Shive v. 24 Hour Fitness

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
November 6, 2025

2025COA87

No. 24CA2075, Shive v. 24 Hour Fitness — Contracts —
Colorado Premises Liability Act — Exculpatory Clauses — Clear
and Unambiguous Intent to Extinguish Liability

A division of the court of appeals concludes that the references

to “facilities” in the exculpatory clause of a health club membership

agreement do not express the parties’ intention to extinguish the

club’s liability for claims arising from a member’s slip and fall on an

icy, publicly accessible sidewalk near the entrance to one of the

club’s buildings. For this reason, the division reverses the district

court’s grant of summary judgment to the club on the injured club

member’s Premises Liability Act claim.
COLORADO COURT OF APPEALS 2025COA87

Court of Appeals No. 24CA2075
City and County of Denver District Court No. 23CV33224
Honorable J. Eric Elliff, Judge

Matthew Shive,

Plaintiff-Appellant,

v.

24 Hour Fitness USA, LLC,

Defendant-Appellee.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division III
Opinion by JUDGE LIPINSKY
Román, C.J., and Kuhn, J., concur

Announced November 6, 2025

Robinson & Henry, P.C., Matthew W. Hamblin, Jon M. Topolewski, Denver,
Colorado, for Plaintiff-Appellant

Dietze and Davis, P.C., William A. Rogers, III, Nathan A. Klotz, Christina M.
Gonsalves, Lauren N. Davis, Boulder, Colorado, for Defendant-Appellee

Dormer Harpring, Timothy M. Garvey, Denver, Colorado; Sliger Law Firm,
Amber Sliger, Colorado Springs, Colorado, for Amicus Curiae Colorado Trial
Lawyers Association
¶1 Through exculpatory agreements, parties may seek to insulate

themselves from liability arising from their negligent acts. See

Miller v. Crested Butte, LLC, 2024 CO 30, ¶ 45, 549 P.3d 228, 237.

Exculpatory agreements implicate “two competing principles:

freedom of contract and responsibility for damages caused by one’s

own negligent acts.” Heil Valley Ranch, Inc. v. Simkin, 784 P.2d

781, 784 (Colo. 1989).

¶2 Although “exculpatory agreements have long been disfavored,”

B & B Livery, Inc. v. Riehl, 960 P.2d 134, 136 (Colo. 1998), and

courts closely scrutinize them, Miller, ¶ 45, 549 P.3d at 237, they

are generally enforceable if they clearly and unambiguously reflect

the parties’ intent to “extinguish liability,” Heil Valley Ranch, 784

P.2d at 785. Courts recognize that competent parties, including

companies that provide services to consumers, have a contractual

right to limit their liability and to allocate business risks in

accordance with their business judgment. See Taylor v. Brooklyn

Boulders, LLC, 2025 IL App (1st) 231912, ¶ 20, 265 N.E.3d 407,

415; see also Core-Mark Midcontinent, Inc. v. Sonitrol Corp., 2012

COA 120, ¶ 13, 300 P.3d 963, 968 (“A limitation of liability

provision is generally enforceable because it represents the parties’

1
bargained-for agreement regarding allocation of risks and costs in

the event of a breach or other failure of the contemplated

transaction.”).

¶3 This appeal examines the limits of when an exculpatory

agreement “clearly and unambiguously” expresses “the intent of the

parties . . . to extinguish liability” in the context of an athletic club

membership agreement. Heil Valley Ranch, 784 P.2d at 785. We

specifically consider whether references to “facilities” in such a

clause bar a club member’s claim under the Premises Liability Act

(PLA), § 13-21-115, C.R.S. 2025, for damages resulting from the

member’s slip and fall on an icy sidewalk near the athletic club’s

entrance.

¶4 Plaintiff, Matthew Shive, appeals the district court’s grant of

summary judgment in favor of defendant, 24 Hour Fitness USA,

LLC, on Shive’s PLA claim. We reverse.

