HILLIS JAMES FORRESTER , Plaintiff - Appell ant , vs. ASPEN ATHLETIC CLUBS, L.L.C., SAFARI II, L.L.C., and THE HANSEN COMPANY, INC. , Defendant s - Appell ees .
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IN THE COURT OF APPEALS OF IOWA
No. 8-891 / 08-0745
Filed March 11, 2009
HILLIS JAMES FORRESTER,
Plaintiff-Appellant,
vs.
ASPEN ATHLETIC CLUBS, L.L.C.,
SAFARI II, L.L.C., and THE HANSEN COMPANY, INC.,
Defendants-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Karen A. Romano,
Judge.
A plaintiff appeals multiple summary judgment rulings in favor of several
defendants in his action arising out of an injury at a health club. AFFIRMED.
Kyle Reilly of Thomas J. Reilly Law Firm, P.C., Des Moines, for appellant.
Stephen Hardy of Grefe & Sidney, P.L.C., Des Moines, John Hodges and
Jason Madden of Bradshaw, Fowler, Proctor & Fairgrave, P.C., for appellee.
Heard by Vogel, P.J., and Vaitheswaran and Eisenhauer, JJ.
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VAITHESWARAN, J.
Hillis James Forrester appeals summary judgment rulings in favor of
several defendants in his action arising out of an injury at a health club. We
affirm.
I.
Background Facts and Proceedings
Forrester joined an Aspen Athletic Clubs facility. He signed a membership
agreement with the club that contained a release of liability clause. The release
stated:
The use of the Facilities at Aspen naturally involves risk of injury to
you or your guest, whether you or someone else cause it. As such,
you understand and voluntarily accept this risk and agree that
Aspen will not be liable for any injury, including, without limitation,
personal, bodily or mental injury, economic loss or any damage to
you, your spouse, guests, unborn child, or relatives resulting from
the negligence of Aspen or anyone on Aspen‟s behalf or anyone
using the Facilities.
Shortly after Forrester joined the club, he tripped over an electrical box as he was
walking from one part of the facility to another. The box was located in front of
the treadmills.
Forrester filed suit against Aspen and others identified as “Designer D,
Installer I, and Manufacturer M.” The district court granted summary judgment in
favor of Aspen based on the release.
After the statute of limitations expired, Forrester amended his petition to
include Safari II, L.L.C., the Hansen Company, Inc., Savage-Ver Ploeg &
Associates, Inc., and Paradise Flooring.
Safari, Hansen, and Savage filed
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motions for summary judgment, all of which were granted.1 Forrester appealed
the district court‟s rulings in favor of Aspen, Hansen, and Safari.2
II.
Analysis
Review in this case is for correction of errors at law. Huber v. Hovey, 501
N.W.2d 53, 55 (Iowa 1993). “When reviewing a grant of summary judgment we
ask whether the moving party has demonstrated the absence of any genuine
issue of material fact and is entitled to judgment as a matter of law.” Id.
A. Aspen
The district court ruled that the release in the membership agreement
encompassed the type of injury sustained by Forrester and precluded imposition
of liability on Aspen. Forrester contends this ruling was error. He asserts the
release (1) was “buried in the Agreement and Unnoticeable, and therefore
Unenforceable,” (2) did not cover the particular event causing his injuries, and (3)
was against public policy.
1. Placement of Release Language
We preliminarily address Aspen‟s contention that this issue was not
preserved for review. Although the district court‟s conclusions of law did not
explicitly address this argument, the findings of fact referred to the placement of
the release provision. Affording Forrester the benefit of the doubt, we conclude
this issue was preserved for review.
Generally a party is “bound by the documents [the party] signs even
though . . . it has not expressly accepted all of the contract provisions or is even
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2
Paradise was not served with process.
Forrester did not file an appeal as to Savage-Ver Ploeg.
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aware of them.” Joseph L. Wilmotte & Co. v. Rosenman Bros., 258 N.W.2d 317,
323 (Iowa 1977). Additionally, it is well settled that
if a party to a contract is able to read (the contract), has the
opportunity to do so, and fails to read the contract he cannot
thereafter be heard to say that he was ignorant of its terms and
conditions for the purpose of relieving himself from its obligation.
Id. (quoting Preston v. Howell, 219 Iowa 230, 236, 257 N.W. 415, 418 (1934)).
