JA KANG v. LA FITNESS et al
OPINION. Signed by Judge Katharine S. Hayden on 12/29/2016. (seb)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
SOON JA KANG
Civil No.: 2:14-cv-07147 (KSH) (CLW)
LA FITNESS, LA FITNESS OF SOUTH
PLAINFIELD, JOHN DOES 1–5, et al.,
Katharine S. Hayden, U.S.D.J.
Before the Court is defendants’ motion for summary judgment as to the validity and
enforceability of an exculpatory clause in a fitness center membership agreement with plaintiff.
For the reasons set forth below, the Court finds the liability waiver to be valid and enforceable
and defendants’ motion is granted.
Fitness International, LLC d/b/a LA Fitness (incorrectly designated as LA Fitness of
South Plainfield) (“LA Fitness”) operates a fitness facility located in Piscataway, NJ. See Final
Pretrial Order Stipulation of Facts (“SOF”) (D.E. 19), at ¶ 1. On December 30, 2013, plaintiff
Soon Ja Kang went to LA Fitness with her husband to sign up for membership. Id. at ¶ 2. The
membership agreement she signed states in relevant part:
IMPORTANT: RELEASE AND WAIVER OF LIABILITY AND
INDEMNITY. You hereby acknowledge and agree that use by
Member and/or Member’s minor children of LA Fitness’ facilities,
services, equipment or premises, involves risks of injury to persons
and property, including those described below, and Member
assumes full responsibility for such risks. In consideration of
Member and Member’s minor children being permitted to enter any
facility of LA Fitness (a “Club”) for any purpose including, but not
limited to, observation, use of facilities, services or equipment, or
participation in any way, Member agrees to the following: Member
hereby releases and holds LA Fitness, its directors, officers,
employees, and agents harmless from all liability to Member,
Member’s children and Member’s personal representatives, assigns,
heirs, and next of kin for any loss or damage, and forever gives up
any claim or demands therefore, on account of injury to Member’s
person or property, including injury leading to the death of Member,
whether caused by the active or passive negligence of LA Fitness or
otherwise, to the fullest extent permitted by law, while Member or
Member’s minor children are in, upon, or about LA Fitness’
premises or using any LA Fitness facilities, services or equipment.
Member also hereby agrees to indemnify LA Fitness from any loss,
liability, damage or cost LA Fitness may incur due to the presence
of Member or Member’s children in, upon or about the LA Fitness
premises or in any way observing or using any facilities or
equipment of LA Fitness whether caused by the negligence of
Member(s) or otherwise. You represent (a) that Member and
Member’s minor children are in good physical condition and have
no disability, illness, or other condition that could prevent
Member(s) from exercising without injury or impairment of health,
and (b) that Member has consulted a physician concerning an
exercise program that will not risk injury to Member or impairment
of Member’s health. Such risk of injury includes (but is not limited
to): injuries arising from use by Member or others of exercise
equipment and machines; injuries arising from participation by
Member or others in supervised or unsupervised activities or
programs at a Club; injuries and medical disorders arising from
exercising at a Club such as heart attacks, strokes, heat stress,
sprains, broken bones, and torn muscles and ligaments, among
others; and accidental injuries occurring anywhere in Club dressing
rooms, showers and other facilities. Member further expressly
agrees that the foregoing release, waiver and indemnity agreement
is intended to be as broad and inclusive as is permitted by the law of
the State of New Jersey and that if any portion thereof is held
invalid, it is agreed that the balance shall, notwithstanding, continue
in full force and effect. Member has read this release and waiver of
liability and indemnity clause, and agrees that no oral
representations, statements or inducement apart from this
Agreement has been made.
LA Fitness Moving Br., Exh. E (D.E. 22-7).
Kang and her husband do not read or understand English, but their daughter was present
to translate for them when they signed up. See SOF, at ¶¶ 4–5. Kang signed a membership
agreement. She did not initial next to the waiver and liability provision in her membership
agreement; however, her husband was asked to initial next to the same provision in his
membership agreement, and he did so. Id. at ¶ 6.