I. Background

A. Facts

¶5 Shive obtained the right to use 24 Hour’s athletic clubs by

signing a preprinted membership agreement containing an

exculpatory clause. The clause says the following:

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Using [24 Hour’s] facilities involves the risk of
injury to you or your guest, whether you or
someone else causes it. Specific risks vary
from one activity to another and the risks
range from minor injuries to major injuries,
such as catastrophic injuries including death.
In consideration of your use of 24 Hour’s
facilities and/or participation in the
activities offered by 24 Hour, you
understand and voluntarily accept this risk
and agree that 24 Hour, its officers,
directors, employees, volunteers, agents
and independent contractors will not be
liable for any injury, or any other damages,
to you, your spouse, guests, unborn child,
or relatives resulting from the actions or
inactions, including negligence, of 24 Hour
or anyone on 24 Hour’s behalf or anyone
using the facilities, including, without
limitation, personal, bodily, or mental
injury, or economic loss, whether said use
or said injury is related to exercise or not.
This Release of Liability includes, without
limitation, claims against 24 Hour for
negligence, premises liability, and products
liability. Further, you understand and
acknowledge that 24 Hour does not
manufacture fitness or other equipment at its
facilities, but purchases and/or leases
equipment. You understand and acknowledge
that 24 Hour is providing recreational services
and may not be held liable for defective
products.

¶6 Shive walked out of the club building after working out on a

winter day. Snow and ice had built up on the sidewalk in front of

the building. Shive slipped and fell on ice that had accumulated

3
beneath an awning that extended over the sidewalk near the

building’s front entrance. The fall resulted in a significant injury to

Shive’s knee.

B. Procedural History

¶7 Shive filed a PLA suit against 24 Hour premised on his

allegation that 24 Hour “unreasonably failed to exercise reasonable

care to protect against dangers and/or dangerous activities, of

which [it] actually knew or should have known by failing to remove,

remediate, mitigate and/or properly maintain the dangerous

area/condition.” Shive asserted that 24 Hour had unreasonably

failed to exercise reasonable care by not removing the accumulated

ice near the building’s entrance.

¶8 24 Hour filed a summary judgment motion in which it argued

that the exculpatory clause in Shive’s membership agreement

barred his PLA claim. Shive responded that the exculpatory clause

“cannot be reasonably interpreted to encompass the risk that

[Shive] succumbed to and the location of [his] injury — a fall on ice

outside of the building on an exterior sidewalk as he was leaving

the [club].” He asserted that, “[w]hen read as a whole, [24 Hour]’s

chosen language for its exculpatory provision would suggest a

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member would be waiving claims based on the inherent risks posed

by the use of a gym or fitness club and the activities one may

participate in at such a facility.” For this reason, Shive said, “the

potential member reviewing this language would at least conclude

that this provision was limited to the use of or activities within the

building of the facility.”

¶9 The court granted summary judgment to 24 Hour after

considering the supreme court’s four-factor test for assessing the

validity of exculpatory agreements. See Jones v. Dressel, 623 P.2d

370, 376 (Colo. 1981). Because Shive did not contest the first three

Jones factors, the court focused on the fourth Jones factor —

“whether the intention of the parties” to “insulate a party from

liability from his own negligence” was expressed in “clear and

unambiguous language.” Id.

¶ 10 The court concluded that the exculpatory clause in Shive’s

membership agreement was “clear, broad[,] and mostly free of

legalese,” and it found that, through the clause, Shive released 24

Hour from “liability for all injuries, regardless of whether the injury

was related to exercise.” The court said that, because “entry and

exit of the club is a necessary adjutant [sic] to its use,” Shive was

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injured while “participating in the activities described in the

contract.” The court noted that the exculpatory clause “specifically

includes a waiver of [PLA] claims,” including claims arising from

“non-exercise related activity,” and, therefore, the clause

“necessarily encompasses injuries incurred in entering or leaving

the club.” Accordingly, the court concluded that Shive had

“released and waived” his PLA claim, and it dismissed the claim

with prejudice.

¶ 11 On appeal, Shive contends that the court erred by

(1) determining that the exculpatory clause was valid under the

fourth Jones factor; (2) failing to consider the evidence in the light

most favorable to him; and (3) concluding that the exculpatory

clause was valid as a matter of public policy.

