Tina Marie Lund, as conservator of the Honorable Fred Karasov v. Calhoun Orange, Inc. d/b/a Orange Theory ...
Opinion text
STATE OF MINNESOTA
IN SUPREME COURT
A23-0149
Court of Appeals Moore, III, J.
Took no part, McKeig, Hennesy, and Gaïtas, JJ.
Dietzen, Christopher J., Acting Justice 1
Tina Marie Lund, as conservator of
the Honorable Fred Karasov,
Appellant,
vs. Filed: May 21, 2025
Office of Appellate Courts
Calhoun Orange, Inc. d/b/a
Orange Theory Fitness Minneapolis-Uptown,
Respondent,
Ultimate Fitness Group LLC, d/b/a
Orangetheory Fitness,
Respondent.
________________________
Jacob F. Siegel, Brandon Thompson, Kathleen Flynn Peterson, Colin F. Peterson, Ciresi
Conlin LLP, Minneapolis, Minnesota, for appellant.
Julia J. Nierengarten, John E. Radmer, Meagher + Geer, P.L.L.P., Minneapolis, Minnesota,
for respondent Calhoun Orange, Inc. d/b/a Orange Theory Fitness Minneapolis-Uptown.
Theodore J. Waldeck, Jason M. Stoffel, Waldeck & Woodrow, P.A., Minneapolis,
Minnesota, for respondent Ultimate Fitness Group LLC, d/b/a Orangetheory Fitness.
1
Appointed pursuant to Minn. Const. art. VI, § 2, and Minn. Stat. § 2.724, subd. 2
(2024).
Raoul Shah, Robins Kaplan LLP, Minneapolis, Minnesota, for amicus curiae Minnesota
Association for Justice.
Paul W. Magyar, Foley & Mansfield, PLLP, Minneapolis, Minnesota, for amicus curiae
Minnesota Defense Lawyers Association.
________________________
SYLLABUS
A contractual provision that shields a party from future liability for their own
negligent acts is subject to strict construction and is enforceable only when the provision
clearly and unequivocally states the parties’ intent that the contract shift liability for the
party’s own negligent acts. If a contract includes two clauses that both contain liability-
shifting language, those two clauses must be read together to determine whether the entire
document manifests a clear and unequivocal intent to encompass liability arising from acts
of negligence.
Affirmed.
OPINION
MOORE, III, Justice.
When Fred Karasov joined respondent Calhoun Orange’s fitness center in 2017, he
was required to sign a one-page “Client Intake Form,” which contained liability-shifting
provisions benefitting Calhoun Orange. In 2019, while participating in a workout class at
Calhoun Orange, Karasov suffered cardiac arrest and collapsed, resulting in significant,
permanent brain injuries. Karasov’s conservator, Tina Lund, sued Calhoun Orange,
alleging that its negligence was the cause of Karasov’s injuries. The district court granted
summary judgment to Calhoun Orange on Lund’s claims of negligence, negligent
2
undertaking, and medical negligence, concluding that they were barred by exculpatory
language in the Client Intake Form. A jury returned a verdict for Calhoun Orange on
Lund’s claim of willful and wanton negligence. Lund appealed the district court’s grant of
summary judgment on her negligence, negligent undertaking, and medical negligence
claims, and the court of appeals affirmed. We granted review of the question of whether
the Client Intake Form is enforceable to shield Calhoun Orange from liability for claims
arising from its own negligence.
Because the Client Intake Form signed by Karasov contains a provision that is a
clear and unequivocal expression of the parties’ intent to indemnify Calhoun Orange for
acts of its own negligence, and because additional waiver language in the liability
paragraph does not make that intent less clear, we conclude that the clause is enforceable
and bars Lund’s claims of ordinary negligence. Accordingly, we affirm the decision of the
court of appeals affirming the district court’s grant of summary judgment to Calhoun
Orange.
FACTS
In February 2017, Fred Karasov became a member at Calhoun Orange, a fitness
studio that formerly operated in the Uptown neighborhood of Minneapolis. 2 As part of the
membership process, Calhoun Orange required Karasov to complete and sign a document
titled “Client Intake Form.” The top of the form asked for information such as the
member’s height, weight, and address. The bottom of the form contained several
2
Calhoun Orange, which was a franchisee of the nationwide chain Orangetheory
Fitness, has since ceased operations.
