[Cite as Pruitt v. Strong Style Fitness,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 96332

ANTHONY PRUITT PLAINTIFF-APPELLANT

vs.

STRONG STYLE FITNESS, ETC., ET AL. DEFENDANTS-APPELLEES

JUDGMENT: AFFIRMED

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-717666

BEFORE: S. Gallagher, P.J., Keough, J., and E. Gallagher, J.

RELEASED AND JOURNALIZED: October 13, 2011 ATTORNEYS FOR APPELLANT

Michael D. Goldstein Ladi Williams Goldstein & Goldstein Co., L.P.A. 55 Public Square Suite 1575 Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEES

For Strong Style Fitness

Shawn W. Schlesinger Koeth, Rice & Leo Co., LPA 1280 West Third Street Cleveland, Ohio 44113

For Magnum Fitness Systems

Daniel R. Haude Reminger Co., LPA 1400 Midland Building 101 Prospect Avenue, West Cleveland, Ohio 44115

SEAN C. GALLAGHER, P.J.:

{¶ 1} Appellant Anthony Pruitt appeals the decision of the trial court granting the

motion for summary judgment filed by appellee Juggernaut Enterprises, LLC, d.b.a.

Strong Style Fitness and Training Center (“Strong Style”). For the following reasons,

we affirm the decision of the trial court. {¶ 2} In January 2009, Pruitt joined Strong Style, paying for two months of gym

membership and ten personal training sessions with Charles Lyons. Upon joining, Pruitt

signed two documents, one for the general membership and another titled “Strong Style

Rules and Regulations.” The rules and regulations document contained an exculpatory

clause on the first page of a two-page, double-sided document. An underlined clause in

that document provides in pertinent part as follows:

“Release. * * * On behalf of yourself and your minor children, you hereby agree to voluntarily release and discharge Strong Style Fitness and Training Center (and all its affiliates, employees, representatives, agents, successors, and assigns) from any and all claims, causes of action, and other liabilities of any kind whatsoever ([sic] whether known or unknown, which may occur as a result of your or your minor children engaging in any bodybuilding or fitness activity, or any activity incidental thereto, upon or within the Facilities, whether arising from the negligence of Strong Style Fitness and Training Center or otherwise, and whether or not related to exercise, including, without limitation, any bodily injury or death caused by any present or future medical condition of yours or your minor children whether known or unknown. * * * You acknowledge that you carefully read this Waiver and Release and fully understand that it is a release of liability. You are waiving any right that you may have to bring a legal action to assert a claim against Strong Style Fitness and Training Center for our negligence.”

{¶ 3} Immediately preceding the signature line containing Pruitt’s signature, the document

contains a paragraph certifying that Pruitt read and understood the terms of the rules and

regulations.

{¶ 4} Pruitt participated in four personal training sessions prior to the ill-fated session.

During this fifth session, Pruitt was using the incline leg press machine under Lyons’s

supervision. The machine required Pruitt to sit at a 45-degree angle with his legs extending

upwards. The weights were hung on a 90-pound platform that Pruitt pushed with his legs. Lyons showed Pruitt how to operate the machine and the safety catch that holds the platform in

place. To use the machine, the user extends his legs and disengages the safety catch. Before

finishing, the user holds the platform with his legs, engages the safety catch, and lowers the

platform onto the safety catch.

{¶ 5} During the fifth session, Pruitt pressed 350 pounds. After finishing his sets,

Pruitt engaged the safety catch and rested momentarily. Pruitt was unable to visually

verify whether the catch was fully engaged from his seated position. Likewise, Lyons,

who was standing next to the weight platform to “spot” Pruitt, was unable to visually

verify whether the safety catch was fully engaged. Lyons heard the catch engage as if it

was properly activated. Pruitt then attempted to exit the machine by grabbing the foot

platform. Inexplicably, the platform disengaged from the safety catch and fell on

Pruitt’s knee, causing severe injuries. The parties speculated that either the safety catch

was not fully engaged or Pruitt somehow lifted the platform enough to raise it off the

safety catch as he was getting up, which would cause the catch to disengage. Both

theories are based on conjecture. Pruitt’s claims are based on Lyons’s failure to ensure

the machine was secured prior to Pruitt’s attempt to exit the machine.

{¶ 6} Strong Style filed a motion for summary judgment. The trial court granted

its motion and held that Pruitt failed to demonstrate that Strong Style, through Lyons, was

negligent and that the release contained in the rules and regulations document was

enforceable, thereby prohibiting Pruitt from maintaining his action. Pruitt timely

appealed, raising one assignment of error that provides as follows: “The trial court erred in granting defendant-appellee’s motion for summary judgment because the release

language within Strong Style gym’s membership agreement was unenforceable as a

matter of law and plaintiff-appellant presented sufficient evidence for jury consideration

of his negligence claim.” The crux of Pruitt’s argument is that the exculpatory clause is

unenforceable because it is unconscionable, ambiguous, or against public policy. For

the following reasons, Pruitt’s sole assignment of error is without merit.