II. Analysis

A. The Exculpatory Clause Does Not Bar Shive’s PLA Claim

¶ 12 Shive contends that the court erred in its analysis of the

fourth Jones factor. We agree.

1. Standard of Review

¶ 13 “We review de novo an order granting a motion for summary

judgment.” Gagne v. Gagne, 2014 COA 127, ¶ 24, 338 P.3d 1152,

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1159. Likewise, “[t]he interpretation of a contract is a question of

law” that we review de novo. Fed. Deposit Ins. Corp. v. Fisher, 2013

CO 5, ¶ 9, 292 P.3d 934, 937 (citing Ad Two, Inc. v. City & County of

Denver, 9 P.3d 373, 376 (Colo. 2000)). For this reason, “[t]he

determination of the sufficiency and validity of an exculpatory

agreement is a question of law for the court to determine.” Jones,

623 P.2d at 376.

2. The Case Law Governing the Enforceability of
Exculpatory Clauses

¶ 14 In Jones, the supreme court identified four factors that courts

must consider when determining the validity of an exculpatory

clause: “(1) the existence of a duty to the public; (2) the nature of

the service performed; (3) whether the contract was fairly entered

into; and (4) whether the intention of the parties is expressed in

clear and unambiguous language.” Id. As noted above, this appeal

focuses on the fourth Jones factor.

¶ 15 In determining whether an exculpatory clause is valid under

the fourth Jones factor, “[t]he question is not whether a detailed

textual analysis would lead a court to determine that the language,

even if ambiguous, would ultimately bar the plaintiff’s claims.” Doe

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v. Wellbridge Club Mgmt. LLC, 2022 COA 137, ¶ 16, 525 P.3d 682,

686. Instead, a court must examine “the actual language of the

agreement for legal jargon, length[,]. . . complication, and any

likelihood of confusion or failure of a party to recognize the full

extent of the release provisions.” Chadwick v. Colt Ross Outfitters,

Inc., 100 P.3d 465, 467 (Colo. 2004).

¶ 16 The parties primarily rest their arguments regarding the

validity of the exculpatory clause on three recent cases. Shive cites

Doe and Stone v. Life Time Fitness, Inc., 2016 COA 189M, 411 P.3d

225, to support his contention that the court erred by granting

summary judgment to 24 Hour. In contrast, 24 Hour cites Miller —

the supreme court’s most recent pronouncement on the

enforceability of releases of liability in negligence claims — to argue

that the exculpatory clause bars Shive’s PLA claim. We next turn to

these cases.

¶ 17 In Miller, the supreme court considered whether a father’s

execution of a release of liability barred the negligence per se and

common law negligence claims he brought against a ski resort on

behalf of his injured minor daughter. Miller, ¶¶ 1-3, 549 P.3d at

230-31. Because, unlike Shive’s PLA claim, the father’s negligence

8
per se claim rested on the ski resort’s alleged violation of its

statutory and regulatory duties, id. at ¶ 2, 549 P.3d at 230-31, we

focus on the Miller court’s analysis of the release’s effect on the

father’s common law negligence claim.

¶ 18 The father signed the release of liability on behalf of his

daughter when he purchased ski passes for both of them. Id. at ¶

7, 549 P.3d at 231. The release said that individuals participating

in the defined activities assumed, among other risks, “the risk of

‘using the lifts’ and of ‘misloading, entanglements, or falls from ski

lifts and the negligence of ski area employees.’” Id. at ¶ 53, 549

P.3d at 238.

¶ 19 The plaintiff’s daughter was unable to get seated on a chair

lift. Id. at ¶ 9, 549 P.3d at 232. The lift ascended while the girl was

hanging from the chair. Id. The father alleged that no lift attendant

or operator present could slow or stop the lift. Id. The girl fell

approximately thirty feet from the lift and was seriously injured. Id.

The fall left her a quadriplegic. Id. at ¶ 10, 549 P.3d at 232.

¶ 20 Her father argued on appeal that the release was “not specific

enough to capture the precise scenario at issue,” id. at ¶ 48, 549

P.3d at 237, because “no experienced skier would have anticipated

9
that the releases were intended to cover the specific facts in this

case,” id. at ¶ 51, 549 P.3d at 238.