On December 31, 2013, Kang was injured while working out on a chin/dip assist pull up
machine at LA Fitness’s Piscataway location. See SOF, at ¶¶ 2, 7. She filed the instant action on
September 29, 2014 in state court, and LA Fitness filed a notice of removal in this Court on
November 14, 2014 on the basis of diversity jurisdiction (D.E. 1). The complaint alleges that
Kang was injured as a result of negligence on the part of LA Fitness. Id. Prior to completion of
expert discovery, LA Fitness moved for summary judgment on the issue of whether the waiver
and liability provision bars the instant action. The motion was fully briefed. (D.E. 22, 25, 26).
The Court makes its decision on the paper.
Summary judgment is warranted where the moving party demonstrates that “there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a), (c). The parties have conducted discovery on the circumstances
surrounding the formation of Kang’s membership agreement and, as set forth in the analysis
below, all facts relevant to the enforceability of the waiver provision are essentially undisputed
as set forth in the Final Pretrial Order Stipulation of Facts (D.E. 19). In determining whether the
waiver provision is enforceable as a matter of law, the Court “view[s] the evidence in the light
most favorable to [Kang] and draw[s] all justifiable, reasonable inferences in [her] favor.” Sgro
v. Bloomberg L.P., 331 F. Appx. 932, 937 (3d Cir. 2009).
Pursuant to the release and waiver of liability provision in her membership agreement,
Kang released and held LA Fitness harmless for all injuries she might suffer “whether caused by
the active or passive negligence of LA Fitness or otherwise,” while she was “in, upon, or about
LA Fitness’ premises or using any LA Fitness facilities, services or equipment.” LA Fitness
Moving Br., Exh. E (D.E. 22-7). As her negligence claim for an injury allegedly sustained while
using a piece of workout equipment at an LA Fitness facility clearly falls within the ambit of the
liability waiver, the issue becomes whether the waiver itself is enforceable against Kang on the
facts of this case.
In Stelluti v. Casapenn Enterprises, LLC, 408 N.J. Super. 435, 454 (App. Div. 2009),
aff'd, 203 N.J. 286 (2010), the New Jersey Appellate Division addressed the enforceability of
exculpatory releases in fitness center membership agreements:
Such a release is enforceable only if: (1) it does not adversely affect
the public interest; (2) the exculpated party is not under a legal duty
to perform; (3) it does not involve a public utility or common carrier;
or (4) the contract does not grow out of unequal bargaining power
or is otherwise unconscionable.
Id. The third factor is inapplicable here, because LA Fitness is not a public utility or common
carrier. See Kang Opp. Br., at p. 6. The Court analyzes the remaining Stelluti factors in turn.
1. Does the Exculpatory Clause Adversely Affect the Public Interest?
LA Fitness argues that the exculpatory clause in this case does not adversely affect the
public interest because it is “a facility that encourages New Jersey’s public policy promoting
physical fitness.” LA Fitness Moving Br., at p. 6. Noting the important policy objective of
promoting public health, the Stelutti court held:
[W]e are satisfied that, at least with respect to equipment being used
at the club in the course of an exercise class or other athletic activity,
the exculpatory agreement's disclaimer of liability for ordinary
negligence is reasonable and not offensive to public policy.
Stelluti, 408 N.J. Super. at 459. The Court agrees with the analysis in Stelluti and finds
that the exculpatory clause here does not adversely affect the public interest, at least to the extent
that it purports to exculpate LA Fitness with respect to acts or omissions amounting to ordinary
Kang argues that public policy promoting physical fitness “cannot counteract the other
public policy reasons that are in place to protect against improper liability waivers.” Kang Opp.
