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McClure, et al., v. Life Time Fitness, Inc., 2014 U.S. Dist. LEXIS 167483

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

Posted: March 29, 2016 | Author: Recreation Law | Filed under: California, Health Club, Legal Case, Release (pre-injury contract not to sue) | Tags: 24 Hour Fitness, fitness, Fraud, Increase the Risk, Misrepresentation, Misrepresentation and Fraud, Product liability, Release, Safety Zone, Treadmill | Leave a comment

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

Etelvina Jimenez et al., Plaintiffs and Appellants, v. 24 Hour Fitness USA, Inc., Defendant and Respondent.

C071959

COURT OF APPEAL OF CALIFORNIA, THIRD APPELLATE DISTRICT

237 Cal. App. 4th 546; 188 Cal. Rptr. 3d 228; 2015 Cal. App. LEXIS 494

June 9, 2015, Opinion Filed

SUBSEQUENT HISTORY: Time for Granting or Denying Review Extended Jimenez v. 24 Hour Fitness USA, Inc., 2015 Cal. LEXIS 8476 (Cal., Aug. 10, 2015)

Review denied by, Request denied by Jimenez v. 24 Hour Fitness United States, 2015 Cal. LEXIS 9252 (Cal., Sept. 23, 2015)

PRIOR HISTORY: [***1] APPEAL from a judgment of the Superior Court of Sacramento County, No. 34201100096852-CUPOGDS, David I. Brown, Judge.

DISPOSITION: Reversed.

COUNSEL: Moseley Collins III and Thomas G. Minder for Plaintiffs and Appellants.

Bruce L. Davis and Jack C. Nick for Defendant and Respondent.

JUDGES: Opinion by Murray, J., with Blease, Acting P. J., and Hull, J., concurring.

OPINION BY: Murray, J.

OPINION

[**230] MURRAY, J.–Plaintiffs Etelvina and Pedro Jimenez appeal from summary judgment in favor of defendant 24 Hour Fitness USA, Inc. (24 Hour), in plaintiffs’ negligence action stemming from a catastrophic injury sustained by Etelvina while using a treadmill at 24 Hour. Plaintiffs asserted that 24 Hour was grossly negligent in setting up the treadmill in a manner that violated the manufacturer’s safety instructions. 24 Hour moved for summary judgment, contending that it was not liable as a matter of law because Etelvina signed a liability release when she joined the gym. The trial court agreed and granted summary judgment.

On appeal, plaintiffs contend that the trial court erred in granting summary judgment in 24 Hour’s favor because (1) the liability release is not enforceable against plaintiffs’ claim of gross negligence; (2) the release was obtained [***2] 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.

The third contention is forfeited for purposes of this appeal, but we agree with the first two contentions. Accordingly, we reverse. [*549]

FACTUAL AND PROCEDURAL BACKGROUND

Undisputed Facts1

1 The facts are taken from plaintiffs’ and 24 Hour’s separate statements of fact. The only fact that was specifically disputed was 24 Hour’s claim that plaintiffs did not identify “any statutory violation committed by 24 Hour.” Plaintiffs disputed this assertion, responding that Civil Code section 1668 precludes releases obtained through fraud. 24 Hour did not dispute any of plaintiffs’ facts but did object to most of them on various evidentiary grounds, and the trial court overruled these objections. The court’s ruling on defendant’s objections is not challenged on appeal. Accordingly, plaintiffs’ separate statement of facts is undisputed for purposes of our review on appeal. (See Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 [100 Cal. Rptr. 2d 352, 8 P.3d 1089] [“On [HN1] appeal after a motion for summary judgment has been granted, we review the record de novo, considering all the evidence set forth in the moving and opposition papers [***3] except that to which objections have been made and sustained.”].)

Plaintiffs filed a complaint against 24 Hour stating causes of action for premises [**231] liability, general negligence, and loss of consortium. The action arose out of injuries Etelvina sustained on January 16, 2011, while exercising at a 24 Hour facility in Sacramento, California. Etelvina’s expert opined that she fell backwards off of a moving treadmill and sustained severe head injuries when she hit her head on the exposed steel foot of a leg exercise machine that 24 Hour placed approximately three feet 10 inches behind the treadmill.

24 Hour filed an answer to the complaint generally denying the allegations and claiming several affirmative defenses, including the defense that plaintiffs’ claims were barred by a liability release.

At the time of her injuries, Etelvina was a member of 24 Hour. She joined 24 Hour approximately two years before the day she sustained her injury, and thereafter, she used the facilities regularly several times per week. 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 [***4] 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 was 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 membership agreement contained a liability release provision, which provided: “Using the 24 Hour USA, Inc. (24 Hour) facilities involves the risk [*550] 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 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 [***5] and independent contractors will not be liable for any injury, including, without limitation, personal, bodily, or mental injury, economic loss or any damage to you, your spouse, guests, unborn child, or relatives resulting from the negligence of 24 Hour or anyone on 24 Hour’s behalf or anyone using the facilities whether related to exercise or not. … By signing below, you acknowledge and agree that you have read the foregoing and know of the nature of the activities at 24 Hour and you agree to all the terms on pages 1 through 4 of this agreement and acknowledge that you have received a copy of it and the membership policies.”

Wilbourn did not point out the release to Etelvina or make any other indications about the scope of the agreement aside from his gestures mimicking exercise and the fee. Etelvina believed she signed an agreement only to pay the monthly fee of [**232] $24.99. In her declaration supporting plaintiffs’ separate statement, Etelvina declared that “Wilbourn misrepresented the agreement and deceived [her]. He hid from [her] that she was also signing a release of liability.” Etelvina also declared that Wilbourn “misled” and “defrauded” her, and she relied on Wilbourn’s “indication [***6] of the meaning of the contract.”²

2 Plaintiffs also submitted a declaration by Etelvina’s sister, Emelia Villaseñor, who declared that she went through the same process at 24 Hour and was similarly misled as to the contents of the membership agreement.

Etelvina has no memory of the incident leading to her injuries. However, Laurence H. Neuman, an expert on civil engineering and accident reconstruction, investigated the incident. In the course of his investigation, Neuman determined that the 24 Hour location in question had 21 treadmill machines. In the area where Etelvina fell, “the distance directly behind the running belt of the treadmill to the closest piece of equipment was 3 feet 10 inches.” Neuman determined that other treadmills in the gym were placed with an even shorter distance between the running belts and other gym equipment, approximately three feet. These measurements reflect the same conditions present at the time of Etelvina’s injuries.

