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Martin v. Tan & Tone America6/5/1998
Mandate Issued: October 15, 1998
RELEASE FOR PUBLICATION BY ORDER OF THE COURT OF CIVIL APPEALS
LEAH J. MARTIN, Plaintiff / Appellant, v. A.C.G., Inc., d/b/a TAN & TONE AMERICA, Defendant/Appellee.
APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA HONORABLE JAMES B. BLEVINS, JUDGE
AFFIRMED
Appellant, Leah J. Martin, sued Appellee, A.C.G. d/b/a Tan & Tone America, for damages resulting from an injury to her hand while she was using an exercise machine at a health club operated by A.C.G. This is the second appeal in this case. In the first appeal [case number 88,734], the judgment was reversed and the case remanded because the trial court had improperly granted summary judgment. After the first appeal, Martin sought a writ of prohibition against the trial court. See case number 90,760 wherein the application to assume original jurisdiction was denied. In this appeal, case number 90,787, Martin seeks reversal of the order of the trial court sustaining A.C.G.'s motion for summary judgment.
A.C.G.'s motion contained evidentiary materials which showed Martin had signed a contract approximately eight days prior to the accident which contained an exculpatory clause releasing A.C.G. from any and all liability resulting from her use of the facility and assuming all risks in connection therewith, including known and unknown risks. The court found Schmidt v. U.S., 1996 OK 29, 912 P.2d 871, to be controlling and entered judgment for A.C.G.
Martin appeals and contends: issues of material fact were in dispute regarding the validity and enforceability of the exculpatory clause which precluded summary judgment. Specifically, Martin contends that while she did sign the contract containing the exculpatory clause, there was disparity in their bargaining positions, an injury to public health and morals, a violation of public policy and willful misconduct or gross negligence. She contends Appellee was guilty of wilful or wanton gross negligence because one of Appellee's employees had been injured on the machine prior to Martin's injury and Appellee did not take steps to prevent future injuries. Martin contends summary judgment was improper because there was a disputed material fact as to whether Appellee had notified her of the presence and effect of the exculpatory clause.
In Schmidt v. U.S., supra, the Court answered a certified question for the federal court: "Whether, under Oklahoma law, a contractual exculpatory clause for personal injury is valid and enforceable?" The Oklahoma Supreme Court answered in the affirmative. However, in answering the question the Court stated:
"By entering into an exculpatory agreement of the type dealt with here the promisor assumes the risks that are waived. While these exculpatory promise-based obligations are generally enforceable, they are distasteful to the law. For a validity test the exculpatory clause must pass a gauntlet of judicially-crafted hurdles: (1) their language must evidence a clear and unambiguous intent to exonerate the would-be defendant from liability for the sought-to-be-recovered damages; (2) at the time the contract (containing the clause) was executed there must have been no vast difference in bargaining power between the parties; and (3) enforcement of these clauses must never (a) be injurious to public health, public morals or confidence in administration of the law or (b) so undermine the security of individual rights vis-a-vis personal safety or private property as to violate public policy." The clause will never avail to relieve a party from liability for intentional, willful or fraudulent acts or gross, wanton negligence. (F
Page 1 2 Oklahoma Personal Injury Attorneys
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