The Fourth District Court of Appeal has reversed a summary judgment for national gym chain Fitness International LLC—known as LA Fitness—ordering the trial court to decide whether a pop-up window on a computer tablet prevented the plaintiff in a personal injury case from reading an exculpatory clause in his contract.

Plaintiff Jeffrey Savoia sued his Hollywood gym and its manager in 2017, claiming he was injured after slipping on cleaning product employees had sprayed to remove mildew from bathroom shower curtains. The defendants denied any wrongdoing, and Broward Circuit Judge Jeffrey R. Levenson found Savoia had waived his claim when he signed an electronic membership agreement.

But that was a mistake, according to the appellate panel, because Levenson didn't address "material and unresolved issues of fact" Savoia had raised about how the contract was presented to him electronically.

The plaintiff argued he didn't knowingly agree to the waiver, claiming he only saw page one of three of the contract, which didn't include the clause. Savoia claimed a pop-up window for his signature obscured parts of the electronic version, and he wasn't given a hard copy. He also alleged there was no indication he needed to scroll down and that a staff member said the contract only related to his financial obligations.

"Thus, despite knowing that some of the text was blocked, believing the contract consisted only of financial terms, Savoia may have been induced into not reading further by the employee," the opinion said.

Though Florida law says parties have a duty to learn the contents of a contract before they sign it, the appellate panel found this case might fit under one of two exceptions to the rule— reserved for parties who show that parts of a contract were concealed or that they were discouraged from reading it.

Fourth DCA Judge Cory Ciklin wrote the opinion, backed by Judge Alan Forst. They pointed to a similar reversal in Parham v. East Bay Raceway, where the plaintiff claimed part of a contract was folded over.

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'He could have read the stuff'

Dissenting, Judge Jonathan Gerber said he would affirm the lower court's ruling, writing, "The plaintiff's choice not to read the contract is where this case began, and where this case should end."

The way Gerber saw it, the plaintiff undisputedly chose not to read the contract or scroll through it, as he testified, "I was thinking that my friends already read the stuff, so I didn't have to worry about it."

"If his friends were able to 'read the stuff,' then presumably he understood that he could have 'read the stuff,' Gerber wrote. "He simply chose not to."

But the majority found that, regardless of whether the plaintiff ultimately prevails, the issue still needed to be analyzed.

Plaintiffs attorney John Pelzer of Greenspoon Marder in Fort Lauderdale called the case a narrow but important exception to the rule on reading contracts.

"I thought of this as being the electronic equivalent of having an unscrupulous salesman put a contract out on the table, cover up the text with his left hand and point to the signature line with his right," Pelzer said. "Certainly, the jury might agree with Judge Gerber, or they might agree with the other two judges, but the point is that a jury gets to decide."

Defense counsel Michael LeRoy of Fulmer LeRoy & Albee in Orlando said he plans to fight the decision.

"We are extremely surprised by and disappointed in the ruling and feel that the court incorrectly correlated the facts of our case to those in the Parham case, upon which it heavily relied in issuing its ruling," LeRoy said. "We strongly agree with the dissent authorized by Judge Gerber and feel that we will prevail, accordingly, on a motion for directed verdict at trial."

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