Br., at p. 7. To that end, she argues that the release in this case violates the New Jersey Plain
Language Act, which states that “[a] consumer contract entered into on or after the effective date
of this amendatory and supplementary act shall be written in a simple, clear, understandable and
easily readable way.” N.J. Stat. Ann. § 56:12-2. Specifically, Kang argues that the small font
size and margins in the contract are such that “[s]omeone who can read and understand English
would be substantially confused by this agreement[.]” Kang Opp. Br., at p. 8.
To determine whether the waiver provision violates the Plain Language Act, the Court
turns to the plain language of the act itself. Section 56:12-10 provides:
To insure that a consumer contract shall be simple, clear,
understandable and easily readable, the following are examples of
guidelines that a court . . . may consider in determining whether a
consumer contract as a whole complies with this act:
Cross references that are confusing;
Sentences that are of greater length than necessary;
Sentences that contain double negatives and exceptions to exceptions;
Sentences and sections that are in a confusing or illogical order;
The use of words with obsolete meanings or words that differ in their legal
meaning from their common ordinary meaning;
(6) Frequent use of Old English and Middle English words and Latin and French
N.J. Stat. Ann. § 56:12-10. Section 56:12-10 further provides:
The following are examples of guidelines that a court . . . may
consider in determining whether the consumer contract as a whole
complies with this act:
(1) Sections shall be logically divided and captioned;
(2) A table of contents or alphabetical index shall be used for all contracts with
more than 3,000 words;
(3) Conditions and exceptions to the main promise of the agreement shall be given
equal prominence with the main promise, and shall be in at least 10 point type.
Id. A Court has discretion as to how much consideration should be given to the above-listed
statutory guidelines in finding a violation of the act. See Boddy v. Cigna Prop. & Cas.
Companies, 334 N.J. Super. 649, 655 (App. Div. 2000).
Reviewing Kang’s membership agreement in light of the above guidelines, the Court
finds that the waiver provision does not violate the New Jersey Plain Language Act. The waiver
provision does not contain any cross references, nor does it contain any double negatives or
exceptions to exceptions. It does not contain words with obsolete meanings, nor is it clouded by
the use of Old English, Middle English, Latin or French phrases. And Kang does not argue—nor
does the Court find—that the sentences of the waiver provision are set forth in a confusing or
Instead, Kang argues that the waiver provision violates the Plain Language Act because
“[t]he size of the font (print) is about size 8, whereas the standard size used in everyday
documents is size 12[,]” and because “[t]he margins on the sides of the pages are about 0.5 inch .
. . reflecting the intentions of the drafter to squeeze in additional words.” Kang Opp. Br., at p. 8.
However, applying the above guidelines, the Court does not find that the waiver provision in this
case is any less prominent that the remainder of the agreement. See N.J. Stat. Ann. § 56:1210b(3). To the contrary, the waiver and liability provision is the only clause in the membership
agreement preceded by a title in all caps (“IMPORTANT: RELEASE AND WAIVER OF
LIABILITY AND INDEMNITY”), and it is the only clause that is fully enclosed by a border,
creating a visual separation between the waiver and the rest of the agreement.
The Court finds that the waiver provision in this case does not offend public policy under
Stelluti and does not otherwise violate the New Jersey Plain Language Act.
2. Is LA Fitness Under a Legal Duty To Perform?
LA Fitness argues that its relationship with Kang does not create any duties prescribed by
statute or regulation. See LA Fitness Moving Br., at pp. 6–8. New Jersey courts have found
liability waivers to be invalid as against public policy where they conflict with legislatively
imposed duties. For example, in Hy-Grade Oil Co. v. New Jersey Bank, 138 N.J. Super. 112,
118 (App. Div. 1975), the court found it against public policy for a bank to exculpate itself from
liability or responsibility for negligence in the performance of its function as a night depository
service, in part due to the “extensive statutory regulations covering every phase of the banking
business[.]” Id. at 118. Similarly, in McCarthy v. Nat'l Ass'n for Stock Car Auto Racing, Inc., 48
N.J. 539, 543 (1967), the New Jersey Supreme Court held a liability waiver invalid as against
public policy because it purported to contract away safety requirements prescribed by statute
dealing with motor vehicle racing. See id. at 543 (“[t]he prescribed safety requirements may not
be contracted away, for if they could be the salient protective purposes of the legislation would
largely be nullified”).