3
paragraphs enumerating various fitness center policies, including a cancellation policy, an
age policy, and a dress code policy.
The middle of the form contained, in a smaller font than the other parts of the form,
four enumerated paragraphs, introduced with the following sentence: “I (the ‘Client’)
voluntarily desire to participate in physical exercise training classes conducted on behalf
[sic] Orangetheory Fitness Uptown 2640 Hennepin Aveue [sic], Minneapolis, MN. [sic]
55408 and understand agree [sic] to the following.” Our focus is on the liability-shifting
waiver provisions contained in the fourth numbered paragraph (the “liability paragraph”)
of the Client Intake Form. This paragraph read:
Client has been informed that any fitness program includes possible risks and
all exercises shall be undertaken at Client’s sole risk and discretion. Client
assumes full responsibility for any and all damages, injuries or losses that
may be sustained or incur, if any, while participating in any studio exercise
program or physical activity. Client hereby waives all claims against the
Studio, the Facility, the Studio instructors, officers, directors, employees or
agents of either and/or any successor assigns or [sic] and all claims, demands,
injuries, damages, actions, or causes of action, whatsoever to my person or
property arising out of or connected to the services, facilities, exercise
classes, or the facility where same is located (including the Studio and/or the
Facility, as applicable). Client hereby agrees to indemnify [sic] defend, hold
harmless, release and discharge the Studio and Facility from all claims,
demands, injuries, damage actions [sic] causes of action and from all acts of
active or passive negligence on the part of the Studio, the Facility, the Studio
instructors, their servants, agents, employees, and/or any successors and
assigns, whatsoever, for any damages, injuries or losses that may be
sustained by the Client arising from or in connection with the activities that
Client voluntarily participates [sic], including without limitation, attorney’s
fees, costs, and expenses of any litigation, arbitration or other proceeding.
Karasov signed the bottom of the form.
On September 7, 2019, while participating in an exercise class at Calhoun Orange,
Karasov suffered cardiac arrest and collapsed. A class participant notified the Calhoun
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Orange trainer that Karasov had collapsed, and the trainer “yelled for someone to call 911
and for someone to grab the AED.” While someone called 911, two others, both nurses,
began administering CPR and performing pulse checks. But Calhoun Orange’s automated
external defibrillator (AED)—which had been brought into the fitness room by another
Calhoun Orange employee and placed on the ground next to Karasov—was not
administered until paramedics arrived approximately 15 minutes later. The paramedics
successfully resuscitated Karasov with one shock from the AED and then brought him to
Hennepin County Medical Center. Karasov suffered significant brain damage due to the
prolonged deprivation of oxygen to his brain and is now permanently disabled. Karasov
now requires a wheelchair and other adaptive equipment, assistance with all basic activities
of daily life, and constant supervision.
Tina Lund—Karasov’s partner and conservator—sued Calhoun Orange and its
parent company. On Lund’s claims of negligence, medical negligence, and negligent
undertaking, the district court found that the liability paragraph shielded Calhoun Orange
from Lund’s claims of ordinary negligence and granted Calhoun Orange’s motion for
summary judgment. 3 The district court found that the claims were barred by a part of the
liability paragraph stating that “[c]lient hereby waives all claims against the Studio . . .
arising out of or connected to the services, facilities, exercise classes, or the facility where
same is located.”
3
Lund brought several other claims against both Calhoun Orange and its parent
company that are not before us. Her claim of willful and wanton negligence was tried
before a jury, which found for Calhoun Orange. The parent company was dismissed from
the appeal to this court by stipulation of the parties.
5
Lund appealed, arguing that under a recently decided case of our court—Justice v.
