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Exculpatory clause upheld in New Hampshire
November 7, 2020
Exculpatory clause upheld in New Hampshire
            The plaintiff, Ladue, was injured in a fall at a gym  operated by the defendant, Planet Fitness and brought a negligence claim against Planet Fitness who moved for summary judgment. The lower court granted the motion, finding that the claim was barred by a release of liability provision in her membership agreement, and the appeal court affirmed.
            In April 2017, Ladue entered into a membership agreement with Planet Fitness. The agreement included a liability release, which stated, in part: 
            “I understand and voluntarily accept full responsibility ... for the risk of injury or loss arising out of or related to my use ... of the facilities,” and “I further agree that Planet Fitness ... will not be liable for any injury ... resulting from the negligent conduct or omission of Planet Fitness, PF Corporate, or anyone acting on their behalf, whether related to exercise or not.”
            In September 2017, Ladue went to a Planet Fitness gym. After exercising on a treadmill, Ladue walked toward a trash bin to dispose of a towel that she had used to wipe down the equipment. Ladue tripped and fell on an “irregular and uneven walkway,” and her right arm “struck an uncovered, unprotected bolt” extending from an interior chain link fence. Ladue suffered a gash on her right arm and a broken wrist.
            The court starts with a general statement of the law in New Hampshire:
            “This court will not enforce an exculpatory contract that contravenes public policy.”  “Once an exculpatory agreement is found unobjectionable as a matter of public policy,”  we will enforce the agreement if “the plaintiff understood the import of the agreement or a reasonable person in his position would have understood the import of the agreement. The plaintiff's claims must also have been “within the contemplation of the parties when they executed the contract.” When a defendant asserts that a plaintiff's claim is barred by an exculpatory agreement, the defendant “must show that [the] exculpatory agreement does not contravene public policy; i.e., that no special relationship existed between the parties and that there was no other disparity in bargaining power.”  “We have found an agreement to be against public policy if, among other things, it is injurious to the interests of the public, violates some public statute, or tends to interfere with the public welfare or safety.” 
            Special Relationship:
            In New Hampshire, “a special relationship exists where the defendant is a common carrier, innkeeper or public utility, or is otherwise charged with a duty of public service. A special relationship also exists if the defendant provides a service that is “of great importance to the public,” or is “a matter of practical necessity.”  Additionally, a special relationship may exist when the plaintiff is both dependent on and legally compelled to use the defendant's services.  (ruling that a special relationship exists between schools and students because of the compulsory nature of school attendance, the reliance of parents and students on schools to provide a safe environment, and the critical importance of education to society).
            Accordingly, whether such a special relationship exists turns largely on the importance and necessity of the services provided by the defendant, and not, as Ladue suggests, on whether a facility is open to the public; “the fact that [a recreational facility] is available for public use is not dispositive of a special relationship.”  In fact, we have held that, because a given recreational activity was not of great importance or necessity, no special relationship existed between a recreational facility and members of the public using the facility. (finding no special relationship between a go-kart racing facility that served “a segment of the public” and a racer who used the facility);  (finding no special relationship between a ski facility that was open for public use and a snowboarder who used the facility).
Here we cannot say that the recreational use of a private gym is of such great importance or necessity to the public that it creates a special relationship, such that the release is prohibited as against public policy.  Exercising at a private gym is not a matter of practical necessity. (stating that services offered by personal training facility “did not affect the public interest nor could they be considered as necessary or essential”); (stating that “[t]he services offered by a health club are not of great importance or of practical necessity to the public as a whole”);  (stating that, although “[m]embership in a health club is certainly beneficial ... that is a far cry from declaring health clubs an indispensable necessity as a matter of public policy”). Nor is using a private gym compulsory. (distinguishing Marquay, and finding no special relationship between employers and employees because employment is not compulsory, and employers, unlike schools, do not act as parental proxies). Therefore, because use of a private gym is neither a necessity nor a service of great importance to the public, and since it is undisputed that Planet Fitness is not “a common carrier, innkeeper or public utility, or ... otherwise charged with a duty of public service,” we conclude that no special relationship exists between Ladue and Planet Fitness that would cause the liability release to be prohibited as against public policy.
            The court concluded that no public policy issue existed and that the contract should be enforced to give meaning to the plain language in the contract.  Though no alarm cases were cited in the decision we can expect that a court would find that 
  *  alarm companies are not utility services
  *  alarm companies are not essential service
  *  even a violation of a statute [such as a building code] would not vitiate and override the contract terms
            We can expect a court to uphold the exculpatory clause in the Standard Alarm Agreement.
You can read the case in its entirety on the K&K website under Alarm Law IssuesLeading Cases State by State, New Hampshire.  Ladue v Pla-Fit Health  S.Ct N Hampshire  Oct 30, 2020
            I should also point out that some states, such as New York, specially prohibit the enforcement of exculpatory clauses in gym and other recreational contracts, but not, thankfully,  alarm contracts.

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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301