Kang argues that “although there are no statutes specific to fitness centers, there are
several national associations that have established standards that apply to the fitness industry[.]”
Kang Opp. Br., at pp. 8–9. However, there is no indication that these national standards apply
with the force of law in New Jersey so as to constitute public policy of the state. Kang further
argues that the Stelluti court acknowledged the well-established duties of care that New Jersey
business owners owe to patrons that enter their premises. See Kang Opp. Br., at p. 8. However,
as noted above in Part B.1. supra, Stelluti expressly held that fitness center liability waivers such
as the one at issue here do not violate public policy at least to the extent that they exculpate for
ordinary negligence. Stelluti, 408 N.J. Super. at 459. The Court finds that LA Fitness is not
under any legal duty that precludes its reliance on the liability waiver in this case.
3. Does the Contract Grow Out of Unequal Bargaining Power or is it Otherwise
With respect to the final Stelluti factor, Kang argues that the waiver: (1) was not the
product of mutual assent; and (2) is unconscionable as a term in a contract of adhesion. See
Kang Opp. Br., at pp. 10–14. The Court addresses both arguments in turn.
a. Mutual Assent
Kang argues that the waiver was invalid for lack of mutual assent, based upon the
following assertions: (1) Neither Kang nor her husband speaks English; (2) LA Fitness knew as
much, as the Kangs’ daughter was present to translate; (3) an LA Fitness employee explained the
contract duration and payment terms to the Kangs’ daughter, but did not explain the liability
waiver to her; (4) only Kang’s husband was asked to initial next to the waiver provision in his
membership agreement, but no one explained to him what he was initialing; and (5) no employee
went over the waiver provision with Kang or her daughter. See Kang Opp. Br., at pp. 10–11.
Accordingly, Kang argues that she did not “clearly, unequivocally, and decisively surrender[ ]
her rights” as is required for a valid waiver. Id. at p. 11.
The Court finds these arguments unavailing. As an initial matter, Kang’s inability to
speak English does not bar her from becoming contractually bound. Notwithstanding the fact
that her daughter was present to translate, New Jersey courts have unequivocally held that in the
absence of fraud, one who signs an agreement is conclusively presumed to understand and assent
to its terms and legal effect:
In the absence of fraud or imposition, when one fails to read a
contract before signing it, the provisions are nevertheless binding,
and the party is conclusively presumed to understand and assent to
its terms and legal effect . . . . Even illiterate individuals have been
held bound by a signed contract in the absence of misrepresentation.
One who signs a document in those circumstances should know its
contents or have it read (or otherwise have the contents made
known) to him or her.
Statewide Realty Co. v. Fid. Mgmt. & Research Co., 259 N.J. Super. 59, 73 (Law. Div. 1992)
(internal citations and quotations omitted); see also Herrera v. Twp. of S. Orange Vill., 270 N.J.
Super. 417, 423, 637 (App. Div. 1993) (enforcing release agreement in the absence of fraud,
notwithstanding testimony by plaintiff that she did not understand the release because she could
not read English).
Under the New Jersey case law cited above, absent allegations of fraud, deceit, or
misrepresentation which Kang does not make here, she is conclusively presumed to have
understood and assented to the membership agreement’s terms—including the waiver—and legal
effect. See Stelluti v. Casapenn Enterprises, LLC, 203 N.J. 286, 305 (2010) (“Although Stelluti
argues that she did not know what she was signing, she does not claim that she signed the waiver
form as the result of fraud, deceit, or misrepresentation. Therefore, the trial court was well within
reason to presume that she understood the terms of the agreement . . . and the finding to that
effect is unassailable.”)