{¶ 7} Appellate review of summary judgment is de novo, governed by the standard

set forth in Civ.R. 56. Comer v. Risko,

,

,

, ¶ 8. Accordingly, we afford no deference to the trial court’s decision and

independently review the record to determine whether summary judgment is appropriate.

Hollins v. Shaffer,

,

,

.

Under Civ.R. 56(C), summary judgment is proper when the moving party establishes that

“(1) no genuine issue of any material fact remains, (2) the moving party is entitled to

judgment as a matter of law, and (3) it appears from the evidence that reasonable minds

can come to but one conclusion, and construing the evidence most strongly in favor of the

nonmoving party, that conclusion is adverse to the party against whom the motion for

summary judgment is made.” State ex rel. Duncan v. Mentor City Council,

,

,

, citing Temple v. Wean United, Inc.

(1977),

,

.

{¶ 8} Generally in Ohio, exculpatory clauses, which relieve a party from its own

negligence, are not against public policy despite being disfavored in the law. Lamb v. Univ. Hosp. Health Care Ent., Inc. (Aug. 13, 1998), Cuyahoga App. No. 73144. Valid

exculpatory clauses or releases constitute express assumptions of risk. Anderson v.

Ceccardi (1983),

,

. As with contracts in general,

these clauses are to be strictly construed against the drafter unless the language is clear

and unambiguous. When the terms of the contract are clear and unambiguous, the

interpretation is a matter of law. Alexander v. Buckeye Pipe Line Co. (1978),

,

.

{¶ 9} A party waiving his right to recover for another’s negligent acts must make a

conscious choice to accept the consequences of the other party’s negligence. Lamb,

Cuyahoga App. No. 73144, citing Cain v. Cleveland Parachute Training Ctr. (1983),

,

. If the terms of the contract are ambiguous, the

intention of the parties is a factual inquiry for the trier of fact.

Recovery for willful

or wanton misconduct cannot be waived.

{¶ 10} Moreover, as with all contracts, the party against whom the contract is being

enforced may seek rescission of the contract if the terms are unconscionable.

“Unconscionability is generally recognized as the absence of meaningful choice on the

part of one of the parties to a contract, combined with contract terms that are

unreasonably favorable to the other party.” (Internal citations and quotations omitted.)

Short v. Resource Title Agency, Inc., Cuyahoga App. No. 95839,

, ¶ 21.

Whether a clause is unconscionable is a question of law.

The party challenging the enforceability of the contract has the burden to establish both procedural and substantive

unconscionability. Id at ¶ 22.

“Substantive unconscionability involves those factors which relate to the contract terms themselves, and whether they are commercially reasonable. Procedural unconscionability involves those factors bearing on the relative bargaining position of the contracting parties. These factors may include age, education, intelligence, business acumen and experience, relative bargaining power, who drafted the contract, and whether the terms were explained to the weaker party.”

(Internal citations and quotations omitted.) Id. at ¶ 23.

{¶ 11} Pruitt raises several arguments attacking the validity of the exculpatory

clause. He argues that the agreement is ambiguous, inconspicious, against public policy,

and unconscionable.

{¶ 12} Although Pruitt claims the release is against public policy, Ohio courts have

consistently held to the contrary. See Lamb, Cuyahoga App. No. 73144.

“Additionally, we note that, although an exculpatory clause to limit one’s liability due to

negligence may be valid and enforceable, Ohio law finds that such a clause is ineffective

where the party seeking protection failed to exercise any care whatsoever, where there

was willful or wanton misconduct, or where the clause is against important public policy

concerns, unconscionable, or vague and ambiguous.” Ohio Cas. Ins. Co. v. D & J

Distrib. & Mfg. Inc., Lucas App. No. L-08-1104,

, ¶ 36. Pruitt’s sole

claim advanced is one for negligence; therefore, our review is limited to whether the

exculpatory clause is unconscionable, vague, or ambiguous. {¶ 13} Pruitt first argues that the exculpatory clause is unconscionable because the

parties were of unequal bargaining power, Pruitt had no opportunity to bargain for or

negotiate the terms of the release, and no representative from Strong Style explained the

terms of the clause. Pruitt relies on Hartford Fire Ins. Co. v. Siefert, Cuyahoga App. No.

93291,

, for the proposition of law that a release is unenforceable if the

party against whom the enforcement is sought has unequal bargaining power or has not

been provided the opportunity for nonexculpatory contract options that could be

purchased for greater consideration. Pruitt’s reliance is misplaced.

{¶ 14} In Siefert, the defendant rented a skid steer, a piece of heavy equipment.

The defendant wrecked the engine on the skid steer, and the insurance company asserted

its subrogation right against him. The defendant claimed that the rental company was

negligent in failing to ensure that he was an acceptable operator of the machine and to

properly demonstrate safe handling techniques. This court, albeit after finding that the

release was unenforceable, found that the defendant failed to demonstrate that the rental

company was negligent. This alone distinguishes Siefert from the facts of this case.

Whether the contract in Siefert was enforceable was moot because of the lack of

negligence. However, in deciding that the release was not enforceable, this court relied

on Orlett v. Suburban Propane (1989),

,

, which

cites Motorists Mut. Ins. Co. v. Jones (1966),

,

.

