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Mackenson v. Anthony

Superior Court of Delaware, Sussex

June 19, 2017

Jean Francois Mackenson
v.
Michael Anthony and KB Gyms, Inc.

          Submitted: May 4, 2017

         Upon Defendant's Motion for Judgment on the Pleadings, Granted.

          Tasha M. Stevens, Esq. Fuqua, Willard, Stevens & Schab, P.A.

          Jennifer D. Donnelly, Esq. Marshall, Dennehey, Warner, Coleman & Goggin

         Dear Parties:

         Before the Court is Defendants', Michael Anthony and RB Gyms Inc. ("Defendants"), Motion for Judgment on the Pleadings. For the reasons expressed below, the Motion is GRANTED.

         I. BACKGROUND

         On December 1, 2016, Plaintiff, Jean Francois Mackenson ("Plaintiff), filed his Complaint alleging that, as a result of Defendants' negligence, he was injured while using the bar of a machine to do pull-ups at Club Fitness located in Rehoboth Beach, Delaware. Specifically, the rubber grip on the pull-up bar detached, causing Plaintiff to lose his grip on the bar and his resultant injury.

         Plaintiff signed a Membership Agreement with Club Fitness on January 3, 2012. It should be noted that Plaintiff signed his name on the line provided for "Legal Guardian/Guarantor Signature" rather than the line provided for "Member Signature."[1] Plaintiff was a member of the gym when the incident occurred. The Membership Agreement includes a liability waiver clause, which reads in pertinent part as follows:

Waiver. 24/7 Club Fitness and any of its affiliates are not responsible for any injury (or loss of property) suffered while participating in club activities, using equipment, improper supervision or instruction, or on club premises, for any reason whatsoever, including ordinary negligence on the part of CF, its agents, or employees. I understand that these and other physical activities at CF involve certain risks, including but not limited to, death, serious neck and spinal injuries resulting in complete or partial paralysis, heart attacks, and injury to bones, joints or muscles. I am voluntarily participating in club activities with knowledge of dangers involved and hearby release and covenant not to sue CF, its affiliates, its owners, employees, instructors, or agents, from any and all present or future claims resulting from ordinary negligence on the part of CF or others listed. I further agree to indemnify and hold harmless CF and others listed for any and all claims arising as a result of my engaging in club activities or any activities incidental thereto.[2]

         On January 20, 2017, Defendants filed a Motion for Judgment on the Pleadings under Superior Court Civil Rule 12(c)[3] based upon the waiver contained in the Membership Agreement. Defendants argue that Plaintiffs signing of the waiver constituted a primary assumption of risk, which, in Defendants' words, "applies when a plaintiff relieved a defendant of an obligation of conduct toward him and takes his chances of injury from a known risk arising from what the defendant is to do or leave undone."[4]

         On February 6, 2017, Plaintiff filed his Answer to Defendants' Motion for Judgment on the Pleadings. Plaintiff argues that his failure to sign the Membership Agreement on the correct line defeats the contract. He further asserts that this is a factual determination inappropriate for consideration on a Motion for Judgment on the Pleadings.

         II. STANDARD OF REVIEW

         The standard of review for a judgment on the pleadings is summarized in Catawba ...


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