Nor does the fact that LA Fitness may not have explained the waiver to her or her
daughter preclude enforcement. See Stelluti v. Casapenn Enterprises, LLC, 203 N.J. 286, 301–
02 (2010) (enforcing exculpatory clause while giving plaintiff benefit of inference that
“Powerhouse may not have explained to Stelluti the legal effect of the contract that released
Powerhouse from liability”).
Finally, the Court is not aware of, nor has Kang cited, any requirement that she must have
initialed the waiver provision for that clause to be enforceable against her. While she did not
initial the waiver provision, she did sign the membership agreement containing it. In the absence
of fraud, that is enough to bind her to its terms. See Statewide, 259 N.J. Super. at 73.
Kang also argues that even if the waiver is found to be enforceable, the Court should
invalidate it as a contract of adhesion. “[T]he essential nature of a contract of adhesion is that it
is presented on a take-it-or-leave-it basis, commonly in a standardized printed form, without the
opportunity for the ‘adhering’ party to negotiate except perhaps on a few particulars.” Rudbart v.
N. Jersey Dist. Water Supply Comm'n, 127 N.J. 344, 353, 605 A.2d 681, 685 (1992). Kang’s
unconscionability argument is essentially an amalgamation of all of her arguments summarized
above: that as someone who does not speak English she lacked the sophistication to understand
the terms to which she was agreeing, LA Fitness knew that she was in no position to understand
those terms, she did not initial next to the waiver provision, the waiver is one-sided and printed
on a standard form agreement, and she was not in a position to negotiate the terms of the
agreement. Kang Opp. Br., at pp. 12–14.
Notably, not all contracts of adhesion are unenforceable. In Stelluti, the New Jersey
Supreme Court held:
Here, Powerhouse’s agreement was a standard pre-printed form
presented to Stelluti and other prospective members on a typical
‘take-it-or-leave-it basis.’ No doubt, this agreement was one of
adhesion. As for the relative bargaining positions of the parties, . .
. we assume that Stelluti was a layperson without any specialized
knowledge about contracts generally or exculpatory ones
specifically. Giving her the benefit of all inferences from the
record, including that Powerhouse may not have explained to
Stelluti the legal effect of the contract that released Powerhouse
from liability, we nevertheless do not regard her in a classic
‘position of unequal bargaining power’ such that the contract must
be voided. As the Appellate Division decision noted, Stelluti could
have taken her business to another fitness club, could have found
another means of exercise aside from joining a private gym, or
could have thought about it and even sought advice before signing
up and using the facility's equipment. No time limitation was
imposed on her ability to review and consider whether to sign the
agreement. In sum, although the terms of the agreement were
presented ‘as is’ to Stelluti, rendering this a fairly typical adhesion
contract in its procedural aspects, we hold that the agreement was
not void based on any notion of procedural unconscionability.
Stelluti v. Casapenn Enterprises, LLC, 203 N.J. 286, 301–02 (2010).
Like the defendant in Stelluti, Kang was a layperson without any specialized knowledge
of exculpatory contracts, and the Court gives her the benefit of the inference that LA Fitness did
not explain the legal effect of the waiver provision to her. However, also like the defendant in
Stelluti, Kang was not under any undue pressure to execute the agreement and she could have
sought advice before signing. Indeed, her daughter was present to translate. As noted above, the
fact that Kang does not speak English does have any legal effect on the contract’s enforceability.
Thus, in accordance with Stelluti, the Court finds that although the LA Fitness membership
agreement may have been offered on a “take-it-or-leave-it” basis, it is not void on the basis of
Because the exculpatory clause does not offend public policy, the Court finds it to be
valid and enforceable. Accordingly, LA Fitness’s motion for summary judgment is granted.
For the foregoing reasons, defendants’ motion for summary judgment is granted, and the
clerk of the court is direct to close this case. An accompanying Order will be filed.
s/ Katharine S. Hayden___________
Katharine S. Hayden, U.S.D.J.
Dated: December 29, 2016
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