Marvel, LLC, 979 N.W.2d 894 (Minn. 2022)—this language from Calhoun Orange’s
liability paragraph should be treated as unenforceable as to her claims of ordinary
negligence. Lund v. Calhoun Orange, Inc., No. A23-0149, 2023 WL 8368507, at *4
(Minn. App. Dec. 4, 2023). In Justice, we decided that a waiver encompassing “any and
all claims” was insufficient under our strict construction standard governing exculpatory
clauses to be enforceable against claims arising from the defendant’s own negligence. 979
N.W.2d at 895 (internal quotation marks omitted). The court of appeals agreed with Lund
that the exculpatory language in the third sentence of the liability paragraph relied upon by
the district court must fail under the strict construction standard from Justice, but the court
affirmed the dismissal of Lund’s negligence claims based on the fourth sentence in the
paragraph: “[c]lient hereby agrees to indemnify . . . the Studio and Facility from all claims
. . . and from all acts of active or passive negligence on the part of the Studio, the Facility,
the Studio instructors, their servants, agents, employees, and/or any successors and
assigns.” Lund, 2023 WL 8368507, at *4.
Lund now asks our court to reverse the court of appeals, arguing that Calhoun
Orange’s liability paragraph is unenforceable under our precedent concerning contractual
language that purports to indemnify or exculpate a party for its own negligence.
ANALYSIS
We review a grant of summary judgment de novo. Justice, 979 N.W.2d at 898.
Summary judgment is appropriate when “there is no genuine issue as to any material fact
and the movant is entitled to judgment as a matter of law.” Minn. R. Civ. P. 56.01. Here,
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the district court found that Lund’s claims of negligence, medical negligence, and negligent
undertaking could not survive summary judgment due to liability-shifting language in the
Client Intake Form signed by Karasov. The question before us therefore is whether
Calhoun Orange’s liability-shifting provision is enforceable against Lund’s claims. 4
A.
We begin with a review of our case law concerning the enforceability of liability-
shifting contractual provisions. When interpreting a contract, we generally apply a
standard of fair construction, seeking an interpretation that is not “unduly liberal or harshly
strict . . . but . . . that will accomplish [the contract’s] stated purpose.” Indep. Sch. Dist.
No. 877 v. Loberg Plumbing & Heating Co., 123 N.W.2d 793, 799 (Minn. 1963) (citation
omitted) (internal quotation marks omitted). But we analyze two types of clauses in
contracts—exculpatory clauses, which purport to absolve a party from liability, and
indemnity clauses, which shift liability away from the benefitted party to another party—
under a standard of strict construction. See Dewitt v. London Rd. Rental Ctr., Inc., 910
N.W.2d 412, 416–17 (Minn. 2018) (analyzing an indemnity clause); Solidification, Inc. v.
Minter, 305 N.W.2d 871, 873 (Minn. 1981) (analyzing an exculpatory clause). We have
long held that when contractual provisions “exonerate[] a party from liability” they must
4
Calhoun Orange argues that even if the liability-shifting clause in this case was
unenforceable, Lund’s ordinary negligence claims would be barred by the doctrine of
collateral estoppel based on the jury verdict on the claim of willful and wanton negligence.
See Mach v. Wells Concrete Prods. Co., 866 N.W.2d 921, 927 (Minn. 2015) (citation
omitted) (internal quotation marks omitted) (“[O]nce a court has decided an issue of fact
or law necessary to its judgment, that decision may preclude relitigation of the issue in a
suit on a different cause of action involving a party to the first case.”). Because we find
the indemnity clause to be enforceable, we need not reach this issue.
7
be “strictly construed against the benefited party” because such provisions are “not favored
in the law.” Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920, 923 (Minn. 1982). While
these two types of clauses are not identical, and we have discussed them separately, in
Justice we clarified our law and held that both “indemnity clauses and exculpatory clauses
are subject to the same standard of strict construction.” Justice, 979 N.W.2d at 900. 5
Under strict construction, contractual provisions that “purport[] to release the
benefited party from liability for intentional, willful or wanton acts” are void and
unenforceable. Schlobohm, 326 N.W.2d at 923. But “parties to a contract may, without
violation of public policy, protect themselves against liability resulting from their own
negligence.” Id. at 922–23. That a contractual provision is so broad “that it necessarily
includes the indemnitee’s own negligence” does not necessarily mean that it survives strict
construction. Dewitt, 910 N.W.2d at 417. A party seeking to shield itself from liability for
acts of its own ordinary negligence “must use specific, express language that clearly and
unequivocally states the contracting parties’ intent” to include negligence in the scope of
the waiver. Id. (citation omitted) (internal quotation marks omitted).
