Opinion
No. CV 02-0818216 S
May 1, 2003
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
Defendant health club moves for summary judgment in this personal injury action by a patron injured when an exercise machine tipped over, on the ground that plaintiff signed a liability waiver.
Plaintiff concedes that she signed the waiver, initialed the first two paragraphs and that the waiver specifically covers the accident that took place.
Plaintiff argues, however, that summary judgment is inappropriate because there are several material questions raised by her affidavit and in her deposition, namely whether there was a lack of consideration, whether there was mutual consent and whether plaintiff was under duress. The thrust of these claimed questions of fact rest on the circumstances under which the plaintiff signed the waiver, described as the opening membership day of the health club, when the waiting lines were long and the applications hurriedly processed, so that she was rushed and not given ample opportunity to read and comprehend the application and the accompanying waiver.
There are ample Superior Court cases cited by both sides to support their positions.
Plaintiff cites a number of Superior Court decisions, as well as Di Eulio v. Goulet, 2 Conn. App. 701 (1984), to support her claim that the "rushed" circumstances attending her signing of the waiver presents a material question of fact as to whether there was sufficient time given to plaintiff to understanding the meaning and scope of the waiver.
On the other hand, defendant cites a number of decisions, including one by this court, affirming the validity of such waivers, holding that a person of mature years, who can read and write and signs a formal written contract affecting his pecuniary interests, has the duty to read it, and notice its contents will be imputed to that person. See Connors v. Reel Ice, Inc., 6 Conn.Ops. 950 (July 26, 2000, Wagner, J.), 27 Conn.L.Rptr. 610.
In the present case, there may be a question of fact whether a first time health club patron would view the tipping over of an exercise machine as a foreseeable risk covered by a waiver agreement signed under rushed circumstances at an opening day enrollment, claimed to have taken place in a "mad house" and a "chaotic" atmosphere. Cf. Gagliardi v. World Gym Fitness, 2002 Ct. Sup. 12286, No. CV 00-0500627, New Britain J.D. (August 27, 2002, Berger, J.), 33 Conn.L.Rptr. 176, involving in a similar waiver defense case, foreseeability of sweat on a gym floor causing a slippery condition.
In Di Eulio v. Goulet, our Appellate Court strongly discouraged disposition of a negligence case by summary judgment, where plaintiff claimed that "rushed circumstances" in signing a waiver of liability negated his understanding and assent to such a waiver.
Based on this authority, there appears to be a question of material fact as to whether, under all the circumstances, there was actual assent to the waiver by plaintiff.
Motion for Summary Judgment denied.
Wagner, JTR