¶ 21 The supreme court disagreed with the father’s contention that

the release was not specific enough to bar his common law

negligence claim. Id. at ¶¶ 51-52, 549 P.3d at 238. It concluded

that the release language specifying that the pass holder assumes

the risk of “‘using the lifts’ and of ‘misloading, entanglements, or

falls from ski lifts and the negligence of ski area employees’”

sufficiently informed the father of “the types of risks that led to [his

daughter]’s injuries.” Id. at ¶¶ 48, 53, 549 P.3d at 237-38.

Because the release language “expressed the parties’ intentions in

clear and unambiguous language,” it “satisfied the fourth Jones

factor” and was enforceable. Id. at ¶ 53, 549 P.3d at 238.

¶ 22 In Stone, the division held that a release in an athletic club

membership agreement did not bar the PLA claim of a member who

tripped on a hair dryer cord in the club’s locker room after washing

her hands. Stone, ¶ 1, 411 P.3d at 227. In its analysis of the

fourth Jones factor, the division noted that the first sentence of the

release said, “I understand that there is an inherent risk of injury

. . . in the use of or presence at [the defendant’s athletic center], the

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use of equipment and services at [the defendant’s athletic center],

and participation in [the defendant’s] programs.” Id. at ¶ 27, 411

P.3d at 230. The next sentence provided that such inherent risk

included, but was not limited to, “‘[i]njuries arising from the use of

[the defendant’s] centers or equipment’ and from activities and

programs sponsored by [the defendant].” Id.

¶ 23 The division said that the “focus on the use of exercise

equipment and facilities and physical injuries resulting from

strenuous exercise” in the release would lead a person to

“reasonably conclude that by signing the [a]greement he or she was

waiving claims based only on the inherent risks of injury related to

fitness activities.” Id. at ¶ 30, 411 P.3d at 231. Accordingly, the

division concluded that the release did not “clearly, unambiguously,

and unequivocally bar [the plaintiff]’s PLA claim based on the

injuries she allege[d] she sustained after she washed her hands in

the women’s locker room.” Id. at ¶ 35, 411 P.3d at 232.

¶ 24 The division in Doe also determined that an exculpatory clause

in an athletic club’s membership agreement did not bar the

plaintiffs’ claims. In that case, the division held that the clause did

not bar a mother and daughter’s claims arising from an athletic

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club employee’s sexual abuse of the daughter when she was a

minor. Doe, ¶ 1, 525 P.3d at 684. As in Stone, the exculpatory

clause at issue began by “acknowledging that ‘athletic activities and

the use of the [defendant’s athletic club] may result in personal

injuries, including serious bodily injury or death.’” Id. at ¶ 17, 525

P.3d at 686.

¶ 25 The division reasoned that the exculpatory clause did not bar

the plaintiffs’ claims because it did not “express the parties’

intention to waive [sexual abuse] claims in clear, unambiguous, and

unequivocal language.” Id. at ¶ 15, 525 P.3d at 686. Rather, the

provision had a “dominant focus” on “the risks of athletic activities

associated with the use of the [defendant athletic club]’s facilities.”

Id. at ¶ 18, 525 P.3d at 686 (quoting Stone, ¶ 27, 411 P.3d at 230).

Accordingly, the Doe division concluded that the exculpatory clause

“created a substantial likelihood that a reader would fail to

recognize the full extent of the release provision” — specifically, that

it “could apply to the risk of [the defendant’s] employee’s sexual

abuse of a [c]lub member due, in part, to the [defendant]’s alleged

negligence or failure to exercise reasonable care.” Id. at ¶ 28, 525

P.3d at 688.

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¶ 26 24 Hour asserts that Miller superseded Stone and Doe. We

disagree.

¶ 27 Not only did Miller not cite Stone or Doe, but nothing in the

Miller court’s analysis conflicted with the holdings in Stone or Doe.

Rather, in determining whether the subject release was enforceable,

the supreme court examined “whether the intent of the parties was

to extinguish liability” as it related to the father’s claims and

“whether this intent was clearly and unambiguously expressed.”