5
In Justice, we recognized that “[t]he difference between an exculpatory clause and
an indemnity clause is that generally, ‘[a]n exculpatory clause purports to deny an injured
party the right to recover damages from the person negligently causing the injury, while an
indemnification clause attempts to shift the responsibility for the payment of damages to
someone other than the negligent party.’ ” Justice, 979 N.W.2d at 901 (quoting 57A Am.
Jur. 2d Negligence § 43 (2022)). But we also recognized their similarity, in that
“sometimes, an indemnification clause shifts liability ‘back to the injured party, thus
producing the same result as an exculpatory provision.’ ” Id. (quoting 57A Am. Jur. 2d
Negligence § 43).
8
In our most recent case applying the strict construction standard, Justice v. Marvel,
LLC, we considered a question of first impression: “how strict construction applies when
an exculpatory clause purports to release all claims of liability without specific reference
to negligent acts.” 979 N.W.2d at 899. Justice involved claims of negligence brought by
an 18-year-old for injuries he sustained at an amusement play area when he was seven
years old. Id. at 896. The appellant’s mother had signed a waiver that purported to
exculpate the company that owned the play area for “any and all claims,” and one of the
questions before us was whether such a waiver was sufficiently “clear” and “unequivocal”
to be enforceable against claims of negligence. Id. at 902 (internal quotation marks
omitted). We held that it was not. Id. We determined that although the phrase “any and
all claims” was theoretically broad enough to encompass claims of negligence, the
language was not specific enough to manifest a “clear and unequivocal” intent of the parties
to shield the company from liability for its own negligence and was therefore
unenforceable. Id. (internal quotation marks omitted).
But in Justice, we left undisturbed our line of cases recognizing that waiver clauses
that do explicitly express a party’s intent to shield itself from liability for acts of its own
negligence are enforceable as bars to negligence claims. Schlobohm is illustrative here.
See 326 N.W.2d at 920. Schlobohm involved a lawsuit for negligence against a health spa
by one of its customers for injuries sustained while using a weightlifting machine. Id.
at 922. The Schlobohm court described that because “the claims of the respondents [were]
based on negligence” and made “no claim that Spa Petite or its employees acted willfully,
intentionally or wantonly,” that therefore, because the waiver at issue “specifically
9
purport[ed] to exonerate Spa Petite from liability for acts of negligence and negligence
only,” strict construction did not bar judicial enforcement of the clause. Id. at 923. In
Justice, we reaffirmed that an indemnity clause is enforceable under strict construction
when it includes “an express provision that indemnifies the indemnitee for liability
occasioned by its own negligence,” and when it “fairly apprise[s] [the indemnitor], in clear
and unequivocal language, that the provision made [the indemnitor] liable for claims
against [the indemnitee] related to [the indemnitee’s] own conduct.” Justice, 979 N.W.2d
at 899–900 (quoting Dewitt, 910 N.W.2d at 417, 419) (internal quotation marks omitted).
This standard controls in this case, and we turn next to its application here.
B.
The strict construction standard requires us to determine whether Calhoun Orange’s
Client Intake Form manifested a clear and unequivocal intent by the parties to shield
Calhoun Orange from claims arising from its own negligence. Though this is a close case,
we conclude that the exculpatory clause in the third sentence when read together with the
indemnification clause in the fourth sentence of the form’s liability paragraph—
specifically the fourth sentence’s language stating “[c]lient hereby agrees to indemnify . . .
the Studio and Facility from all claims . . . and from all acts of active or passive negligence”
of Calhoun Orange and those acting on its behalf—“clearly and unequivocally state[] the
contracting parties’ intent” to shield Calhoun Orange from liability for its own negligence.
Dewitt, 910 N.W.2d at 417 (citation omitted) (internal quotation marks omitted).
Therefore, the liability paragraph of the Client Intake Form is enforceable to bar Lund’s
claims of ordinary negligence against Calhoun Orange for Karasov’s injuries.
