Allegations of fraud inducing a non-English speaking client to sign a release are enough to void the release in California.

Second issue, intentionally increasing the risk to the plaintiff after the release has been signed is also enough to void a release.

Jimenez et al., v. 24 Hour Fitness USA, Inc., 237 Cal. App. 4th 546; 188 Cal. Rptr. 3d 228; 2015 Cal. App. LEXIS 494

State: California

Plaintiff: Etelvina Jimenez et al.

Defendant: 24 Hour Fitness USA, Inc.

Plaintiff Claims: 1) the liability release is not enforceable against plaintiffs’ claim of gross negligence; (2) the release was obtained by fraud and misrepresentation; and (3) the release only encompasses reasonably foreseeable risks and Etelvina’s injury was not reasonably foreseeable at the time she signed the release.

Defendant Defenses: Release

Holding: for the plaintiff

Year: 2015

This is a fitness center case that has two very important issues in the appellate court decision. The first is proof of a product liability claim against the defendant fitness facility for failing to follow the manufacturer’s recommendations. The second is the release may be void because the plaintiff did not read or understand English, and she was fraudulent induced to sign the release.

The plaintiff went to the defendant fitness facility to join. At the time, she did not read or speak English. The plaintiff was directed to the membership manager. During their interaction, he used gestures and pointed to the monthly price on a computer monitor.

On the day she joined, she was directed to the membership manager, Justin Wilbourn. She was then required to sign a membership agreement. However, Etelvina could not read or speak English, and Wilbourn did not speak Spanish. Wilbourn knew Etelvina did not read or speak English. Nevertheless, he did not call a Spanish-speaking employee to help him translate. Instead, he pointed to his computer screen to a figure, $24.99, indicating the membership fee, and made pumping motions with his arms like he were exercising. Etelvina understood the numbers, which are identical in Spanish, and she understood Wilbourn’s physical gestures to mean that if she paid that amount, she could use the facility. She could not read anything else. Wilbourn then pointed to the lines in the agreement for Etelvina to sign.

The plaintiff signed the release and had been a member for two years when the incident occurred.

The plaintiff was injured when she fell off a treadmill. She does not remember the incident. Expert witnesses for the plaintiff established she fell and suffered a head injury when she struck an exposed steel foot of a leg exercise machine. The exposed foot was 3’ 10” behind the treadmill she was on. The owner’s manual of the treadmill and an expert witness hired by the plaintiff stated the safety area behind the treadmill should be 6’ x 3’.

However, the treadmill manufacturer’s owner’s manual instructed in a section titled “Treadmill Safety Features”: “[I]t is important to keep the area around the treadmill open and free from encumbrances such as other equipment. The minimum space requirement needed for user safety and proper maintenance is three feet wide by six feet deep … directly behind the running belt.” The manufacturer’s assembly guide for the treadmill also says to provide a minimum six-foot clearance behind the treadmill for “user safety” and maintenance.

The defendant filed a motion for summary judgment, which was granted and the plaintiff appealed.

Analysis: making sense of the law based on these facts.

The court first laid out when a motion for summary judgment should be granted by the trial court. The party filling the motion must argue there are not factual issues, only legal issues and the law is on the side of the party filing. The responding party then to stop the granting of the motion must argue there are factual issues still at issue. When looking at the motions any decision that must be decided must be done so in favor of the party opposing the motion.

A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law.” “[G]enerally, from commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact fact, that he is entitled to judgment as a matter of law.” If a defendant shows that one or more elements of a cause of action cannot be established or that there is a complete defense to that cause of action, the burden shifts to the plaintiff to show that a triable issue exists as to one or more material facts. If the trial court finds that no triable issue of fact exists, it then has the duty to determine the issue of law.

The court then looked at the definition of ordinary negligence and gross negligence under California law.

“‘Ordinary negligence’–an unintentional tort–consists of a failure to exercise the degree of care in a given situation that a reasonable person under similar circumstances would employ to protect others from harm.’Gross negligence’ long has been defined in California and other jurisdictions as either a ‘”‘want of even scant care'”‘ or ‘”‘an extreme departure from the ordinary standard of conduct.’

The court then examined the arguments concerning the product liability claims. The defendant argued that there was no industry standard of care for a safety zone around the treadmill. However, the court did not buy the argument because the manufacturer’s manual described a safety zone that should be observed.

24 Hour contends that there was no industry standard regarding a treadmill safety zone. They offer no cases or examples of any industry standard that violates a manufacturer’s safety directions. Indeed, it could be reasonably inferred that it is unlikely an industry would develop a standard that violates the express safety directions of the manufacturer.

The plaintiff’s pointed to three different requirements for a safety zone. The manufacturer’s owner’s manual, the manufacturer’s assembly instructions and the testimony of an expert witness of the plaintiff.

