, demands, injuries, damages, actions or causes of action, and from all acts of active or passive negligence on the part of such company, corporation, club, its servants, agents, or employees.

Before signing the membership contract, Schlobohm had the opportunity and did "somewhat" read the context of the contract.

At the time of signing the contract, Schlobohm and one of appellant's instructors developed an initial exercise program. Respondent Schlobohm notified the instructor that approximately 6 years before she had experienced some mild muscle spasm in her back for which she had received four chiropractic treatments. This fact was duly noted on her program card and was taken into consideration by the instructor in designing her exercise program.

Beginning shortly after she signed the membership contract, respondent Schlobohm used the Spa Petite facility on a regular basis until June 7, 1976. From time to time during this period her exercise program was adjusted so as to increase the difficulty of the program as a means of meeting her goal of muscle toning. Such adjustments in program were made through consultation between Schlobohm and one of appellant's instructors. It was during this period that Schlobohm began using the leg extension machine.

On June 7, 1976, while she was using the leg extension machine, an unidentified woman approached her and queried her about her program progress. This woman examined her program card, after which she recommended a change in the amount of weights being lifted from 20 pounds to 40 pounds. Schlobohm questioned the change because she had previously experienced muscle spasms — a fact noted on the top of her card.¹ After the additional weights had been added, respondent raised her legs and felt a "snap" in her back. She felt immediate pain, and shortly thereafter went to her home. The pain and subsequent discomfort remained even though she sought, on numerous occasions, chiropractic, orthopedic and neurological treatment ultimately resulting in surgery in 1980. Even after surgery, respondent Schlobohm claims to still experience problems in terms of pain and physical restrictions on activity.

Schlobohm commenced this suit, alleging that the Spa Petite was negligent. Her husband also asserted a claim for loss of consortium. After discovery, appellant moved for summary judgment on the sole ground that the exculpatory clause in the membership contract relieved it from liability. The trial court denied the motion, holding the contract to be a contract of adhesion and the exculpatory clause to be void as against public policy.² Although this court on numerous occasions has considered the validity of exculpatory clauses and indemnity contracts primarily in connection with construction contracts and leases,³ we have never been called upon to decide whether an exculpatory clause in a health spa or gymnasium contract is invalid as contrary to public policy.

When considering exculpatory clauses contained in construction contracts and commercial leases, we have held that parties to a contract may, without violation of public policy, protect themselves against liability

326 NW 2d 923

resulting from their own negligence.⁴ In so doing, we have noted that the public interest in freedom of contract is preserved by recognizing such clauses as valid. Northern Pacific Railway Co. v. Thornton Brothers Co., 206 Minn. 193, 196, 288 N.W. 226, 227 (1939)

1. Even though we have recognized the validity of exculpatory clauses in certain circumstances, they are not favored in the law. A clause exonerating a party from liability will be strictly construed against the benefited party. If the clause is either ambiguous in scope or purports to release the benefited party from liability for intentional, willful or wanton acts, it will not be enforced. Thus, we held in Farmington Plumbing & Heating Co. v. Fischer Sand & Aggregate, Inc., 281 N.W.2d 838, 842 (Minn.1979), that indemnity clauses were to be strictly construed against the purported indemnitee, and that indemnity will not be created by implication. We extended that rule of strict construction to exculpatory clauses in Solidification, Inc. v. Minter, 305 N.W.2d 871, 873 (Minn.1981).

Though we have not heretofore addressed the issue, courts of other jurisdictions have held such clauses invalid if they purport to exonerate a party from willful or wanton recklessness or intentional torts. See, e.g., Jones v. Dressel, Colo., 623 P.2d 370, 376 (1981); Winterstein v. Wilcom, 16 Md.App. 130, 136, 293 A.2d 821, 824-25 (1972). An examination of the exculpatory clause in Spa Petite's contract demonstrates an absence of ambiguity. The clause specifically purports to exonerate Spa Petite from liability for acts of negligence and negligence only. In this case, the claims of the respondents are based on negligence, and they make no claim that Spa Petite or its employees acted willfully, intentionally or wantonly. Where there is no ambiguity in the written terms of the contract, construction by a court is inappropriate. Telex Corp. v. Data Products Corp., 271 Minn. 288, 294, 135 N.W.2d 681, 686 (1965). The clause in this contract being unambiguous and limited to a release of liability arising out of negligence only, we must next consider whether its enforcement in this case would contravene public policy.

2. Courts of various jurisdictions, including Minnesota, have approached the policy considerations in determining the validity of exculpatory clauses on an ad hoc case-by-case basis. An examination of the cases demonstrates the emergence of a two-prong test used by the courts in analyzing the policy considerations. Before enforcing an exculpatory clause, both prongs of the test are examined, to-wit: (1) whether there was a disparity of bargaining power between the parties (in terms of a compulsion to sign a contract containing an unacceptable provision and the lack of ability to negotiate elimination of the unacceptable provision) North Star Center, Inc. v. Sibley Bowl, Inc., 295 Minn. 424, 426, 205 N.W.2d 331, 333 (1973) (per curiam),⁵ and (2) the types of services being offered or provided (taking into consideration whether it is a public or essential service). Jones v. Dressel, Colo., 623 P.2d 370, 376 (1981).

In California, notwithstanding a statutory provision that seemingly on its face mandates that all exculpatory clauses in contracts

326 NW 2d 924

are against the state's public policy,⁶ the courts have held that an exculpatory clause may be enforceable but only if it does not involve the "public interest."⁷ These California cases were analyzed in Tunkl v....