Miller, ¶ 52, 549 P.3d at 238 (quoting Heil Valley Ranch, 784 P.2d at

785). In concluding that “it was reasonable to interpret the broad

language in the release” at issue to bar the father’s common law

negligence claim, the court focused on the release language

addressing causes of potential accidents similar to the daughter’s

fall from the ski lift: the release “expressly stated that the pass

holder assumes the risk of ‘using the lifts’ and of ‘misloading,

entanglements, or falls from ski lifts and the negligence of ski area

employees.’” Id. at ¶¶ 52-53, 549 P.3d at 238 (emphasis added).

¶ 28 Because the Miller court reviewed the subject release by

scrutinizing whether the liability waiver language clearly and

unambiguously expressed the parties’ intentions to waive injuries

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caused by “fall[ing] from [a] ski lift[],” id. — the very activity that

caused the daughter’s injuries — the supreme court’s review of the

release at issue was consistent with the analyses in Stone and Doe.

See Stone, ¶ 35, 411 P.3d at 232 (holding that the assumption of

risk did not “clearly, unambiguously, and unequivocally bar [the

plaintiff]’s PLA claim”); Doe, ¶ 15, 525 P.3d at 686 (concluding that

the exculpatory language did not bar the plaintiff’s claims because

it did not “express the parties’ intention to waive [sexual abuse]

claims in clear, unambiguous, and unequivocal language”).

¶ 29 Given that Stone and Doe are consistent with Miller, we next

consider the reasoning in those cases to determine whether the

exculpatory clause in Shive’s membership agreement bars his PLA

claim.

¶ 30 (To support its argument that the exculpatory clause

“expressed the intention of the parties in a clear and unambiguous

fashion,” 24 Hour cites three state district court decisions. But

those decisions neither bind us nor are they persuasive authority in

support of 24 Hour’s argument. See Sidman v. Sidman, 2016 COA

44, ¶ 10, 411 P.3d 167, 169. Further, the facts and arguments in

those cases were materially different from the facts underlying

14
Shive’s PLA claim. See Bruschi v. 24 Hour Fitness USA, LLC, No.

24CV227 (Colo. Dist. Ct., Arapahoe Cnty. Apr. 28, 2025)

(unpublished order) (noting that the plaintiff had fallen while inside

the building housing the athletic club); Meister v. 24 Hour Fitness

Holdings, LLC, No. 16CV33860 (Colo. Dist. Ct., City & Cnty. of

Denv. Apr. 4, 2017) (unpublished order) (analyzing the plaintiff’s

argument that the release of liability was not in effect on the day of

the plaintiff’s injury); Fain v. 24 Hour Fitness USA, Inc., No.

12CV460 (Colo. Dist. Ct., Boulder Cnty. Jan. 7, 2013) (unpublished

order) (finding that the plaintiff was injured while exercising).)

3. The Exculpatory Clause in
Shive’s Membership Agreement Does Not
Clearly and Unambiguously Bar His PLA Claim

¶ 31 We next apply the case law discussed above to the central

issue in this appeal — whether a 24 Hour member could

“reasonably conclude” that, by signing a membership agreement

containing the exculpatory clause, the member was waiving claims

not necessarily based “on the inherent risks of injury related to

fitness activities.” Stone, ¶ 30, 411 P.3d at 231. Thus, to determine

the enforceability of the exculpatory clause, we must decide

whether, by signing the membership agreement, 24 Hour and Shive

15
intended “to extinguish liability” on claims such as Shive’s PLA

claim and whether the exculpatory clause “clearly, unambiguously,

and unequivocally expressed” that intent. Doe, ¶ 22, 525 P.3d at

687; see Stone, ¶ 35, 411 P.3d at 232.

¶ 32 Shive contends that the references to “facilities” in the

exculpatory clause must be limited to the “actual building” in which

24 Hour members recreate and do not encompass any physical

space outside the building. 24 Hour disagrees, asserting that the

exculpatory clause “unequivocally expresses the intent of the

parties to release [24 Hour] from liability for injuries that occur on

its property, regardless of the mechanism or location.” Further, it

argues that, because the exculpatory clause expressly covers

injuries regardless of “whether said use or said injury is related to

exercise or not,” and a member waives “without limitation, claims

against 24 Hour for negligence, premises liability, and products

liability,” Shive’s PLA claim “arising out of [a] slip and fall” was

“contemplated by the clear language” of the exculpatory clause.

