Kotcherquina v. Fitness Premier Management LLC
ORDER granting 21 Defendant's Motion for Summary Judgment. Signed by Judge James M. Moody on 3/2/12. (kpr)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
CASE NO. 4:11CV00342 JMM
FITNESS PREMIER MANAGEMENT, LLC
D/B/A FITNESS PREMIERE OF LITTLE ROCK, ET AL.
Pending before the Court is Defendant’s Motion for Summary Judgment to which
Plaintiff has responded. For the reasons stated below, the motion is granted (#21).
Plaintiff brings a claim of negligence based upon an injury she suffered on August 31,
2010, at Defendant Fitness Premier Management, LLC, d/b/a Fitness Premiere’s gym (“Fitness
Premiere”) while under the supervision of a Fitness Premiere personal trainer, Defendant
Raymond “Trey” Gruver. Plaintiff alleges that Fitness Premiere failed to provide Plaintiff with a
qualified or certified personal trainer and that both Defendants failed to use ordinary care under
Defendants contend that Plaintiff signed exculpatory agreements with each of them prior
to the August 31, 2010 incident which caused her injury and that these exculpatory agreements
released them from any liability for injuries or damages resulting from exercising at Fitness
Premiere with or without a Fitness Premiere trainer.
Defendant Fitness Premiere is a private fitness center located in Little Rock, Arkansas.
On September 15, 2007, Plaintiff signed a fitness Membership Agreement with Fitness Premiere,
which for a monthly fee, allowed her to use the exercise equipment, personal training services,
and other facilities offered by Fitness Premiere. The Membership Agreement contained a
exculpatory provision entitled “Waiver and Release.”
The exculpatory provision stated:
Waiver and Release: I am aware that physical exercise is a calculated
risk activity and that using the Club’s exercise machines, free weights, tanning,
personal training services, and any other facilities and related services offered by
the Club involves inherent risks and dangers, including loss of or damage to
personal property and serious personal injury or death. I am aware of and
understand the scope, nature, and extent of the risks involved in the activities
contemplated by this Release and Waiver. I voluntarily assume and freely choose
to incur any and all such risks of loss, damage, or injury, including death,
including, but not limited to, the risk of harms caused in whole or in part by the
unintended conduct of the Club.
On July 19, 2010, Plaintiff signed a one-page Personal Training Agreement which stated:
I am aware that weight training is a calculated risk activity and that working with
a Fitness Premier/Personalized Training Inc. Personal Trainer involves inherent
risks and dangers, including loss or damage of personal property, serious personal
injury and/or death. I am aware of and understand the scope, nature and extent of
the risks involved in the activities contemplated by this Release and Waiver. I
voluntarily assume and freely chose (sic) to incur any and all such risks of loss,
damage or injury, including death, but not limited to, the risk of harms caused
while or part of by the unintentional conduct of a Fitness Premier/Personalized
Training Inc. Personal Trainer. I agree to indemnify and hold harmless Fitness
Premier/Personalized Training Inc. Personal Trainer and Fitness Premier against
any and all loss, damage, cost and expense which may result to me as a result of
This latter document was also signed by Defendant Gruver on that same date. Plaintiff
understood the Membership Agreement and the Personal Training Agreements to be legal
contracts and understood the meaning of “waiver.”
An exculpatory contract is one where a party seeks to absolve himself in advance of the
consequences of his own negligence. Finagin v. Ark. Dev. Fin. Auth., 355 Ark. 440, 455, 139
S.W.3d 797, 806 (2003). Contracts that exempt a party from liability for negligence are not
favored by the law. Plant v. Wilbur, 345 Ark. 487, 493, 47 S.W.3d 889, 893 (2001).
However, exculpatory contracts are not invalid per se. See Id. They are strictly construed
against the party relying on them, and the to be valid the contract must clearly set out what
negligent liability is to be avoided. See Finagin v. Ark. Dev. Fin. Auth., 355 Ark. at 455, 139
S.W.3d at 806.
In addition to these two rules of construction, Arkansas courts have stated that they are
not restricted to the literal language of the contract but “will also consider the facts and
circumstances surrounding the execution of the release in order to determine the intent of the
parties.” Id. Arkansas courts, in deciding the validity of exculpatory clauses, consider three
factors: (1) whether the party is knowledgeable of the potential liability that is being released; (2)
whether the party is benefitting from the activity which may lead to the potential liability that is
being released; and (3) whether the contract that contains the clause was fairly entered into. Id.
at 458, 139 S.W.3d at 808.
The Court finds that the agreements signed by Plaintiff are clear and unambiguous.
Moreover, Plaintiff’s testified that in 2004 or 2005 she had a membership and the services of a
fitness trainer in another gym prior to joining Fitness Premiere in 2007. Based upon this
testimony Plaintiff clearly knew the risks associated with working out in a gym and working
with a fitness trainer in 2007 and 2010 when she signed agreements with Fitness Premiere and
Gruver. Moreover, there is evidence that Plaintiff benefitted from the activity as she stated that
she was happier and had more energy when she exercised.
Plaintiff’s testified that she signed her Membership Agreement, and signed and read her
Personal Training Agreement. She also testified that she understood the meaning of the word
“waiver.” See Hipp v. Vernon L. Smith And Associates, Inc., 2011 Ark. App. 611 at 6, 2011 WL
4824296 (2011) (the general rule is that a person who signs a document is bound under the law
to know the contents unless signature is procured by fraudulent representations of what a
document contains). There is no evidence that either of the Defendants made any fraudulent
representations concerning the contents of their contracts to Plaintiff.
The September 15, 2007 contract between Plaintiff and Fitness Premiere and the July 19,
2010 contract between Plaintiff and Defendant Gruver are valid contracts signed by Plaintiff
which released each of these Defendants from liability.
Plaintiff’s contends that Fitness Premiere cannot benefit from the July 19, 2010 contract
because its agent did not sign the contract, or alternatively because of Gruver’s alleged status as
an independent contractor. These arguments are without merit because regardless of whether
Fitness Premiere’s agent signed the July contract or regardless of whether Gruver is an employee
or an independent contractor, the September 15, 2007 contract between Plaintiff and Fitness
Premiere specifically releases Fitness Premiere from liability including liability associated with
personal training services.
The Court has taken into account that the Plaintiff is a resident alien for whom English is
a second language. However, Plaintiff has been living in the United States since 1999 and her
testimony clearly reflects than she understands English and understood the consequences of her
actions in signing these two contracts.
After considering all the facts and circumstances surrounding the execution of the
release, the Court finds that these exculpatory agreements are valid and a complete defense to
Plaintiff’s claims for damages.
IT IS SO ORDERED THIS
March , 2012.
James M. Moody
United States District Judge
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