COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73144 JOHN LAMB : JOURNAL ENTRY : AND Plaintiff-appellant : OPINION : -vs- : : UNIVERSITY HOSPITALS HEALTH : CARE ENTERPRISES, INC., ET AL.: : Defendants-appellees: DATE OF ANNOUNCEMENT OF DECISION: AUGUST 13, 1998 CHARACTER OF PROCEEDING: Civil appeal from the Court of Common Pleas Case No. CV-321945 JUDGMENT: AFFIRMED DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: STEVEN M. WEISS, ESQ. Law Offices of Steven Weiss 1250 Illuminating Building 55 Public Square Cleveland, Ohio 44113 For Defendant-Appellee: RICHARD C. MCDONALD, ESQ. DAVIS & YOUNG 1700 Midland Building Cleveland, Ohio 44115 DYKE, P.J.: Plaintiff John Lamb appeals from the judgment of the trial court which entered summary judgment for defendant University -2- Hospitals Health Care Enterprises, Inc. and Harrison Stafford in plaintiff's action for injuries sustained at One To One Fitness Center. For the reasons set forth below, we affirm. On January 6, 1997, plaintiff filed this action against University Hospitals Health Care Enterprises, Inc., owner and operator of One To One Fitness Center, and Harrison Stafford, One To One's general manager. In relevant part, plaintiff asserted that defendant Stafford negligently, recklessly and wrongfully modified an exercise machine at the fitness center, in contra- vention of the warnings and instructions provided by the manu- facturer, and negligently, recklessly and wrongfully failed to warn plaintiff of the modification and its attendant risks. Plaintiff further alleged that he sustained permanent injury to his left shoulder as the result of using the modified equipment. Defendants denied liability and affirmatively averred that plaintiff had expressly assumed the risk of his injury and had waived all claims against defendants. Defendants also asserted that plaintiff's claims were barred by primary assumption of the risk and implied assumption of the risk. On June 30, 1997, defendants moved for summary judgment, arguing that they were entitled to judgment as a matter of law pursuant to a waiver and release of liability contained in plaintiff's membership agreement with the fitness center. This provision states: It is agreed and understood that all use of the Center facilities and any transportation provided by the Center shall be undertaken by Member or guest at his or her sole risk and the Center shall not be liable for any damages, -3- harm, or injuries, of any kind, nature or description to Member or any guest of Member or be subject to any action, claim, demand or suit whatsoever for injury or damages, including, without limitation, those resulting from acts of active or passive negligence on the part of the Center, its officers or agent. Member, for himself or herself and on behalf of his or her executors, adminis- trators, heirs, assigns and successors releases the Center and its employees and agents from all such actions, claims, demands, or suits. Member, by ini- tialing the line at the end of this sentence, expressly acknowledges that he or she has read and understood this sentence. In opposition, plaintiff noted that the membership agreement entitled him to use the equipment, facilities and services of the fitness center. He further claimed that the waiver only barred claims arising from use of the facilities, not its equipment. Plaintiff also obtained a letter from the manufacturer of the equipment upon which he was injured, Hammer Strength Corp., to defendant Stafford which stated in relevant part as follows: Note that any alteration of the design negates the product liability of our machines. We make pads that will accomplish the same goal without the danger involved to the user that might result from the previously mentioned alterations. On August 14, 1997, the trial court granted defendants' motion for summary judgment. Plaintiff now appeals and assigns a single error for our review. Plaintiff's assignment of error states: THE LOWER COURT ERRED IN GRANTING APPELLEES' MOTION FOR SUMMARY JUDGMENT. Within this assignment of error, plaintiff notes that the waiver and release clause must be clear and unambiguous and is to be narrowly construed. As so construed, plaintiff asserts that the -4- instant waiver must be limited to claims involving facilities, and not equipment. Plaintiff further complains that the waiver failed to identify the precise activity which resulted in injury in this instance and that it is unconscionable. Finally, plaintiff asserts that the waiver does not bar his claims since defendants acted recklessly in modifying the weight lifting machine and in failing to notify of that modification and its risks. With regard to procedure, we note that summary judgment is proper if: (1) no genuine issue of material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from such evidence that reasonable minds can come to but one conclusion and, reviewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to the party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. See, also, State ex rel. Zimmerman v. Thompkins (1996), 75 Ohio St.3d 447,448. If the moving party meets this burden, the non-moving party must then produce evidence pursuant to Civ.R. 56 setting forth specific facts which show that there is a genuine triable issue. Id.; Wing v. Anchor Media, Ltd. Of Texas (1991), 59 Ohio St.3d 108; Holmes v. Health & Tennis Club of America (1995), 103 Ohio App.3d 364, 367. Further, the construction of agreements which are unambiguous on their face is a matter of law. Tanker v. North Crest Equestrian Center (1993), 86 Ohio App.3d 522, 525. Conversely, ambiguity in the terms of a contract creates a jury question regarding the intent of the parties. Id. -5- With regard to the substantive law, we note that a participant in a recreational activity is free to contract with the proprietor of such activity as to relieve the proprietor of responsibility for damages or injuries to the participant caused by the negligence of the proprietor except when caused by wanton or wilful misconduct. Cain v. Cleveland Parachute Training Center (1983), 9 Ohio App.3d 27, 28. Such contracts constitute express assumption of the risk. Gallagher v. Cleveland Browns (1996), 74 Ohio St.3d 427, 431. For express assumption of the risk to operate as a bar to recovery, the party waiving his right to recover must make a conscious choice to accept the consequences