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 [***7] requirement needed for user safety and proper [*551] maintenance is three feet wide by six feet deep … directly behind the running belt.” (Italics added.) 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. Neuman determined that none of the 21 treadmills at this 24 Hour location had a six-foot safety clearance. Neuman concluded that 24 Hour’s act of placing other exercise equipment within the six-foot safety zone increased the risk of injury to persons using the treadmills.

Dr. James P. Dickens assessed Etelvina’s injuries, her medical records, and Neuman’s findings, and he determined that Etelvina fell backward while using the treadmill and “struck her head, fracturing the right occipital bone and right temporal bone.” Dr. Dickens noted that while the gym floor is covered with shock-absorbing material, there was a leg exercise machine with an exposed steel foot that was approximately three feet 10 inches behind the treadmill’s moving belt. Dr. Dickens opined that it was unlikely that Etelvina would have suffered the skull fractures had her head landed on the shock-absorbing floor [***8] coverings behind the treadmill and she likely hit her head on the leg machine. Additionally, Barton Waldon, a certified personal fitness trainer, opined that it is foreseeable that treadmill users occasionally trip, stumble, or fall off treadmills. 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.” Accordingly, Waldon opined that 24 Hour’s act of placing exercise equipment inside the safety zone “greatly increased the risk of injury to [Etelvina].”

In his deposition, Wilbourn, the membership manager for 24 Hour, said that he did not remember meeting Etelvina, although he identified himself as the employee [**233] who assisted her based on his signature on her membership agreement. Wilbourn testified that typically, when he encountered a potential customer who only spoke Spanish, his habit and custom was to have a Spanish-speaking employee handle the signup for that potential customer.

Motion for Summary Judgment

24 Hour filed a motion for summary judgment, or in the alternative, [***9] summary adjudication, asserting that plaintiffs’ claims were barred by the release. As for the loss of consortium cause of action, 24 Hour argued the claim was barred because it was derivative of plaintiffs’ negligence and premises liability causes of action. Plaintiffs opposed the motion, contending that the release was invalid because 24 Hour was grossly negligent and because 24 Hour obtained the release through fraud. However, plaintiffs did not specifically raise the argument that the release did not encompass [*552] Etelvina’s injury because it was not reasonably foreseeable to her at the time she signed the release that 24 Hour would intentionally increase her risk of injury.

Plaintiffs argued that due to 24 Hour’s fraud in obtaining Etelvina’s signature on the release, the release was ineffective. Plaintiffs further argued that the holding in Randas v. YMCA of Metropolitan Los Angeles (1993) 17 Cal.App.4th 158, 163 [21 Cal. Rptr. 2d 245] (Randas), does not apply here, because in this case, unlike in Randas, there was overreaching and fraud. The court inquired how Etelvina could know that Wilbourn misrepresented the nature of the release if she could not understand English. Plaintiffs’ counsel replied that Wilbourn communicated with her about the purported contents of the membership [***10] agreement through gesturing and pointing at the numbers on the computer screen. The court then inquired about the gross negligence exception to enforcing releases, pointing out that plaintiffs did not specifically allege a cause of action for gross negligence in their complaint. Plaintiffs responded that under California law, there is not a distinct cause of action for gross negligence and alleging general negligence suffices.³ Plaintiffs also contended that the question of gross negligence is a question of fact to be resolved by the jury rather than a matter of law to be resolved on summary judgment. The court questioned whether there was an industry standard on the appropriate safety clearance behind treadmills. Plaintiffs contended that the industry standard is evidenced in the manufacturer’s directions and Waldon’s declaration. The court expressed concern that Waldon’s “assumption is predicated upon the fact that she was on the treadmill. If you assume she was not on the treadmill, and we don’t have any tissue or hair or blood on a piece of equipment that would allow us to pinpoint where it is, we can’t really know what was happening at the time of the accident.” The court indicated [***11] that while that circumstance did not necessarily mean defendant should prevail, it was something for the court to consider. Plaintiffs’ counsel responded that the court identified a factual dispute in the case for a jury to decide.

3 24 Hour does not make a contrary argument on appeal. We agree with plaintiffs that [HN2] California does not recognize a distinct common law cause of action for gross negligence apart from negligence. (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 779-780 [62 Cal. Rptr. 3d 527, 161 P.3d 1095] (Santa Barbara); Continental Ins. Co. v. American Protection Industries (1987) 197 Cal.App.3d 322, 329-330 [242 Cal. Rptr. 784].) As a degree of negligence, “[g]ross negligence is pleaded by alleging the traditional elements of negligence: duty, breach, causation, and damages.” (Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072, 1082 [122 Cal. Rptr. 3d 22] (Rosencrans).)

[**234] During oral argument in the trial court, 24 Hour focused on the question of whether there was evidence of gross negligence, claiming it was impossible to detect the cause of plaintiffs’ injuries because she could not remember what happened. The trial court observed that this might be “a question of [*553] proof at trial.” The court then asked defense counsel why Etelvina’s testimony that Wilbourn misrepresented the content of the release would not create a factual issue for trial. Defense counsel responded that there was no evidence of “an affirmative act to deceive.” The court took the matter [***12] under submission.

The trial court granted 24 Hour’s motion. In its ruling, the court wrote that plaintiffs failed to present any evidence that Wilbourn “made any affirmative representations that led [Etelvina] to believe she was signing something other than what the agreement, on its face, purported to be.” The court further wrote that “[t]he fact that [Etelvina] elected to sign the agreement without understanding all of its terms cannot be considered the fault of [24 Hour].” With respect to the gross negligence argument, the court was persuaded by 24 Hour’s argument that, as a matter of law, a space of three to four feet as opposed to the recommended six-foot safety zone cannot constitute gross negligence, because “it does not reflect an ‘extreme departure from the ordinary standard of conduct.'” The court reasoned that 24 Hour’s “placement of the treadmill constitutes at most, ordinary negligence.” Consequently, the court ruled that plaintiffs “failed to demonstrate a triable issue of material fact with regard to the enforceability of the release.”

DISCUSSION

I. Standards of Review

[HN3] “A trial court properly grants summary judgment where no triable issue of material fact exists and the moving [***13] party is entitled to judgment as a matter of law.” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476 [110 Cal. Rptr. 2d 370, 28 P.3d 116] (Merrill), citing Code Civ. Proc., § 437c, subd. (c).) “[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 and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 [107 Cal. Rptr. 2d 841, 24 P.3d 493], fn. omitted (Aguilar).) 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. (Doe v. California Lutheran High School Assn. (2009) 170 Cal.App.4th 828, 834 [88 Cal. Rptr. 3d 475], citing Aguilar, supra, 25 Cal.4th at p. 849.) If the trial court finds that no triable issue of fact exists, it then has the duty to determine the issue of law. (California School of Culinary Arts v. Lujan (2003) 112 Cal.App.4th 16, 22 [4 Cal. Rptr. 3d 785].)

[HN4] On appeal, we review the trial court’s decision de novo. (Merrill, supra, 26 Cal.4th at p. 476.) We independently review the papers supporting and [*554] opposing the motion, considering all the evidence offered in connection with the motion and any inferences that the evidence reasonably supports, applying the same rules and standards as the trial court. (Ibid.) We view the evidence in the light most favorable to plaintiffs as the losing parties. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768-769 [107 Cal. Rptr. 2d 617, 23 P.3d 1143].) In liberally construing the evidence [**235] in favor of the party opposing the motion, we resolve [***14] all doubts concerning the evidence in favor of the opponent. (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460 [30 Cal. Rptr. 3d 797, 115 P.3d 77].)

II. Gross Negligence

A. The Parties’ Contentions

24 Hour contends it met its burden of showing that plaintiffs could not establish the duty element of their negligence cause of action by producing a valid release and the burden thus shifted to plaintiffs to show a triable issue of material fact. (Cf. Aguilar, supra, 25 Cal.4th at p. 849.) 24 Hour contends that plaintiffs failed to meet this burden and, accordingly, summary judgment was appropriate. Conversely, plaintiffs contend that there are triable issues of fact regarding the question of whether 24 Hour’s conduct constituted gross negligence, which would preclude 24 Hour’s reliance on the release to absolve it from liability. 24 Hour responds that the question of gross negligence was properly decided as a matter of law because plaintiffs’ allegation of gross negligence was unsupported in their summary judgment pleadings. Viewing the evidence in a light most favorable to plaintiffs, liberally construing that evidence and resolving all doubts in their favor, we disagree with 24 Hour.

B. Analysis

(1) ” [HN5] While often referred to as a defense, a release of future liability is more appropriately characterized as an express [***15] assumption of the risk that negates the defendant’s duty of care, an element of the plaintiff’s case. ‘”… The result is that the defendant is relieved of legal duty to the plaintiff; and being under no duty, he cannot be charged with negligence.” [Citation.]'” (Eriksson v. Nunnink (2015) 233 Cal.App.4th 708, 719 [183 Cal. Rptr. 3d 234] (Eriksson II).) In a summary judgment motion, the defendant bears the burden of establishing the validity of a release “as applied to the case at hand.” (Santa Barbara, supra, 41 Cal.4th at p. 780, fn. 58; see Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 856 [120 Cal. Rptr. 3d 90] (Eriksson I).)

[HN6] A release cannot absolve a party from liability for gross negligence. (Santa Barbara, supra, 41 Cal.4th at pp. 750-751, 776-777.) In Santa Barbara, our [*555] high court reasoned that “the distinction between ‘ordinary and gross negligence’ reflects ‘a rule of policy’ that harsher legal consequences should flow when negligence is aggravated instead of merely ordinary.” (Id. at p. 776, quoting Donnelly v. Southern Pacific Co. (1941) 18 Cal.2d 863, 871 [118 P.2d 465].) A liability release, “to the extent it purports to release liability for future gross negligence, violates public policy and is unenforceable.” (Santa Barbara, at p. 751.)

(2) The issue we must determine here is whether, with all facts and inferences construed in plaintiffs’ favor, the conduct shown by plaintiffs’ evidence could be found to constitute gross negligence. If so, then it is a question of fact for the jury to determine whether the [***16] release in this case was unenforceable for that reason. As our high court has noted, [HN7] whether conduct constitutes gross negligence is generally a question of fact, depending on the nature of the act and the surrounding circumstances shown by the evidence. (Santa Barbara, supra, 41 Cal.4th at pp. 767, 781 [reasoning that whether the evidence showed lack of care sufficient to constitute gross negligence was a triable issue of fact [**236] in that case].) The Courts of Appeal have followed suit, holding that generally, [HN8] it is a triable issue of fact whether a defendant’s lack of care constitutes gross negligence. (Decker v. City of Imperial Beach (1989) 209 Cal.App.3d 349, 358 [257 Cal. Rptr. 356] (Decker).) And when reviewing summary judgment based on the absence of a triable issue of fact as to gross negligence, we must resolve every reasonable doubt in favor of the plaintiffs. (Rosencrans, supra, 192 Cal.App.4th at p. 1088.)

“‘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. [Citation.] [¶] [HN9] ‘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.'”‘” (Santa Barbara, supra, 41 Cal.4th at pp. 753-754; see Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1185-1186 [7 Cal. Rptr. 3d 552, 80 P.3d 656] (Eastburn).)

In [***17] Santa Barbara, a developmentally disabled child attended a special summer camp for disabled children run by the city. (Santa Barbara, supra, 41 Cal.4th at pp. 750-753.) Because she had frequent seizures, the child was assigned a counselor to monitor her closely. (Id. at p. 752.) However, when her counselor momentarily turned her attention away from the child, who was at that time swimming toward the side of the pool, the child suffered a seizure and drowned. (Id. at p. 753.) The city contended that a release signed by the child’s mother had absolved the city of liability for any negligence. (Id. at pp. 750, 753.) On appeal, our high court held that the family’s gross [*556] negligence claim was not barred by the release because an agreement purporting to protect the releasee from liability for conduct rising to the level of gross negligence is against public policy. (Id. at pp. 770-777.)

In Rosencrans, where the court concluded there was a question of fact regarding gross negligence, the showing was similar to the showing in the instant case. In that case, a motorcyclist was injured during motocross practice.⁴ (Rosencrans, supra, 192 Cal.App.4th at pp. 1077, 1083.) The plaintiffs presented two pieces of evidence in opposition to the defendant’s summary judgment motion, indicating that there was an industry standard to provide caution flaggers [***18] on motocross tracks: (1) the “‘Brett Downey Safety Foundation Instructional Manual for Caution Flaggers,'” which provided that caution flaggers should be at their stations at all times while motorcyclists are on the course (id. at p. 1086) and (2) a motocross safety expert’s declaration that “the common practice for motocross tracks is to have caution flaggers at their assigned posts at all times …” (ibid.). The court held that because “it is standard practice in the industry to have caution flaggers on their platforms at all times … ,” the defendant’s failure to provide a caution flagger raised a triable issue of material fact on the question of gross negligence. (Id. at pp. 1081, 1086-1087.)

4 “Motocross is a sport in which people ride motorcycles and perform jumps off of ramps, while in a setting filled with dust and other people on motorcycles.” (Rosencrans, supra, 192 Cal.App.4th at p. 1083.)

[**237] 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. Plaintiffs, on the other [***19] hand, presented three pieces of evidence indicating a possible industry standard on treadmill safety zones: (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” (italics added); (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].” This evidence is similar to the evidence presented in Rosencrans. While Waldon did not expressly use the words “common practice” or [*557] “industry standard,” such is an inference that his declaration reasonably [***20] supports, particularly when viewed in tandem with the manufacturer’s safety directions.

(3) 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. Accordingly, plaintiffs created a triable issue of fact as to whether the failure to provide the minimum six-foot safety zone constituted an extreme departure from the ordinary standard of conduct.

While the issue of whether there has been gross negligence is generally a triable issue of fact, we recognize that such is not always the case. (See Decker, supra, 209 Cal.App.3d at p. 358.) For example, in a recent case involving 24 Hour, the Court of Appeal affirmed summary judgment grounded in part on the trial court’s determination that there was no triable issue of fact as to gross negligence. (Grebing v. 24 Hour Fitness USA, Inc. (2015) 234 Cal.App.4th 631, 639 [184 Cal. Rptr. 3d 155] (Grebing).) The contrast to our [***21] case supports our conclusion that, looking at the evidence in a light most favorable to plaintiffs, there is a triable issue of fact as to gross negligence in this case.

In Grebing, the plaintiff, who had twice signed 24 Hour’s release, was injured using a low row machine, when a clip failed causing a handlebar to break free from the cable and strike him in the forehead. (Grebing, supra, 234 Cal.App.4th at p. 634.) The evidence disclosed that the clip was the wrong clip, broken, or not working for the machine on which the plaintiff was exercising. (Id. at p. 635.) Some machines in the facility were missing clips and apparently members moved clips to other machines. Fifteen minutes before the plaintiff’s injury, another member reported [**238] that a different machine had a crooked clip. (Ibid.) The court held that to the extent the plaintiff was claiming 24 Hour should have inspected and replaced broken or improper clips on all machines within the 15 minutes after the other member’s complaint, that claim was insufficient to raise a triable issue of gross negligence. (Id. at p. 639.) Further, the court noted that “it is undisputed that 24 Hour took several measures to ensure that its exercise equipment and facility were well maintained. For example, it hired [***22] a facilities technician whose job was to conduct a daily inspection of the facility and perform preventative maintenance. If the facilities technician was unavailable, 24 Hour had a practice of requiring other staff members to conduct the inspection and perform any required maintenance.” (Ibid.) The Grebing court [*558] concluded, “In view of these measures, 24 Hour’s conduct cannot reasonably be regarded as demonstrating a want of even scant care or an extreme departure from the ordinary standard of conduct.” (Ibid.)

Here, unlike in Grebing where there was no notice, 24 Hour knew it was violating the manufacturer’s express safety directions when it deliberately arranged the gym equipment without providing a six-foot safety zone for the treadmills. 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. And unlike in Grebing, where 24 Hour acted reasonably by conducting daily equipment inspections, there were no mitigation measures that would have prevented the injury plaintiffs alleged occurred here. We are not persuaded by 24 Hour’s argument that because it provided shock-absorbing flooring materials, [***23] it exhibited “some care” and a jury would be precluded from finding gross negligence. A shock-absorbing floor makes little difference when it is covered with gym equipment upon which members could fall and severely injure themselves. Thus, we cannot agree that this purported mitigation measure precludes a jury finding of gross negligence.

In reaching our conclusion, we also reject 24 Hour’s argument, as adopted by the trial court, that “the provision of three to four feet of space as opposed to the recommended six feet cannot, as a matter of law, constitute gross negligence as it does not reflect ‘an extreme departure from the ordinary standard of conduct.'” The misdirected focus on the two-to-three-foot difference between 24 Hour’s spacing and the recommended minimum spacing impliedly suggests that such difference was negligible and not “an extreme departure.” However, when one thinks of the minimum safety zone recommended by the treadmill manufacturer in terms of the height of adult human beings and the high likelihood of a person falling off a treadmill impacting nearby equipment as close as three feet, it seems clear that the reduced zone established by 24 Hour here can hardly be [***24] considered a “safety” zone at all. Accordingly, it strikes us that a departure of two to three feet from the recommended minimum six-foot safety zone makes a great difference under these circumstances. Without any expert testimony indicating otherwise and in light of plaintiffs’ expert’s declaration corroborating the manufacturer’s directions and the financial motivation that can be inferred from the evidence, we cannot agree that as a matter of law, the spacing of the machines demonstrates at least scant care and is not an extreme departure from the ordinary standard of conduct.

24 Hour contends that if the facts in several cases it cites do not amount to gross negligence, then the facts in this case certainly do not. In our view, 24 Hour’s cited cases are distinguishable. [*559] [**239]

24 Hour cites Decker as a comparable case on gross negligence. In Decker, a surfer became entangled in the tether of a submerged lobster trap and drowned after the city pursued an antiquated surf rescue method, the “lifeline rescue method.” (Decker, supra, 209 Cal.App.3d at pp. 352-353, 360.) There was evidence that the rescue personnel arrived promptly and made diligent efforts to attempt to rescue the surfer both with the sheriff’s dive team and with a helicopter, [***25] but the dive team used a rescue method disfavored for surf rescues. (Id. at pp. 360-361, 363.) The court reasoned that this evidence “could support a finding that use of the lifeline rescue method is a disfavored surf rescue method and would not be used by an experienced, trained surf rescuer but it does not support a finding the sheriff’s dive team was grossly negligent for having used this method given their lack of training or experience in surf rescue.” (Id. at p. 360, italics added.) The Decker court also noted that the plaintiff did not contest the validity of the sheriff’s first rescue attempt with the helicopter, which also failed. (Id. at pp. 360-361.) The failure to train for and use a specialized rescue method during an otherwise diligent rescue effort that included another undisputed rescue method is very different from 24 Hour’s failure to follow the treadmill manufacturer’s explicit directions to maintain a minimum six-foot safety zone. The conduct in Decker was, at best, passive negligence by people who did not know any better and did not create or even increase the risk of injury whereas in our case defendant’s conduct actively created or increased the risk of injury to treadmill users by deliberately setting up the [***26] equipment in a dangerous manner.

In DeVito v. State of California (1988) 202 Cal.App.3d 264 [248 Cal. Rptr. 330] (DeVito), another case upon which 24 Hour relies, a hiker swung from a firehose hung over a tree limb in a mountain canyon on public land, lost her grip, and fell down a steep slope, sustaining injuries. The appellate court affirmed dismissal of her complaint against the state on demurrer, primarily focusing on a statute, Government Code section 831.7, which provides “a public entity is not liable to ‘any person who participates in a hazardous recreational activity … for any … injury … arising out of that … activity.'” (DeVito, at pp. 267, 270.) The court noted that under the statute, “‘tree rope swinging'” is listed as one such hazardous recreational activity, and the primary issue on appeal was one of interpreting this statute. (Ibid.) The court, in a single, short paragraph, only briefly discussed the plaintiff’s secondary argument that the state engaged in gross negligence, concluding in summary fashion that no facts alleged in the complaint supported the allegation of gross negligence. (Id. at p. 272.)

DeVito is distinguishable on several bases. First, in this case, plaintiffs here did allege facts in their summary judgment opposition which support a finding of gross negligence, as discussed [***27] ante. Second, as in Decker, the plaintiff in DeVito did not allege facts indicating that the defendant actively [*560] created or increased the risk of harm. Instead, the plaintiff alleged that the state failed to “‘guard or warn of [a] known dangerous condition,'” which would not ordinarily rise to the level of gross negligence. (DeVito, supra, 202 Cal.App.3d at pp. 267, 272.) Third, and significantly, the court’s opinion in DeVito focused on the plaintiff’s failure “to guard or warn” argument because the gross negligence argument was barely raised and not supported in the plaintiff’s argument on appeal. (See id. at p. 272.) [**240] The court noted, “We could, but choose not to, ignore this contention since it is set forth in a single sentence of appellant’s opening brief, unsupported by either argument or authority.” (Id. at fn. 7.) Accordingly, DeVito provides little analysis of the gross negligence exception to liability releases and equally little support to 24 Hour’s position.

A third case cited by 24 Hour is even less helpful. Eastburn, supra, 31 Cal.4th 1175, involved a claim of gross negligence based on a 911 operator putting the plaintiff on hold. An injured child and her parents sued, contending that the child suffered injuries because of the failure to provide prompt emergency response to [***28] the 911 call. (Id. at p. 1179.) Our high court affirmed the trial court’s finding that the plaintiffs would be unable to allege gross negligence to amend their defective complaint. (Id. at pp. 1179, 1185-1186.) On this point, the court wrote: “Plaintiffs’ briefs before the Court of Appeal made the additional allegation that the 911 dispatcher put them ‘on hold’ during their telephone conversation, but such conduct would hardly amount to gross negligence or bad faith. The case law has defined gross negligence as ‘”the want of even scant care or an extreme departure from the ordinary standard of conduct.”‘ [Citations.] Nothing in plaintiffs’ pleadings or appellate briefs points to such extreme conduct. Accordingly, the trial court properly sustained the demurrer without leave to amend.” (Id. at pp. 1185-1186.) Eastburn provides no factual analogue suitable for comparison to our case.

At oral argument, in addition to Grebing, supra, 234 Cal.App.4th 631, 24 Hour cited two other recent cases, which we also find distinguishable. In Honeycutt v. Meridian Sports Club, LLC (2014) 231 Cal.App.4th 251 [179 Cal. Rptr. 3d 473], the plaintiff sued a sports club for a knee injury she sustained while attempting a kicking maneuver in a kickboxing class taught by a personal trainer. (Id. at pp. 254-255.) The trainer attempted to correct the plaintiff’s form by holding her kicking leg while he instructed [***29] her how to pivot her planted leg. (Ibid.) To support her claim that the defendant was grossly negligent, the plaintiff presented an expert declaration asserting that “an instructor should not touch the student, and instead should demonstrate and verbalize the maneuver and regress to an easier maneuver if the kick was too difficult for the student’s skills.” (Id. at p. 259.) On appeal from summary judgment in the defendant’s favor, the Court of Appeal reasoned that there was no triable issue of fact as to gross negligence because “[a] mere [*561] difference of opinion as to how a student should be instructed does not constitute evidence of gross negligence.” (Id. at p. 260.) This strikes us as a quintessential case of, at most, ordinary negligence. Unlike our case, there was no evidence that the defendant violated something like an industry standard, or manufacturer’s safety directions or otherwise made an extreme departure from the ordinary standard of conduct.