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Lund contends that despite this explicit language within the indemnification clause
referencing acts of negligence, the clause is unenforceable. Lund offers three primary
theories in support of her position: one relying on the analysis put forth by the dissent at
the court of appeals, another pointing to “limiting language” at the end of the
indemnification clause, and a final set of arguments that encompass various defects in the
physical formatting and presentation of the Client Intake Form. None of these theories
prevail on these facts. We now address each in turn.
1.
First, Lund argues that the partial dissent at the court of appeals, rather than the
majority, correctly applied our strict construction standard in concluding that Lund’s
claims against Calhoun Orange were not barred by the liability paragraph. The dissent
concluded that there was a direct contradiction between the liability paragraph’s
indemnification clause (“sentence four”) and the exculpatory clause preceding it (“sentence
three”), because sentence three purported to exculpate Calhoun Orange for “all claims”
(making it unenforceable against claims of negligence under our rule from Justice), and
sentence four limited indemnification to acts of negligence. Lund, 2023 WL 8368507, at
*10 (Cleary, J., concurring in part and dissenting in part). Echoing the partial dissent, Lund
contends that the two sentences “contradict one another,” and thus “fail to meet the strict
construction requirements,” meaning “the contract must be interpreted against Calhoun
Orange.” Id. at *8, *10.
Responding to this contention at oral argument, Calhoun Orange said that if
sentence three of the paragraph is ruled unenforceable under Justice, that clause should be
11
excised from the contract, leaving sentence four to be read in isolation. We reject this
approach. Central to our strict construction analysis is the concern that a contractual
provision which “relieve[s] one party of the obligation to use due care,” must adequately
apprise all parties to the contract of the full extent of the rights they are waiving. Justice,
979 N.W.2d at 901 (quoting 57A Am. Jur. 2d Negligence § 46 (2022)) (internal quotation
marks omitted). Because a party’s understanding of the liability paragraph would have
necessarily included both sentence three and sentence four, we find it illogical to
retroactively sever sentence three from the contract simply because we now deem it
unenforceable against claims of negligence. We therefore hold that where a liability
paragraph contains two liability-shifting clauses of diverging scope, these clauses must be
read together, placing the court in the shoes of the parties signing the contract. If these two
clauses were to stand in direct conflict with one another or to be of irreconcilable scope, it
would logically follow that such a direct conflict could render the entire waiver equivocal.
But there is no such direct conflict here. Lund is correct that sentence three, standing
alone, would be unenforceable against claims of negligence under the rule we announced
in Justice. But in Justice we held that an entity that purports to exculpate itself for “any
and all claims” does not lawfully shield itself from claims of negligence because that
language “does not specifically provide that it releases [the party] from liability for its own
negligent acts.” Justice, 979 N.W.2d at 902. In this case, sentence four remedies that
problem. By expressly providing for indemnification of claims related to “acts of active
or passive negligence on the part of the Studio, the Facility, the Studio instructors, their
servants, agents, employees, and/or any successors and assigns,” the specificity concerns
12
raised by the waiver from Justice are no longer present. To be sure, the liability paragraph’s
third and fourth sentences differ in scope—but they do not contradict each other. While
sentence three would have been insufficient on its own to preclude Lund’s claims, it does
not obfuscate what is made clear in the fourth sentence: that the Client Intake Form was
intended to indemnify Calhoun Orange for claims related to its own negligence by shifting
liability back to the injured party, “thus producing the same result as an exculpatory
provision.” Justice, 979 N.W.2d at 901 (quoting 57A Am. Jur. 2d Negligence § 43).
2.
Second, Lund argues that language at the end of sentence four—“arising from or in
connection with the activities that Client voluntarily participates”—makes the scope of
Calhoun Orange’s indemnity unclear despite its express reference to acts of negligence.
Lund argues that the language operates as “limiting language,” and renders the clause
unenforceable. We have held that “additional limiting language” in an indemnity
agreement can “render an otherwise clear and unequivocal provision equivocal, thus
precluding indemnity.” National Hydro Systems v. M.A. Mortenson Co., 529 N.W.2d 690,
694 (Minn. 1995). Lund states that the “arising out of” language in the Client Intake Form
has that effect here.
