Key Points

  • The Supreme Judicial Court held that The Little Gym of West Boylston is a "health club" under G. L. c. 93, § 78, because it offers facilities for and instruction in the development of physical fitness.
  • The court read a separately signed online liability waiver together with the other enrollment paperwork and payments as a single "contract for health club services."
  • The court held that § 80's ban on waivers of claims arising out of "the buyer's activities at the health club" reaches tort claims such as negligence, not only contract claims.
  • The waiver was therefore prohibited by § 80 and void under § 85, and the court vacated summary judgment for the defendant and remanded the negligence case.

Massachusetts' highest court ruled on Tuesday that a children's gymnastics franchise is a "health club" under a 1985 consumer protection law, voiding a liability waiver signed by a father and reviving his young daughter's negligence suit over a broken arm.

The Supreme Judicial Court threw out a Superior Court judgment for BeFree Enterprises, LLC, which does business as The Little Gym of West Boylston. The trial judge had granted summary judgment on the strength of the waiver. Wolohojian wrote for the court.

The decision applies the statute's waiver ban to a child development and gymnastic center that argued it was less like a traditional gym. It also holds that the ban covers injury claims, not only disputes over contract terms. Under G. L. c. 93, § 80, "[n]o contract for health club services may contain any provisions whereby the buyer agrees not to assert against the seller . . . any claim . . . arising out of . . . the buyer's activities at the health club." A companion provision, § 85, makes a noncompliant contract "void and unenforceable as contrary to public policy."

According to the opinion, Ava Cross's paternal grandmother enrolled her in a weekly class at Little Gym in October 2020, when Ava was four. Her father, James Cross, signed an online waiver agreeing "to waive any and all claims of liability, release and hold harmless The Little Gym International, Inc. and its franchisees" if she was hurt. The grandmother paid by credit card the next day, and the family repeated the process, with an identically worded waiver, in August 2021.

On Oct. 10, 2021, Ava, then five, tried to sit on top of a "red bar" at the beam station, fell and broke her arm. A coach was present. Her mother, Denise M. Hanson, sued in May 2022 as her next friend, alleging that Little Gym breached its duty to supervise the children in its care and left Ava unattended.

Little Gym raised the waiver as an affirmative defense. Superior Court Judge J. Gavin Reardon, Jr., granted summary judgment after a hearing, concluding that the waiver was not a "contract for health club services" as the statute defines that phrase. Ava appealed, and the Supreme Judicial Court transferred the case from the Appeals Court on its own initiative.

Little Gym argued that the waiver, a separate document signed online, was the relevant contract and did not qualify standing alone. The court agreed that the waiver by itself lacked the essential terms of a services contract because it did not identify the services Little Gym would provide. But Wolohojian wrote that "although the liability waiver was a separate document, it was part and parcel of a single transaction whereby Ava's father and grandmother together completed various enrollment paperwork to enroll Ava in Little Gym's classes."

The court held that writings forming one transaction are read together, even when they are signed at different times. Read that way, the enrollment papers showed that the contract's primary purpose was to let Ava use Little Gym's facilities and receive instruction in the "encouragement or development of physical fitness," the court held.

The franchisee also argued that its scheduled classes, close supervision and focus on children made it less like a traditional gym than an "early education enrichment program." The court rejected the comparison. "Although Little Gym may indeed have features that traditional exercise gyms do not, that is not the question," Wolohojian wrote. The record showed a room of padding and gymnastics equipment staffed by coaches, and the court said it had "no hesitation" in finding that Little Gym met the statutory definition.

The justices pointed to the statute's list of examples, which runs from tennis clubs to weight control centers and martial arts schools. Like Little Gym, the opinion said, martial arts and self-defense schools "offer classes with instructors, and often to children." Wolohojian concluded that "Little Gym falls within the plain meaning of the general definition of 'health club' given in the first sentence of § 78."

Little Gym also asked the court to look past the text. It argued that because the 1985 law mainly regulates contract terms, the Legislature meant to bar waivers only of contract-based claims, not tort claims such as negligence. The court held that the text defeats that reading, because § 80 reaches claims arising out of the contract and also out of the "buyer's activities at the health club."

The court likewise rejected Little Gym's argument that applying the ban to tort claims would produce an absurd result because, as the court said in a 2002 decision, "Massachusetts law favors the enforcement of releases." Wolohojian wrote that "there is no necessary inconsistency between a general policy favoring releases and a legislative decision to ban releases in a particular, specialized context." The court added that it is not for judges to weigh "the expediency or the wisdom of the legislative judgment."

In a footnote, the court said the Massachusetts Legislature "is not alone in barring liability waivers in analogous contexts," citing statutes in Hawaii, Maryland and New York.

Ronald G. Gentle represented Ava, and Amy B. Yarbro represented BeFree Enterprises. Jennifer A. Creedon and Katherine R. Kossoy submitted an amicus brief for the Massachusetts Defense Lawyers Association, which the court acknowledged.

"Little Gym's motion for summary judgment should have been denied," the court concluded. It vacated the judgment and remanded the case for further proceedings.