Defendant also cited Eriksson II, supra, 233 Cal.App.4th 708 at oral argument and ignored Eriksson I. In Eriksson I, the plaintiffs’ daughter was killed in an equestrian mishap. The Court of Appeal reviewed the trial court’s ruling granting summary judgment. Looking at the evidence [***30] in a light most favorable to the plaintiffs, the court concluded that the plaintiffs produced evidence sufficient to support a jury finding [**241] that a riding coach was grossly negligent in persuading the mother to allow her daughter to compete in an equestrian competition on a recently injured and unfit horse. (Eriksson I, supra, 191 Cal.App.4th at p. 857.) Following a remand for trial, the trial court entered judgment after the plaintiffs’ case-in-chief. The trial court found, based on the trial evidence, that the defendant’s conduct did not rise to the level of gross negligence. (Eriksson II, at p. 718.) On review, the Court of Appeal reasoned that because the defendant “established the validity of the release in the sense that it was binding and enforceable against [the plaintiffs],” the plaintiffs then had the burden of establishing that the defendant was grossly negligent in their case-in-chief at trial. (Id. at pp. 733-734.) Based on this procedural posture, the Eriksson II court applied a deferential standard of review (as opposed to the de novo review of the summary judgment in Eriksson I). The court “review[ed] the record to determine whether the evidence establishe[d], as a matter of law” that the defendant was grossly negligent. (Id. at p. 734, italics added.) The court determined [***31] that the plaintiffs failed to meet this burden at trial; however, it did not publish the portion of the opinion analyzing why the trial evidence failed to establish that the defendant was grossly negligent as a matter of law. (Ibid.) Accordingly, the case is of little utility to 24 Hour. In any event, due to the vastly different procedural posture and deferential standard of review, Eriksson II is distinguishable from our case. Indeed, the court in Eriksson I, citing Santa Barbara, noted that in the context of a summary judgment motion, the defendant bears the burden of establishing the validity of a release “as applied to the case at hand.” (Eriksson I, at p. 856, italics omitted, quoting Santa Barbara, supra, 41 Cal.4th at p. 780, fn. 58.) And as we have noted, our high court held that [HN10] a release from liability for gross negligence is invalid and unenforceable. (Santa Barbara, at pp. 750-751.) Thus, the opinion in Eriksson I is far more instructive where the Court of Appeal reversed the summary judgment in the defendant’s favor, reasoning that the plaintiffs showed there were material issues of fact as to whether the defendant was grossly negligent. (Eriksson I, at p. 857.) [*562]

In the trial court, 24 Hour did not explicitly dispute plaintiffs’ separate statement of facts in [***32] its moving papers; instead it opted to object to most of plaintiffs’ facts instead. On appeal, 24 Hour repeatedly disputed plaintiffs’ factual allegations in its brief. Specifically, defendant makes much of the fact that Etelvina cannot remember her fall, contending there is no “evidence that she actually fell backwards off of a moving treadmill.” However, this argument ignores plaintiffs’ expert declarations opining what likely happened to Etelvina based on her injuries, the location of her fall, and accident reconstruction. Although 24 Hour’s factual presentation in its briefing does not view the facts in the light most favorable to plaintiffs, we must do so. And while the experts’ opinions may or may not be credible at trial, this is an inherently factual issue for a jury to decide.⁵

5 24 Hour notes its objections to plaintiffs’ evidence and contends that these expert opinions are inadmissible. However, the trial court overruled 24 Hour’s evidentiary objections, and 24 Hour does not challenge this ruling on appeal. Accordingly, this argument is forfeited. (Salehi v. Surfside III Condominium Owners Assn. (2011) 200 Cal.App.4th 1146, 1161-1162 [132 Cal. Rptr. 3d 886].)

[**242] We emphasize that “we are not passing judgment upon the merits of plaintiffs’ allegations; rather, we are viewing the allegations [***33] in the light most favorable to plaintiffs, as required by the law.” (Rosencrans, supra, 192 Cal.App.4th at p. 1089.) A jury may very well conclude that Etelvina was not injured in the manner alleged, that there was no industry standard on treadmill safety clearances, and that 24 Hour’s conduct did not rise to the level of gross negligence, but we are unwilling to reach these conclusions as a matter of law based on the record before us. In a case involving disputes of fact such as how and where Etelvina fell and whether there is an industry standard on treadmill safety zones, summary judgment is a “drastic remedy.” (Mateel Environmental Justice Foundation v. Edmund A. Gray Co. (2003) 115 Cal.App.4th 8, 17 [9 Cal. Rptr. 3d 486].) Accordingly, we conclude that the trial court erred in ruling that plaintiffs did not present a triable issue of fact regarding whether 24 Hour engaged in gross negligence.

III. Fraud and Misrepresentation

A. The Parties’ Contentions

Plaintiffs contend that there are triable issues of fact as to whether 24 Hour obtained Etelvina’s signature on the liability release through fraud and misrepresentation, which would invalidate the release as to all of plaintiffs’ theories of recovery. In the trial court, plaintiffs presented the declarations of Etelvina and her sister, another 24 Hour member, testifying that before they [***34] signed their respective releases, the 24 Hour employees misrepresented and concealed the contents of the agreements. Specifically, Etelvina declared that [*563] Wilbourn gestured and pointed to represent that the agreement was to pay a certain amount of money per month for the gym membership and that she relied on that representation when she signed the release. However, the trial court ruled that plaintiffs presented “no evidence that Mr. Wilbourn made any affirmative representations that led [Etelvina] to believe she was signing something other than what the agreement, on its face, purported to be.”

On appeal, plaintiffs argue that 24 Hour failed to conclusively establish the enforceability of the release because they produced evidence that Wilbourn did not act in good faith and made affirmative misrepresentations to Etelvina through nonverbal gestures and by pointing to the monthly payment amount on his computer screen. Additionally, plaintiffs point out Wilbourn violated his own policy as the membership manager of referring Spanish-speaking customers to sign up with Spanish-speaking employees.⁶ 24 Hour responds that it owed no duty to translate or explain the agreement to Etelvina, and [***35] the material facts alleged by plaintiffs do not raise a triable issue of whether Wilbourn misrepresented the contents of the agreement.

6 Plaintiffs repeatedly refer to this as a 24 Hour policy, but citations to Wilbourn’s deposition reveal that the questions directed toward him and his answers related to what he did and his habit and custom.

B. Analysis

(4) ” [HN11] A release may negate the duty element of a negligence action.” (Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351, 1356 [129 Cal. Rptr. 2d 197].) 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 [**243] applied to the case at hand.” (Santa Barbara, supra, 41 Cal.4th at p. 780, fn. 58; see Eriksson I, supra, 191 Cal.App.4th at p. 856.)

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. (Randas, supra, 17 Cal.App.4th at p. 163.) However, a release is invalid when it is procured by misrepresentation, overreaching, deception, or fraud. (Ibid.) “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 [***36] intended by the releaser.” (Casey v. Proctor (1963) 59 Cal.2d 97, 103 [28 Cal. Rptr. 307, 378 P.2d 579], fn. omitted.) “In cases providing the opportunity for overreaching, the releasee has a duty to act in good faith and the releaser must have a full understanding of his legal rights. [Citations.] Furthermore, it is the province of the jury to determine whether the circumstances afforded the opportunity for overreaching, whether the releasee [*564] engaged in overreaching and whether the releaser was misled. [Citation.]” (Frusetta v. Hauben (1990) 217 Cal.App.3d 551, 558 [266 Cal. Rptr. 62] (Frusetta).) 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. (Id. at pp. 559-560.)