of the other party's negligence. Holmes v. Health & Tennis Club of America, supra, at 367. Consequently, the waiver must be expressed in terms that are clear and unequivocal. Tanker v. North Coast Equestrian Center, supra. If it is not so expressed, the intention of the parties is a factual inquiry, and is properly ascertained by a jury. Id., at 526; T anker v. North Crest Equestrian Center, supra, at 526. Moreover, such agreements do not bar recovery for wanton or wilful misconduct. Sanfillipo v. Rarden (1985), 24 Ohio App.3d 164, 168; Cain v. Cleveland Parachute Center, supra. Wilful conduct implies an act done intentionally, designedly, knowingly, or purposely, without justifiable excuse. State v. Earlenbaugh (1985), 18 Ohio St.3d 19, 21. Wanton conduct is the failure to exercise any care whatsoever toward those to whom a duty of care is owed, under circumstances where there is a great probability that harm will -6- result. Guysinger v. K.C therefore, eleases the Tanker v. North Crest Equestrian Center, supra, at 525; Holmes v. Health & Tennis Corp. Of America, supra, at 367; Swartzentruber v. Wee-K Corp. (1998), 117 Ohio App.3d 420, 425. In this instance, the waiver is extremely similar1 to language. Raceway, In considered in Jacob v. Grant Life Choices Fitness Center (June 4, 1996), Franklin App. No. 95APE12-1633, unreported. In that case, the court held that the waiver clearly released the defendants from liability for Jacob's negligence claims.2 The court stated: e Jacobs v. Grant Life Choices Fitness Center, supra, provided:1Th waiver in It is expressly agreed that all use of the Center facili- ties and any transportation provided by the Center shall be undertaken by a Member or guest at his/her sole risk, and the Center shall not be liable for any injuries or any damage to any Member or guest, or the property of any Member or guest, or be subject to any claim, demand, injury or damages whatsoever, including without any limitation, those damages resulting from acts of active or passive negligence on the part of the Center, its officers or agents. The Member, for himself/herself and on behalf of his/her executors, administrators, heirs, assigns and successors, does hereby expressly forever release and discharge the Center, its owners, officers, employees, agents, assigns and successors from all such claims, demands, injuries, damages, actions or causes of action. *** 2 The Supreme Court denied the plaintiff's motion for a discretionary appeal. See Jacobs v. Grant Life Choices Fitness Center (1996), 77 Ohio St.3d 1482. -7- Unlike the above cases, the contract here clearly releases each appellee from liability for appellant's negligence claims. The clause includes the words release and negligence. Thus, it clearly specifies the kind of liability released. Additionally, the release clearly specifies those persons released from liability by stating that `the Center, its owners, officers, employees, agents, assigns and successors' are `expressly forever released and discharged.' Appellant cannot now assert that he was unaware that he would be precluded from suing appellees for any alleged negligence on their part. Likewise, in this instance, the waiver states that it is a release of liability for negligence on the part of the Center , its officers or agents. It is clear and unambiguous. Plaintiff maintains that Jacob v. Grant Life Choices Fitness Center, supra, is distinguishable from this matter since this release mentioned facilities, not equipment, and he was injured while using equipment. We note, however, that plaintiff expressly assumed the risk for all use of the Center facilities; the listing of each possible activity was not necessary. See Griggy v. Edwards Motors, Inc. (March 11, 1992), Licking County App. No. CA- 3684, unreported. Plaintiff also complains that enforcement of the waiver leads to unconscionable results as the preclusion of all negligence claims would bar even claims not typically associated with the use of a fitness center. We reject this assertion since it is well- settled that in order to be barred, the risk of injury must result in participation in the event or activity for which the release was signed. See Seymour v. New Bremen Speedway, Inc. (1971), 31 Ohio App.2d 141, 143-144; King v. United Skates of America, Inc. (November 10, 1994), Lake App. No. 93-L-199, unreported; Zivich v. -8- Mentor Soccer Club, Inc. (April 18, 1997), Lake App. No. 95-L-184, unreported. Plaintiff additionally complains that the clause is uncon- scionable since he was not able to bargain for it. This claim was rejected in Thompson v. Otterbein College (February 6, 1996), Franklin App. No. 95 APE08-1009, unreported; and in Jacob v. Grant Life Choices Fitness Center, supra. Finally, plaintiff asserts that summary judgment was erro- neously granted because defendants acted wantonly or wilfully in modifying the equipment. The only evidence presented as to this issue came from the deposition of Harrison Stafford, general manager of the fitness center. Stafford testified that he modified the equipment in order to prevent injury to the majority of the center's members and that he tested the modification on two tall and large members in order to make sure that the change would not handicap the large framed person. (Depo. at 40-44). Thus, reasonable minds could only conclude that his conduct was neither wanton nor wilful as he did not act with reckless indifference to the consequences of anyone's health and did not act with the intent, knowledge or purpose to injure. Cf. Otterbacher v. Brandywine Ski Center, Inc. (May 23, 1990), Summit App. No. 14269, unreported (plaintiff demonstrated a genuine issue of material fact as to whether defendant's actions amounted to wanton or wilful misconduct where he presented evidence that defendant failed to follow industry rental guidelines in renting him ski equipment, rented him outdated equipment, and improperly adjusted it). -9- In accordance with the foregoing, plaintiff's assignment of error is without merit. The judgment of the trial court is affirmed. -10- It is ordered that appellees recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATTON, J., AND SPELLACY, J., CONCUR. ANN DYKE PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App. R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App. R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .