Buzz Buff v. Awesome Abs, Inc.

Readdiscussions below,Exculpatory Clauseand the facts ofBuzz Buff v. Awesome Abs, Inc., and formulate a response to various criteria about an exculpatory clause. There is more than one basis for determining whether an exculpatory clause will be enforced.

If you were the judge, who should win - Buzz, the plaintiff, or Awesome Abs, the defendant? Why did you reach this decision? Explain the criteria on which you rely and how you applied them to the facts to reach your opinion. Do not answer with a "naked" opinion. Support your answer with an authoritative source or a pertinent personal experience.

Exculpatory Clause here:

1. An exculpatory clause is one that attempts to release one party from liability in the event of injury to the other party. These clauses have an obvious attraction to many companies, but they carry one major risk: a court may ignore them. However, courts generally hold an exculpatory clause valid if one or more of the following is true.The agreement does not protect against intentional, reckless or grossly negligent conduct
2. The agreement does not involve a business generally thought suitable for public regulation, such as a bus line
3. The party seeking exculpation is not performing a business of great importance to the public or of practical necessity for some members of the public
4. The party does not purport to be performing the service to just anybody who comes along (unlike the bus line)
5. The parties are dealing at arms' length, able to bargain about the contract
6. The person or property of the purchaser is not placed under control of the seller, subject to his or his agent's carelessness
7. The clause is not unconscionable
8. The clause is conspicuous and clear

The facts ofBuzz Buff v. Awesome Abs, Inc., here:

Buzz Buff joined the Awesome Abs (AA) health club and signed a membership contract that incorporated AA's Policies and Procedures, a copy of which AA furnished to Buzz (the Handout). At the top of the last page of the Handout, is a section entitled USE OF PROPERTY. The first paragraph under the USE OF PROPERTY SECTION is entitled "Liability of the Club and the Members."

ANY MEMBER, GUEST, NOMINEE MEMBER OR OTHER PERSON WHO IN ANY MANNER MAKES USE OF OR ACCEPTS THE USE OF ANY APPARATUS, APPLIANCE, FACILITY, PRIVILEGES OR SERVICE WHATSOEVER OWNED AND OPERATED BY THE CLUB, OR WHO ENGAGES IN ANY CONTEST, GAME, FUNCTION, EXERCISE, COMPETITION, OR OTHER ACTIVITY OPERATED OR ORGANIZED, ARRANGED OR SPONSORED BY THE CLUB, EITHER ON OR OFF THE CLUB'S PREMISES, SHALL DO SO AT HIS OR HER OWN RISK, WAIVES ANY LEGAL CLAIMS AGAINST THE CLUB, ITS AGENTS OR EMPLOYEES AND SHALL [HOLD] THE CLUB, ITS OWNERS, EMPLOYEES, REPRESENTATIVES AND AGENTS HARMLESS FROM ANY AND ALL LOSS, COST, CLAIM, INJURY, DAMAGES AND ALL LIABILITY SUSTAINED OR INCURRED BY HIM OR HER RESULTING THEREFROM, AND/OR RESULTING FROM ANY ACT OF ANY OWNER, EMPLOYEE, REPRESENTATIVE OR AGENT OF THE CLUB.

This language was found in the middle of a paragraph on the back page of the Handout. The section title, "USE OF PROPERTY," was in all caps consistent with the rest of the Handout section titles. The paragraph title "Liability of the Club and the Members," as well as the hold harmless (exculpatory) language, was in the same typeface and size as the other information in the five-page Handout. There is no evidence whether the parties discussed the language before Buzz signed the membership contract incorporating the Handout or that AA specifically pointed the language out to Buzz.

Later, Buzz was injured in AA's sauna when the bench he was standing on collapsed and threw him to the floor. Buzz sued AA for his injuries. AA claimed the exculpatory clause relieved them of liability.