Alack v. Vic Tanny International Of Missouri, Inc.

923 S.W.2d 330 (1996)

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Nature of the Case

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Facts

P became a member of D, a health club facility. To become a member P signed a two-page, seventeen-paragraph 'Retail Installment Contract' containing a general exculpatory clause. The clause, however, did not expressly release D from injuries resulting from its own negligence. While using an upright row machine, the machine's handle disengaged from the weight cable and smashed into P's mouth and jaw. P suffered injuries to his mouth and lips, including several loose and broken teeth. P had seen his dentist over 20 times, had undergone two surgeries, and was scheduled for a third surgery. While the surgeries relieved some of P's pain, his temporomandibular joint remained displaced. P sued D. P testified that he will be subject to additional jaw problems, including arthritic changes, and might require additional surgery in the future. P had incurred or was committed to incur, $17,000.00 in medical expenses for these surgical and dental procedures. The handle of the machine was connected without the necessary clevis pin placed between the cable and the pigtail hook. The manufacturer originally designed, manufactured, and shipped the machine with the clevis pin in place. The manufacturer also provided a user manual warning that keeping the equipment correctly assembled was 'critically important to user safety.' The maintenance employees of D acknowledged that the work-out machine could be dangerous if used without the clevis pin. It was also acknowledged that D did not require periodic inspections by any specifically designated employee to make certain that the clevis pin was in place. P was questioned about the Contract including the paragraph purporting to release D from 'any and all claims' against it. At no place in the membership contract does P expressly agree to release D from its own future negligence or fault. Nothing made Paragraph G, or any of the language contained therein, conspicuously stand out. P signed the contract near the bottom of the first page. Paragraph G was on the back side of the contract. P testified that he thought the clause meant that he was releasing D from liability that P might sustain by lifting too much weight or working out for an extended time. P got the verdict for $17,000. Both parties appealed.