¶ 33 The first two sentences of the exculpatory clause say that

“[u]sing [24 Hour’s] facilities involves the risk of injury” and that

those “[s]pecific risks vary from one activity to another” and “range

16
from minor injuries to major injuries, such as catastrophic injuries

including death.” Following those sentences, the clause says that,

“[i]n consideration of [a member’s] use of 24 Hour’s facilities and/or

participation in the activities offered by 24 Hour,” the member

“understand[s] and voluntarily accept[s] this risk . . . whether said

use or said injury is related to exercise or not.”

¶ 34 The terms “this risk” and “said injury” must be read together

with the “risk of injury” described in the clause’s first sentence —

the risk of injury inherent in “[u]sing [24 Hour’s] facilities.”

Similarly, “said use” means “use of 24 Hour’s facilities and/or

participation in the activities offered by 24 Hour.” Because “said

injury” refers to injuries sustained while “[u]sing [24 Hour’s]

facilities” and “said use” refers to the “use of 24 Hour’s facilities,”

the exculpatory clause’s plain language limits the phrase “whether

said use or said injury is related to exercise or not” to those injuries

sustained while “[u]sing [24 Hour’s] facilities.”

¶ 35 And significantly, the exculpatory clause concludes with the

statement that “24 Hour is providing recreational services,” which

makes clear that members use 24 Hour’s facilities for this type of

activity. In light of the reference to 24 Hour’s provision of

17
“recreational services” in the ultimate sentence of the exculpatory

clause, “one could reasonably conclude that by signing” the

membership agreement, the member “was waiving claims based

only on the inherent risks of injury” related to “recreational

services,” as opposed to claims arising from the risk of walking on

an icy sidewalk outside the club building. Stone, ¶ 30, 411 P.3d at

231.

¶ 36 The exculpatory clause’s description of “risk of injury” and

reference to “recreational services” unambiguously waive liability for

injuries sustained while “[u]sing [24 Hour’s] facilities” to participate

in “recreational services.” Thus, a member would likely recognize

that the member was waiving claims arising from injuries sustained

during the “use of 24 Hour’s facilities and/or participation in the

activities offered by 24 Hour.” Further, the member would

understand that this waiver applied regardless of “whether said use

or said injury [was] related to exercise or not.” See id.

¶ 37 We next turn to the scope of the word “facilities” as it appears

in the exculpatory clause.

¶ 38 The clause says that “24 Hour does not manufacture fitness or

other equipment at its facilities,” indicating that “facilities” means a

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physical space. We also consider the references to “facilities” in

section 4(a) of the membership agreement’s “facilities and services”

clause: a 24 Hour membership “shall include access to the facility

or facilities as shown and limited by the Membership Type.”

Section 4(c) of the facilities and services clause says that “24 Hour

regularly closes its facilities, or portions of its facilities.” And the

“membership” section of the membership agreement says that a

membership permits the member to “use 24 Hour’s premises,

facilities, equipment[,] and services.” Thus, this portion of the

membership agreement tells us that “facilities” means a physical

space that only members can access to use 24 Hour’s “recreational

services.”

¶ 39 The sidewalk on which Shive fell was not restricted to

members’ use; nonmembers could also access and walk on it.

Accordingly, when Shive fell, he was not using 24 Hour’s “facilities”

— its limited-access space where members, but not nonmembers,

could engage in its “recreational services” — as a member would

reasonably understand the term based on the language of the

membership agreement.