We conclude that the additional language Lund relies on does not render the liability
paragraph’s fourth sentence equivocal. The context of our discussion of “limiting
language” in National Hydro was a question of whether an indemnification clause clearly
and unequivocally encompassed claims arising from acts of the indemnitee’s own
negligence. Id. The contract in that case stated that “the contractor shall indemnify and
13
hold harmless and defend the commission and the engineer and their agents . . . against all
claims . . . of any nature or form whatsoever whether founded in breach of contract,
negligence, or pursuant to [c]ontract provisions . . . which arise out of or result from
performance of the work by contractor.” Id. at 692 (emphasis omitted). We determined
that the language, “which arise out of or result from performance of the work by
contractor,” made the scope of the indemnity unclear—therefore, we held that the contract
did not “clearly and unequivocally express[] an intent to indemnify [the indemnitee] for
claims based on [its] own negligence.” Id. at 694. But because the provision here expressly
contemplates indemnification for “all acts of active or passive negligence on the part of the
Studio, the Facility, the Studio instructors, their servants, agents, employees, and/or any
successors and assigns,” neither the party to be indemnified (the gym, Calhoun Orange)
nor the acts covered by the indemnification (acts of negligence) are called into question by
the language Lund cites.
3.
Finally, Lund argues that the format of the Client Intake Form made the liability
paragraph unclear and difficult to understand. Lund points out that the generic title of the
form did not notify Karasov that it contained a waiver, and that the liability paragraph was
part of a list of four numbered, unlabeled paragraphs in small font—while the entire top
part of the form was printed in larger font, and the policies below the liability paragraph
all had bolded and underlined titles such as “Late Cancel Policy,” and “Dress Code Policy.”
Moreover, although Calhoun Orange required clients to sign their initials in a separate box
to indicate their consent to a $69 or $99 charge for failure to return equipment at the end
14
of class, Karasov’s agreement to the liability paragraph was simply presumed by his
signature at the bottom of the document. Lund argues further that the waiver paragraph is
repetitive, dense, and filled with legalese—and that throughout the form, there are
numerous grammatical and typographical errors. In light of these considerations, Lund
asks us to adopt the reasoning of decisions from other jurisdictions holding exculpatory
clauses to be unenforceable when they are “not conspicuous.” See, e.g., Atkins v. Swimwest
Fam. Fitness Ctr., 691 N.W.2d 334, 341–42 (Wis. 2005).
But Lund did not raise these format-related arguments at the district court, at the
court of appeals, or in her petition for review. Rather, she asserted them for the first time
in her briefing to our court and at oral argument. The question, therefore, is not properly
before us and is forfeited. See In re GlaxoSmithKline PLC, 699 N.W.2d 749, 757 (Minn.
2005) (“Generally, we do not address issues that were not raised in a petition for review.”).
We reiterate here that exculpatory and indemnification clauses are not favored in the law.
But whether the Client Intake Form’s format was deficient to the extent that it failed to
provide Karasov with a clear and unequivocal communication of Calhoun Orange’s intent
to indemnify itself for acts of its own negligence is not a question that is properly before
us. We express no view today as to how we may rule on such questions in future cases.
* * *
Reading the exculpatory clause in sentence three of the liability paragraph in
Calhoun Orange’s Client Intake Form together with the indemnification clause in sentence
four, we hold that, because sentence four states “[c]lient hereby agrees to indemnify . . .
the Studio and Facility from all claims, demands, injuries, damage actions [sic] causes of
15
action and from all acts of active or passive negligence on the part of the Studio, the
Facility, the Studio instructors, their servants, agents, employees, and/or any successors
and assigns,” the form manifested a clear and unequivocal intent to indemnify Calhoun
Orange for acts of its own negligence, making it enforceable under our strict construction
standard. And here, this indemnification clause produces the same result as an exculpatory
provision because it shifts liability back to the injured party. Thus, the court of appeals
correctly affirmed the district court’s grant of summary judgment to Calhoun Orange on
Lund’s claims of ordinary negligence.
CONCLUSION
For the foregoing reasons, we affirm the decision of the court of appeals.
Affirmed.
MCKEIG, HENNESY, and GAÏTAS, JJ., took no part in the consideration or
decision of this case.
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