(1) the treadmill manufacturer’s owner’s manual instructed in its “Treadmill Safety Features” section that “[t]he minimum space requirement needed for user safety and proper maintenance is three feet wide by six feet deep”; (2) the manufacturer’s assembly guide for the treadmill also instructs that the treadmill requires a minimum six-foot-deep clearance behind it “for user safety and proper maintenance” (italics added); and (3) plaintiffs’ expert, Waldon, declared that “[f]or the safety of the users and in order to minimize injury, it is important that a safety zone behind the treadmill be kept clear of other machines and obstacles so that users falling off or pushed off the rear of the treadmill do not strike such objects,” and he opined that 24 Hour’s act of placing other exercise equipment inside the safety zone “greatly increased the risk of injury to [Etelvina].”

The evidence presented by the plaintiff the court found could be viewed as an industry standard.

In our view, based on the evidence plaintiffs presented, a jury could reasonably find that (1) it is standard practice in the industry to provide a minimum six-foot safety zone behind treadmills, based on the owner’s manual, assembly guide, and Waldon’s declaration as an expert; (2) 24 Hour did not provide this minimum six-foot safety zone, as declared by Neuman; and (3) the failure to provide the minimum safety zone was an extreme departure from the ordinary standard of conduct, as implied in Waldon’s declaration.

Later in reinforcing its statement the court found the only reason to place so many pieces of equipment so close together would be to make more money. “It can be inferred that 24 Hour did so for the purpose of placing more machines into its facility to accommodate more members to make more money.”

The next issue was the issue that the release was obtained by fraud and misrepresentation.

Plaintiffs contend that there are triable issues of fact as to whether 24 Hour obtained Etelvina’s sig-nature on the liability release through fraud and misrepresentation, which would invalidate the release as to all of plaintiffs’ theories of recovery.

The court looked at what a release is and when it can be voided.

A release may negate the duty element of a negligence action.” As we have noted, in order to absolve itself of responsibility for any ordinary negligence, it was 24 Hour’s burden to establish the validity of the release “as applied to the case at hand.”

Generally, a person who signs an instrument may not avoid the impact of its terms on the ground that she failed to read it before signing. However, a release is invalid when it is procured by misrepresentation, overreaching, deception, or fraud. “It has often been held that if the releaser was under a misapprehension, not due to his own neglect, as to the nature or scope of the release, and if this misapprehension was induced by the misconduct of the releasee, then the release, regardless of how comprehensively worded, is binding only to the extent actually intended by the releaser.”

The defendant argued there was no evidence that the employee made affirmative representations that the plaintiff to believe she was signing anything other than what was in front of her, the release.

Another significant issue the court found was the failure of the defendant employee to follow his own policy in this case and find a Spanish-speaking employee to translate. The defendant argued it had no duty to translate the release to the plaintiff.

However, the court stated it does not require a strong showing of misconduct to go to a jury on fraud and misrepresentation, only a slight showing. “A strong showing of misconduct” by the plaintiff is not necessary to demonstrate the existence of a triable issue of fact here; only a “‘slight showing'” is required.”

Here, if a jury were to be persuaded that Wilbourn made misrepresentations to Etelvina about the contents of the agreement by making nonverbal gestures indicating that what she was signing related only to being allowed to exercise if she paid the price on the computer screen, it would be entitled to find that Etelvina’s signature on the release was produced by misrepresentation and that the release is not enforceable against her.

Looking at all the facts and inferences construed in the favor of the plaintiff the court found the evidence could be interpreted by a jury to be fraud.

The last issue and the one that should be a clear warning to all, is the change in the risk by the defendant after the plaintiff signed the release. The person signing the release assumes the standard safety precautions are being undertaken by the defendant at the time the release is signed. If those precautions are changed, meaning increased by the defendant after the release is signed, the release may be unenforceable.

On appeal, plaintiffs also contend that the release is unenforceable because a release only encompasses risks that are foreseeable at the time it is signed, and it was not reasonably foreseeable that 24 Hour would intentionally increase the risk of danger to its treadmill users.

However, the plaintiff’s did not raise this argument at the trial court so the court did not rule on it. However, the court clearly thought it would be sufficient to void the release in this case.

So Now What?

There are two clear issues here that everyone should be aware of. The first is if the manufacturer of a product says this is how the product should be used; this can be interpreted as the standard of care and how you MUST use the product. That use of the product includes any safety information the product describes.

The second is any act that could be interpreted as fraudulent can be used to void a release. The release was not voided because the plaintiff could not read or understand it. The release was sent back to determine if the actions of the defendant were fraudulent in inducing the plaintiff to sign the release.

The final issue is the change of the risk after the release is signed. The court seems to say that at the time the release is signed the risk can be assumed by the plaintiff to be the normal risks associated with the activity or sport. If at any time after the release is signed, the actions of the defendant change or increase those risks, the release maybe void by the plaintiff.

What do you think? Leave a comment.

If you like this let your friends know or post it on FB, Twitter or LinkedIn

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Copyright 2016 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

Mobile Site: http://m.recreation-law.com

By Recreation Law           Rec-law@recreation-law.com     James H. Moss

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Product Liability, Fitness, 24 Hour Fitness, Release, Fraud, Misrepresentation, Misrepresentation and Fraud, Treadmill, Safety Zone, Increase the Risk,