Eric Wind Attorney at NH Public Utilities Commission in Concord.

Supreme Court At-a-Glance Contributor Eric Wind, Attorney at the NH Public Utilities Commission in Concord, N.H.

No. 2019-0354

October 30, 2020



  • Whether the trial court correctly found that plaintiff’s negligence claim was barred by a release of liability provision in her membership agreement.


The plaintiff brought a negligence claim after injuring her arm on an uncovered and unprotected bolt after tripping and falling on an irregular and uneven walkway at defendant’s gym. The trial court granted defendant’s motion for summary judgment, ruling that plaintiff’s claim was barred by a liability release in her membership agreement.

Plaintiff raised two primary arguments: 1) that the liability release was unenforceable because a special relationship exists between her and the defendant, resulting in the waiver violating public policy; and 2) even if the release does not violate public policy, it is still unenforceable because a reasonable person would not have understood it to apply to the injury she suffered.

The Court found that a special relationship did not exist between the parties because the defendant is not a common carrier, innkeeper, public utility, or an entity that provides a service of great importance or practical necessity to the public. The court specifically declined to hold that the recreational use of a private gym is of such great importance or necessity that it creates a special relationship, such that the liability release would be prohibited as against public policy.

Next, the Court rejected the plaintiff’s alternate theories that the release violates public policy on public safety grounds. Plaintiff argued that because she was not exercising at the time of the accident, that her injury was not related to her use of the gym facilities; and that because her injury was not a direct result of her use of the facilities, this case implicates a broad issue of whether a business may absolve itself of maintaining reasonably safe conditions. The Court found that the plaintiff’s use of the gym at the time of her injury was related to her use of the gym’s facilities to exercise, and that the plaintiff’s remaining policy arguments were unconvincing or inapposite.

The Court went on to find that the language of the liability release is broad and not obstructed by qualifications. Therefore, the Court concluded that a reasonable person would have contemplated that the release applied to any negligence, not just negligence inherent in the active use of exercise equipment.


Follender Law Offices, P.L.L.C., of Nashua (Richard C. Follender on the brief and orally), for the plaintiff. Wadleigh, Starr & Peters, P.L.L.C., of Manchester (Michael R. Mortimer and Michael G. Eaton on the brief, and Mr. Eaton orally), for the defendant.