Forrester does not argue that he was unable to read Aspen‟s membership
agreement. That agreement contained the following language printed in italic
typeface on the front page, within one inch of the signature line: “See the back of
this Agreement for the Release of Liability and Assumption of Risk & Right to
Cancel upon death or disability.” The release was on the lower left-hand column
of the back page, preceded by the following language, in bold print: “Release of
Liability and Assumption of Risk.” As the court stated in Wilmotte,
[W]e are constrained to the view that a reasonable [person], on
reading the face of the confirmation documents, and particularly the
first sentence thereof referring to the provisions on the reverse side
would have looked at the back of the instrument before signing and
accepting the contract. A reasonable [person] would therefore
have had notice of the provisions on the back side of the
documents and would have accepted the terms on the back by
signing the documents.
Id. at 323–24. We conclude the district court did not err in enforcing the release
provision despite its placement in the membership agreement.
2. Coverage of Release Provision
Forrester next contends the release provision applies only to “[i]nherent
[r]isks of [e]xercising, and [he] was not [i]njured by such an [i]nherent [r]isk.”
When a contract does not contain any ambiguities, it is to be enforced as
written. Iowa Fuel & Minerals, Inc. v. Iowa State Bd. of Regents, 471 N.W.2d
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859, 862–63 (Iowa 1991). The district court concluded the Aspen‟s membership
agreement was not ambiguous. The court noted that the release encompassed
“personal, bodily, or mental injury” at “the Facilities” and pointed out that the
definition of “Facilities” was broad. The court wrote,
In the present case, the types of activities covered by the
agreement are spelled out in subsection 2 of the agreement.
Subsection 2(a) provides permission “to use Aspen‟s premises,
facilities,
equipment
and
services
(collectively
called
“Facilities”) . . . .” Ex. A. The use of broad designations, like
“premises, facilities, equipment and services,” demonstrates an
intent to encompass all potential activities of a member while on
Aspen‟s premises. The Court is unable to deduce any intent of the
parties to limit the liability exclusion to only acts of “exercising.”
Clearly, walking around Aspen‟s facilities from one exercise area to
another, or from an exercise area to locker rooms, is expected and
contemplated conduct under this agreement.
We discern no error in this conclusion.
“[W]e have repeatedly held that contracts exempting a party from its own
negligence are enforceable, and are not contrary to public policy.” Huber, 501
N.W.2d at 55; Rich v. Dyna Tech., Inc., 204 N.W.2d 867, 870 (Iowa 1973)
(stating that a release should “be construed according to its terms”). In Grabill v.
Adams County Fair & Racing Ass’n, 666 N.W.2d 592, 596 (Iowa 2003), the Iowa
Supreme Court specifically stated, “a releasing party does not need to have
contemplated the precise occurrence that caused injury as long as the
occurrence was within the broad range of events that might transpire with respect
to the matter being undertaken.” See also Korsmo v. Waverly Ski Club, 435
N.W.2d 746, 748 (Iowa Ct. App. 1988) (concluding release exempting liability
“from any and all rights, claims, demands and actions of any and every nature
whatsoever . . . sustained . . . before, during and after said competitions”
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encompassed activities at issue). Based on this precedent, we conclude Aspen‟s
release encompassed the injuries he sustained while walking to another part of
the facility.
3. Public Policy Argument
Forrester finally argues that the release of liability clause is against public
policy. This argument was not preserved for review. Therefore, we decline to
consider it. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a
fundamental doctrine of appellate review that issues must ordinarily be both
raised and decided by the district court before we will decide them on appeal.”).
B. Hansen Company
The district court dismissed Hansen Company on statute of limitations
grounds. Forrester contends this was error. We disagree.
The statute of limitations for injury to a person is two years. Iowa Code
§ 614.1(2) (2005). Forrester claimed his injury occurred on January 26, 2005.
The original petition was filed on December 7, 2006, which was within the twoyear limitations period. The petition, however, did not identify Hansen. It only
identified Aspen and “Designer D, Installer I, and Manufacturer M.” Hansen was
identified on July 6, 2007, more than two years after the claimed injury.
Forrester attempts to circumvent his late addition of Hansen by relying on
Iowa Code section 613.18(3). That section provides:
An action brought pursuant to this section [concerning
products liability], where the claimant certifies that the manufacturer
of the product is not yet identifiable, tolls the statute of limitations
against such manufacturer until such time as discovery in the case
has identified the manufacturer.
