Skotak v. Vic Tanny Intern., Inc., Docket No. 146857

• Decision Date: 08 February 1994
• Docket Number: Docket No. 146857
• Citation: 203 Mich.App. 616,513 N.W.2d 428
• Parties: Deborah SKOTAK, Personal Representative of the Estate of James Anthony Skotak, Deceased, and Deborah Skotak, Individually, Plaintiff-Appellant, v. VIC TANNY INTERNATIONAL, INC., Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 428

513 N.W.2d 428

203 Mich.App. 616

Deborah SKOTAK, Personal Representative of the Estate of James Anthony Skotak, Deceased, and Deborah Skotak, Individually, Plaintiff-Appellant, v. VIC TANNY INTERNATIONAL, INC., Defendant-Appellee.

Docket No. 146857.

Court of Appeals of Michigan.

Submitted Dec. 8, 1993, at Detroit.

Decided Feb. 8, 1994, at 10:10 a.m.

Released for Publication April 1, 1994.

Trenta & Counsman by Thomas J. Trenta and Richard T. Counsman, Bloomfield Hills, for plaintiff.

Lupo, Koczkur & Petrella, P.C. by Paul S. Koczkur and Sandra M. Vozza, Detroit, for defendant.

Before MARK J. CAVANAGH, P.J., and BRENNAN and BENSON, ^* JJ.

PER CURIAM.

Plaintiff, Deborah Skotak, brought suit against defendant, Vic Tanny International, Inc., on various counts, including negligence. The circuit court granted defendant's motion for summary disposition pursuant to MCR 2.116(C)(7) (claim barred by release). Plaintiff appeals as of right from the circuit court's final order, and we affirm.

Plaintiff alleged that her decedent, James Skotak, a member of defendant health club, suffered a fatal heart attack while sitting in the steam room at defendant's Plymouth, Michigan, facility. She further alleged that defendant was negligent in failing to ensure that its staff was trained to respond to such emergencies (and, in particular, to administer cardiopulmonary resuscitation).

The circuit court granted defendant's motion for summary disposition, finding the claim barred by a release clause contained in the membership contract entered into by the decedent and defendant. The issue on appeal is whether the motion for summary disposition was properly granted.

When reviewing a motion for summary disposition pursuant to MCR 2.116(C)(7), this Court accepts all of the plaintiff's well-pleaded allegations as true and construes them most favorably to the plaintiff. We must consider all affidavits, pleadings, depositions, admissions, and documentary evidence filed or submitted by the parties. The motion should be granted only if no factual development could provide a basis for recovery. Dedes v. South Lyon Community Schools, 199 Mich.App. 385, 388, 502 N.W.2d 720 (1993), lv. gtd. 444 Mich. 895, 512 N.W.2d 316 (1993).

It is not contrary to this state's public policy for a party to contract against liability for damages caused by its own ordinary negligence. Dombrowski v. City of Omer, 199 Mich.App. 705, 709, 502 N.W.2d 707 (1993); Paterek v. 6600 Ltd., 186 Mich.App. 445, 448, 465 N.W.2d 342 (1990); Chrysler Corp. v. Brencal Contractors, Inc., 146 Mich.App. 766, 772-774, 381 N.W.2d 814 (1985). The validity of a contract of release turns on the intent of the parties. To be valid, a release must be fairly and knowingly made. A release is invalid if (1) the releasor was dazed, in shock, or under the influence of drugs, (2) the nature of the instrument was misrepresented, or (3) there was other fraudulent or overreaching conduct. Dombrowski, supra; Paterek, supra 186 Mich.App. at 449, 465 N.W.2d 342.

The contractual language at issue in this case provides as follows:

F. By the use of the facilities of Seller and/or by the attendance at any of the gymnasiums owned by Seller, the Member expressly agrees that Seller shall not be liable for any damages arising from personal injuries sustained by the Member or his guest in, on or about the premises of the said gymnasiums or as a result of their using the facilities and the equipment therein. By the execution of this agreement Member accepts full responsibility of [sic] any such injuries or damages which may occur to the Member or guest in, on or about the premises of the said gymnasiums and further agrees that Seller shall not be liable for any loss or theft of personal property. Member assumes full responsibility for any injuries, damages or losses which may occur to Member or guest, in, on or about the premises of said gymnasiums and does hereby fully and forever release and discharge Seller and all associated gymnasiums, their owners, employees and agents from any and all claims, demands, damages, rights of action, or causes of action, present or future, whether the same be known or unknown, anticipated, or unanticipated, resulting from or arising out of the Member's or his guests [sic] use or intended use of the said gymnasiums or the facilities and equipment thereof.

We reject plaintiff's claim that the quoted provision is ambiguous. The inclusive language, "any and all claims, demands, damages, rights of action, or causes of action, ... arising out of the Member's ... use of the ... facilities," clearly expresses defendant's intention to...