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July 24, 1986


The opinion of the court was delivered by: TROUTMAN



 On August 25, 1985, plaintiff Reuben Gimpel was injured when he fell from a bicycle rented at the Host Enterprises, Inc., resort in Lancaster, Pennsylvania. Gimpel was allegedly unable to stop the bicycle because of a malfunction of its brakes due to Host's failure to properly maintain and inspect it. *fn1"

 Defendant Host has moved for summary judgment, contending that the rental agreement which Gimpel signed contains an exculpatory clause releasing Host from any liability arising from the rental and use of the bicycle. Gimpel argues that the motion should be denied for both procedural and substantive reasons.

 In the first instance, Gimpel contends that Host failed to plead the affirmative defense of release in its answer to the complaint. For this reason, Gimpel argues that Host thereby waived the defense and should be precluded from raising the exculpatory clause as a basis for summary judgment. Host argues that its first opportunity to identify and authenticate Gimpel's signature on the rental agreement came at his deposition in March, 1986. Thus, Host contends that it should be granted leave to amend its answer to assert the affirmative defense notwithstanding Gimpel's contention that a motion to do so now is untimely.

 Fed. R. Civ. P. 15(a) allows amendments to pleadings at any time with leave of court and requires that leave be freely given, "when justice so requires". Because the circumstances of this case do not indicate that the defendant has been deliberately dilatory in moving to amend its answer and do not present any other reason for denying the amendment, we conclude that justice requires that it be allowed. Accordingly, Host's answer is deemed amended to include the affirmative defense of release.

 Turning to the merits of the motion for summary judgment, we look first to the law of Pennsylvania to determine the effect of exculpatory clauses in general before examining the clause at issue here.

 In Employers Liability Assurance Corp., Ltd. v. Greenville Business Men's Association, 423 Pa. 288, 291-293, 224 A.2d 620 (1966), the Pennsylvania Supreme Court set forth the conditions under which such clauses are valid and enforceable:

Generally speaking, an exculpatory clause is valid if: (a) "it does not contravene any policy of the law, that is, if it is not a matter of interest to the public or State . . ." (Citation omitted); (b) "the contract is between persons relating entirely to their own private affairs" (Citation omitted); (c) "each party is a free bargaining agent" and the clause is not in effect "a mere contract of adhesion, whereby [one party] simply adheres to a document which he is powerless to alter having no alternative other than to reject the transaction entirely". (Citation omitted).
Assuming, arguendo, that the instant exculpatory clause satisfies all three conditions and is valid, our case law requires that, even if valid, an exculpatory clause must meet certain standards [to be enforceable]. . . .
Such standards are: (1) contracts providing for immunity from liability for negligence must be construed strictly since they are not favorites of the law (Citations omitted); (2) such contracts "must spell out the intentions of the parties with the greatest of particularity"; (Citation omitted) and show the intent to release from liability "beyond doubt by express stipulation" and "no inference from words of general import can establish it" (Citation omitted); (3) such contracts must be construed with every intendment against the party who seeks the immunity from liability (Citation omitted); (4) the burden to establish immunity from liability is upon the party who asserts such immunity (Citation omitted).

 As noted, the exculpatory clause at issue here was contained in the rental agreement for the bicycle, called the "Ride Charge Agreement", and reads as follows:

User agrees to return said item in the same condition as when received, ordinary wear and tear excepted. User agrees to indemnify and hold Host free and harmless from all injuries to person or persons, including death, damages to property, loss of time, and/or any and all other loss or damages, whether caused or occasioned by the negligence of Host, its employees or servants, or any other person whatsoever, arising or flowing from the use, operation or rental of the said item by User. User agrees to pay or reimburse Host for all charges incidental to all breakages, shortages, damages, or losses other than such ordinary wear to said item caused by User. (Emphasis in original).

 In the case of Zimmer v. Mitchell and Ness, 253 Pa. Super. 474, 385 A.2d 437 (1978), the court considered and found valid and enforceable a very similar exculpatory clause. *fn2" There, as here, the plaintiff was injured when ...

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