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Iowa Code § 613.18(3). Forrester specifically argues that the combination of his
attorney‟s signature on the petition, the effect given to that signature by another
provision, Iowa Code section 619.19,3 and the designation in the original petition
of the obviously fictitious “Manufacturer M” constituted the certification that the
manufacturer was not yet identifiable as required by section 613.18(3).
The district court rejected this argument, stating “Iowa Code § 619.19
does not provide support for Forrester‟s argument that his legal counsel‟s
signature on the original petition certifies that the manufacturer was unknown
after reasonable inquiry.” We discern no error in this conclusion. Assuming
without deciding that an attorney‟s signature on a petition could constitute a
certification under Iowa Code section 613.18(3), Forrester‟s original petition did
not state that Designer D, Installer I, and Manufacturer M were substituted
names for entities that were not yet identifiable. Accordingly, we conclude that
Iowa Code section 613.18(3) does not remove this case from the two-year
statute of limitations bar.
3
Section 619.19 states in relevant part:
The signature of a party, the party‟s legal counsel, or any other
person representing the party, to a motion, pleading, or other paper is a
certificate that:
1. The person has read the motion, pleading or other paper.
2. To the best of the person‟s knowledge, information, and belief, formed
after reasonable inquiry, it is grounded in fact and is warranted by
existing law or a good faith argument for the extension, modification,
or reversal of existing law.
3. It is not interposed for any improper purpose, such as to harass or
cause an unnecessary delay or needless increase in the cost of
litigation.
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C. Safari
Safari was the landlord of the Aspen premises. The district court granted
summary judgment in favor of Safari, concluding
Under the terms of [the] lease, which are unambiguous, Safari did
not occupy or maintain control of the premises and is not a
“possessor” of the land. Therefore, Safari owed no duty to the
Plaintiff and cannot be found liable for damages in this case.
Forrester takes issue with this conclusion, arguing that Safari “maintained
sufficient control over the premises where Forrester‟s injury occurred to impose
liability.”
As Forrester‟s argument implies, the question of whether Safari owed
Forrester a duty turns on whether it controlled the premises.
Van Essen v.
McCormick Enters. Co., 599 N.W.2d 716, 720 (Iowa 1999) (“The crucial question
is whether the [plaintiffs] have shown that [the owner/defendant] retained control
of the [property].”).
There is no question that, in its lease with Aspen, Safari retained the right
to inspect the premises and perform maintenance, replacement, and repairs.
However, other provisions of the lease required Safari to notify Aspen before
entering the premises, limited its maintenance obligations to the exterior and
structural portions of the premises, and explicitly absolved it of responsibility for
other maintenance obligations as follows:
Except as set forth above, Landlord shall not be obligated to
make repairs, replacements, or improvements of any kind to the
premises, or any equipment, facilities, systems, or fixtures therein
contained or for the exclusive use of the Tenant, including
specifically, but not limited to, the HVAC and utility systems serving
the premises, even if such equipment, facilities or equipment
fixtures are located outside of the Premises.
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Aspen was assigned the responsibility of cleaning, maintaining, and
repairing “all other portions of the Premises, including floor and wall coverings,
plumbing, electrical, and HVAC systems and equipment.”
We conclude the
lease, therefore, did not afford Safari the level of control needed to trigger a duty
of care. See Allison by Fox v. Page, 545 N.W.2d 281, 283 (Iowa 1996) (“As a
general rule, a landlord is not liable for injuries caused by the unsafe condition of
the property arising after it is leased, provided there is no agreement to repair.”);
Hoffnagle v. McDonald’s Corp., 522 N.W.2d 808, 815 (Iowa 1994) (concluding
“McDonald‟s retained authority does not establish sufficient control of the
property to render McDonald‟s a „possessor‟ of land”); Stupka v. Scheidel, 244
Iowa 442, 447, 56 N.W.2d 874, 877 (1953) (“As a general rule an owner who has
leased a building to another without any agreement to repair is not liable to the
tenant . . . .”). The district court did not err in granting summary judgment in favor
of Safari.
III.
Disposition
We affirm the district court‟s grant of summary judgment in favor of Aspen,
Hansen, and Safari.
AFFIRMED.
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