{¶ 15} The Motorists court teaches that “[g]enerally, a contractual provision which

exempts a party from liability for his negligence will be enforced when: [(1)] [t]he contracting parties stand in roughly equal bargaining positions, or [(2)] [w]hen the

positions are somewhat unequal but the inferior party is given an option of excluding the

exemption for additional consideration.”

. In other words, the analysis

advanced in Motorists determined under what conditions a release of liability would be

enforced. Motorists does not stand for the proposition that both of the conditions must

be met to have an enforceable exculpatory provision. Thus, the negation of either of the

two above conditions does not necessarily void the release provision of the contract.

{¶ 16} For that determination, we rely on the doctrine of unconscionability. In

order to rescind an unconscionable contract, the party seeking rescission must show both

procedural and substantive unconscionability. Short,

, ¶ 21. Simply

relying on the unequal bargaining position of the parties, part of the procedural

unconscionability analysis, is insufficient.

{¶ 17} Pruitt simply argues that Strong Style drafted the contract and had unequal

bargaining power. The facts of this case do not support his argument. Pruitt served in

the military, attended college, and was employed. Moreover, even though he argues that

he did not understand the terms of the release, Pruitt claims to have not read the terms

because the release was “buried within the small print of a separate document.”

{¶ 18} In reviewing the exculpatory clause, we agree with the trial court that the

terms and conditions are clearly set forth. The release is on the front page of a

double-sided document, and the entire clause is underlined to ensure it stood out from the

rest of the non-underlined text. The last sentence specifically notifies Pruitt that he is waiving any claim for negligence against Strong Style. Finally, immediately preceding

Pruitt’s signature is a paragraph in bold type stating that Pruitt read and understood the

terms of the rules and regulations prior to signing. At that point, Pruitt was free to walk

away from the contract if he did not like the terms proposed by Strong Style. See

Wallace v. Ganley Auto Group, Cuyahoga App. No. 95081,

(finding no

merit to the argument that an arbitration provision is unconscionable when the terms are

clearly laid out for the parties and the contract contained a clause that the signor read and

understood the terms of the contract). We accordingly find that Pruitt has not met his

burden to show that the release is procedurally unconscionable, much less procedurally

and substantively unconscionable.1

{¶ 19} Finally, the terms of the release are clear and unambiguous. The release

provides the following: “You acknowledge that you carefully read this Waiver and

Release and fully understand that it is a release of liability. You are waiving any right

that you may have to bring a legal action to assert a claim against Strong Style Fitness and

Training Center for our negligence.”

{¶ 20} The terms of the contract are clear.2 Pruitt released Strong Style and its

employees, representatives, and agents from all claims of negligence, and the contract

1 We note, although not argued, that properly drafted releases from liability within fitness club contracts have been deemed to not be unconscionable. See Lamb, Cuyahoga App. No. 73144 (finding that exculpatory clauses in fitness club contracts are not unconscionable). Such a finding necessarily means that those releases are substantively conscionable and therefore commercially reasonable. 2 Pruitt’s reliance on Holmes v. Health & Tennis Corp. of Am. (1995), 103 Ohio App.3d further informed him that he relinquished some of his legal rights. Pruitt claims that the

release clause is silent as to personal trainers. However, the clause he referenced

provides that all personal training “shall be conducted solely by [Strong Style] and its

staff.” It is therefore undisputed that Lyons, as a personal trainer, was employed by

Strong Style, and the terms of the release relieve Strong Style and Lyons of liability for

Lyons’s negligent actions. Pruitt’s sole assignment of error is overruled.

{¶ 21} Because the release provision of the agreement is enforceable, we need not

determine whether Pruitt established a prima facie claim of negligence. Even if he did,

the release prohibits recovery.

{¶ 22} Pruitt released Strong Style from liability for any negligent act. The facts

of this case are unfortunate, but the trial court did not err by granting summary judgment

in favor of Strong Style based on the release. The terms of the agreement were not

inconspicious, unconscionable, ambiguous, or against public policy. There being no

genuine issue of material fact, Strong Style was entitled to judgment as a matter of law.

It appears from the undisputed evidence, construed most strongly in Pruitt’s favor, that

reasonable minds can come to but one conclusion adverse to Pruitt. The terms of the

364,

, to establish an ambiguity is misplaced. The agreement in Holmes involved an express assumption of the risk that provided: “Use of our facilities is at your own risk, and we shall not be liable for any injury or damages resulting from your use of our services and facilities.” The Holmes court determined that such language was ambiguous with respect to the parties’ intent to waive future claims of negligence. This is distinguishable from the current case. The clause in question specifically notifies Pruitt that he is waiving all future claims of negligence. agreement prohibited Pruitt from advancing a claim of negligence against Strong Style.

There being no other claims in the complaint, the trial court’s decision is affirmed.

It is ordered that appellees recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

SEAN C. GALLAGHER, PRESIDING JUDGE

KATHLEEN ANN KEOUGH, J., and EILEEN A. GALLAGHER, J., CONCUR