(5) 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. (See Seeger v. Odell (1941) 18 Cal.2d 409, 414 [115 P.2d 977] [one [HN12] who has been induced by fraudulent misrepresentations to sign agreement is entitled to have agreement set aside]; Blankenheim v. E. F. Hutton & Co. (1990) 217 Cal.App.3d 1463, 1474 [266 Cal. Rptr. 593] [same]; see [***37] also American T. Co. v. California etc. Ins. Co. (1940) 15 Cal.2d 42, 65 [98 P.2d 497] [“Regardless of whether one is under a duty to speak or disclose facts, one who does speak must speak the whole truth, and not by partial suppression or concealment make the utterance untruthful and misleading.”].) Thus, we must determine whether, with all facts and inferences construed in plaintiffs’ favor, the conduct shown by plaintiffs’ evidence could be found to constitute fraud. If so, then it is a question of fact for the jury to determine whether the release in this case was ineffective.

In Frusetta, a personal injury case, the plaintiff asserted that an insurance adjuster who worked for Twentieth Century Insurance Company told her that a preprinted check was to be a partial payment for injuries she suffered in a car accident, and the adjuster represented to her that another payment would be forthcoming. (Frusetta, supra, 217 Cal.App.3d at p. 554.) The check included the words, “‘Bodily injury in full and final settlement.'” (Ibid.) The reverse of the check stated that if “‘”Full and Final Settlement” is printed on the front of the draft, endorsement of the draft constitutes a full Release of all claims known or unanticipated which the under-signed has or may hereafter have against the Payor … .'” (Ibid.) The plaintiff endorsed [***38] and cashed the check, and Twentieth [**244] Century claimed that by doing so, she released it from any further liability. (Id. at pp. 554-555.) The Frusetta court reasoned, “it is clearly possible that a jury might find the circumstances demonstrated fraud or overreaching on the part of Twentieth Century. If a jury accepted [the plaintiff’s] testimony a Twentieth Century adjuster stated to her the check was a partial settlement and the rest would be paid later, then it might be found Twentieth Century violated its duty to act in good faith.” (Id. at p. 558.) Accordingly, the court held there was a triable issue of fact as to whether “a [*565] fraud or misrepresentation … induced a party’s signing of a release ‘[where] it substantially contribute[d] to his decision to manifest his assent.'” (Id. at pp. 556-557.)

A recent Ninth Circuit case applying California law, Doe v. Gangland Productions, Inc. (9th Cir. 2013) 730 F.3d 946 (Gangland), is also instructive. There, the plaintiff sued two production companies for broadcasting a television documentary without concealing his identity. (Id. at pp. 951-952.) In an anti-SLAPP motion to strike the complaint, among other arguments, the defendants contended that the plaintiff’s claims were barred because he signed a release consenting to disclosure of his real identity in the broadcast [***39] and waiving all claims for liability. (Id. at pp. 957-958.) In order to overcome the anti-SLAPP motion, the plaintiff had to demonstrate a probability of prevailing on the merits of his claims. (Id. at p. 957.) In a declaration, the plaintiff stated that he was dyslexic, illiterate, and that he informed the Gangland producer who asked him to sign the release that he had “‘extreme difficulty reading.'” (Id. at p. 952.) The plaintiff also stated that “when he was provided the alleged release, [the producer] told him it was ‘just a receipt’ for his $300 payment for the interview. Because of these representations, [the plaintiff] did not ask his girlfriend to read out loud the document before he signed it.” (Id. at p. 958.) The court reasoned that the plaintiff “made a sufficient showing of fraud in the execution of the release, which, if true, would render the release void.” (Ibid.)

In reaching its conclusion, the court in Gangland cited Mairo v. Yellow Cab Co. (1929) 208 Cal. 350 [281 P. 66]. In Mairo, the California Supreme Court reviewed a directed verdict in the defendant’s favor, where the trial court concluded that the plaintiff had waived his rights by executing several releases. (Id. at pp. 351-352.) The plaintiff was an illiterate Russian immigrant who understood little spoken English. (Id. [***40] at p. 351.) He was injured after being hit by the defendant’s taxicab and during the course of his medical treatment, the defendant had him sign several releases in exchange for the payment of his medical treatment. (Id. at pp. 351-352.) The plaintiff asserted that the defendant misrepresented the true contents of the releases and that he believed they were merely a permit to operate on him and receipts. (Id. at p. 352.) The court held that if the true nature of the releases was “misrepresented to [the plaintiff] so that he did not know what he was really signing, they are, of course, void. But under the conflicting evidence here it is impossible to tell whether such was the fact. This also was an issue which should have gone to the jury and it was, therefore, erroneous for the trial court to direct said verdict for defendant.” (Ibid.; see Meyer v. Haas (1899) 126 Cal. 560, 562 [58 P. 1042] [holding that a release was void where the releaser could not read English and understood little spoken English, and the releasee “did not convey full information as to [the release’s] contents”].) [*566]

[**245] Defendant dismisses the application of Frusetta and other cases where there was “affirmative misrepresentation or fraud” regarding the nature or character of the document in question, [***41] because here there was no verbal misrepresentation. However, in our view, this is a distinction without a difference. 24 Hour contends that these nonverbal communications cannot, as a matter of law, amount to affirmative misrepresentations because Etelvina “could not reasonably have relied upon anything Mr. Wilbourn said” since he spoke a different language. 24 Hour’s argument implies that nonverbal communications cannot be misrepresentative or induce reasonable reliance. We reject this argument. While it may be less reasonable for a plaintiff to rely on nonverbal communications in a case where the parties speak the same language, in this case, gesturing was virtually the only form of communication between Wilbourn and Etelvina. It is undisputed that Etelvina did not speak English and Wilbourn did not speak Spanish. Further, Wilbourn knew Etelvina did not speak or read English. And he knew that Etelvina did not read the contract, including the terms setting forth the release, even though, as the membership manager, he must have known that the release says, “By signing below, you acknowledge and agree that you have read the foregoing …” provisions of the release. (Italics added.) Under [***42] these circumstances, already ripe for misrepresentation and overreaching, Wilbourn’s gestures and pointing may very well have misrepresented the nature of the document Etelvina signed. This is an inherently factual question for a jury to decide. (See Jordan v. Guerra (1943) 23 Cal.2d 469, 475 [144 P.2d 349] [“[I]t [HN13] is for the trier of the facts to determine what the plaintiff understood was covered by the writing and whether his understanding different from the writing was induced by the defendant.”].)