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¶ 40 24 Hour asserts that the location of Shive’s fall is immaterial

to our analysis. We disagree because the exculpatory clause only

bars Shive’s PLA claim if it clearly and unambiguously expresses

the parties’ intention to waive liability for injuries sustained on a

sidewalk outside the club building. See Jones, 623 P.2d at 378

(concluding that an exculpatory clause “expressed the parties’

intention in clear and unambiguous language” to waive the

plaintiff’s claim for personal injuries sustained in an airplane crash

because such clause “specifically included injuries sustained ‘while

upon [a corporation’s] aircraft’”); Chadwick, 100 P.3d at 468

(determining that an exculpatory clause expressed a clear intent to

release a corporation that guided the plaintiff on a hunting

expedition from “‘any’ liability for injuries ‘caused by or resulting

from’ [the plaintiff]’s ‘participation’ in the contracted-for hunting

expedition,” and holding that the clause barred the plaintiff’s

personal injury claim because the plaintiff was injured when

thrown from a mule during the guided hunting expedition).

¶ 41 Shive reasonably understood the membership agreement to

waive liability for claims arising from the use of 24 Hour’s exercise

facilities, such as the use of gym equipment, swimming pools,

20
sports fields, and basketball courts, and non-exercise facilities,

such as steam rooms, saunas, and locker rooms. But the term

“facilities” in the exculpatory clause does not clearly and

unambiguously cover a publicly accessible sidewalk outside 24

Hour’s building, on which it does not provide “recreational

services.” Therefore, the exculpatory clause does not clearly and

unambiguously bar Shive’s PLA claim.

¶ 42 24 Hour contends that Shive’s argument is based on

“linguistic gymnastics.” It argues that the exculpatory clause is not

limited in scope to injuries sustained while “[u]sing [24 Hour’s]

facilities.” In support of its position, 24 Hour cites the clause’s

language barring claims against 24 Hour for negligence, premises

liability, and products liability. It argues that a slip and fall like the

one that caused Shive’s injury is the “quintessential example” of a

PLA claim that the exculpatory clause prohibits.

¶ 43 We agree with 24 Hour that the exculpatory clause waives

liability for claims arising from a slip and fall that occurred within

its “facilities” — the recreational spaces located inside its building,

such as a gym floor, a basketball court, a pool deck, or a wet locker

room floor. But the mere reference to “premises liability” in the

21
exculpatory clause does not overcome the clause’s clear limiting

language or expand its scope to cover claims arising from injuries

sustained outside the club building.

¶ 44 In addition, 24 Hour correctly points out that the exculpatory

clause is only 9 lines long, consists of 227 words, and appears in a

legible typeface that includes emphasized language. Further, we

agree with 24 Hour that the clause is not buried among other

provisions of the membership agreement. While we agree that the

text of the exculpatory clause is readable, see Chadwick, 100 P.3d

at 467, we cannot ignore its plain language, see Doe, ¶¶ 19-20, 525

P.3d at 687.

¶ 45 For these reasons, we conclude that the exculpatory clause

does not express an intention of Shive and 24 Hour to waive 24

Hour’s liability for risks outside the club building “in clear and

unambiguous language.” Jones, 623 P.2d at 376. Indeed, the

clause indicates a “likelihood” that Shive understood that the “full

extent of the release provisions” covered claims for injuries arising

from his “use of 24 Hour’s facilities” — the physical spaces in which

24 Hour provides recreational services — and not injuries arising

22
from his use of a sidewalk outside 24 Hour’s building. Chadwick,

100 P.3d at 467.

¶ 46 The exculpatory clause is unenforceable to bar Shive’s PLA

claim under the fourth Jones factor because it does not express “in

clear and unambiguous language” that Shive and 24 Hour intended

to waive 24 Hour’s liability for Shive’s PLA claim. Jones, 623 P.2d

at 376; Miller, ¶ 53, 549 P.3d at 238. Accordingly, we reverse the

court’s grant of summary judgment to 24 Hour.

B. Shive’s Remaining Arguments

¶ 47 In light of our disposition of Shive’s argument based on the

fourth Jones factor, we need not decide whether the court failed to

consider the evidence in the light most favorable to Shive or

whether the exculpatory clause in Shive’s membership agreement is

invalid as a matter of public policy.

III. Disposition

¶ 48 The judgment is reversed, and the case is remanded to the

district court for further proceedings consistent with this opinion.

CHIEF JUDGE ROMÁN and JUDGE KUHN concur.

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