24 Hour relies heavily on Randas, supra, 17 Cal.App.4th 158, arguing that under Randas, a case involving a release signed by a person who did not speak English, it had no duty to translate or explain the membership agreement to Etelvina and that Etelvina had no one to blame but herself. Randas does not help 24 Hour because there was no claim of fraud or overreaching in that case and the releasee had no reason to think the releaser could not read the release. Indeed, the Randas court made a point of those circumstances, specifically noting, “Appellant made no claim of respondent’s fraud or overreaching. Nor did appellant claim that respondent had reason to suspect she did not or could not read the release she had signed and which in full captions above and below her signature stated: [***43] ‘I Have Read This Release.'” (Id. at p. 163.) Here, plaintiffs’ theory is fraud and overreaching. And it is clear that Wilbourn knew Etelvina could not and did not read the release.

Accordingly, we reverse the trial court’s ruling on this basis as well. [*567]

IV. Foreseeability That 24 Hour Would Intentionally Increase the Risk of Danger

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, plaintiffs did not pursue this argument below in either their opposition to the summary judgment motion or during oral argument on the motion. Additionally, plaintiffs did not allege that 24 Hour engaged in intentional conduct in their complaint or raise undisputed facts pertaining [**246] to this foreseeability theory in their separate statement of facts. Accordingly, we decline to consider this argument for the first time on appeal. (See Greenwich S.F., LLC v. Wong (2010) 190 Cal.App.4th 739, 767 [118 Cal. Rptr. 3d 531] [reasoning that [HN14] generally, theories not raised in the trial court cannot be asserted for the first time on appeal, particularly where it is unclear whether [***44] the theory raises a pure question of law].)

DISPOSITION

The judgment is reversed. 24 Hour shall pay plaintiffs’ costs on appeal. (See Cal. Rules of Court, rule 8.278(a)(1) & (5).)

Blease, Acting P. J., and Hull, J., concurred.

Federal Court in Texas upholds clause in release requiring plaintiff to pay defendants costs of defending against plaintiff’s claims.

Posted: October 19, 2015 | Author: Recreation Law | Filed under: Health Club, Minors, Youth, Children, Release (pre-injury contract not to sue), Texas | Tags: Attorney Fees, Costs, Day Care, Fees, Fitness Center, Gross negligence, Life Time Fitness, Negligent Misrepresentation, Premises Liability, Release, Texas | Leave a comment

Fitness contract included a release which included a clause stating the signor would pay the fitness companies defense costs. Court awarded those costs for defending against claims, which were dismissed by the court; Even though the plaintiff was successful in retaining two claims against the defendant.

State: Texas

Plaintiff: Chase McClure, Misha McClure

Defendant: Life Time Fitness, Inc.

Plaintiff Claims: negligence, gross negligence, common law and statutory premises liability, and negligent misrepresentation claims

Defendant Defenses: Release

Holding: For the Plaintiff and the Defendant

Year: 2014

This is an interesting case, obviously because it is outside the normal outdoor recreation arena and involves a fitness center with a day care. The plaintiff signed up for the defendant fitness center. She arrived one time with her two-year-old son and informed the defendant fitness center employee that it was his first there. She informed the plaintiff that she would place her son in with the younger children.

Later, the plaintiff was told that her son had been injured and that 911 had been called. The facts surrounding the injury are vague, other than the plaintiff arrived to see a defendant day care worker holding ice on the child’s ear. The child later received five stitches in his ear.

There were several issues concerning the service of process on the defendant and eventually a removal to the Federal Court who resolved the issues finding ineffective service against the defendant in the state court claims.

The defendant then moved for summary judgment based on release and its counterclaims against the plaintiff for breach of the Member Usage Agreement.

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

The court first tackled the release and how whether it was effective against the claims of the plaintiff. Under Texas law, a release must satisfy the Fair Notice requirement.

Fair notice requires (1) that a party seeking to enforce a release provision comply with the express negligence doctrine and (2) that the provision be conspicuous. The express negligence doctrine requires a party releasing potential claims against another party for its negligence to express that intent in conspicuous and unambiguous terms in the four corners of the agreement. Conspicuousness requires the releasing language to be written and formatted so that a reasonable person in the position of the person against whom the release is to operate would notice it.

The plaintiff admitted the release met the fair notice requirements but under Texas law, the release could not stop her gross negligence claims. The court agreed.

Texas cases holding that waivers of negligence claims do not give fair notice of an intent to waive gross negligence claims, and the cases holding that preinjury releases of gross negligence claims are contrary to public policy, this court holds that the Member Usage Agreement Ms. McClure signed did not release Life Time Fitness from liability for her gross negligence claims, including the premise’s liability claim based on the Recreational Use Statute, which requires proof of gross negligence.

The court also found that the release failed to release the defendant from the plaintiff’s premises liability claims based on the Texas Recreational Use statute. Premise’s liability claims are based on ownership of the land; although the release in question seemed to cover the issue? No reasoning was given by the court for this decision.

The release did bar the plaintiff’s claims for “for negligence, negligent misrepresentation, and common law premise’s liability.”

The court next went over the issues surrounding whether a release under Texas law would stop claims of minors. The court found Texas law does not allow a release signed by a parent to stop those claims. “A preinjury release executed by a minor child’s parent is not enforceable to release claims against a commercial enterprise for the minor child’s injuries.”

The next issue was whether there was enough evidence to support any claims of the plaintiff. Here was a case where the plaintiff was never able to determine how the child was injured. Consequently, the plaintiff could not prove or provide any evidence of any negligence claims.

The McClures have not identified any evidence of a misrepresentation Life Time Fitness made to the child on which he did or could have reasonably relied. Summary judgment is granted on the child’s negligent misrepresentation claim.

The defendant then asked for the remaining claims of the child to be dismissed because there was no evidence to support any allegations made by the child to support his claims.

The only evidence to support this claim was the plaintiff stated that any employee of the defendant had told the plaintiff here son had been injured in the play area designated for older children. This was sufficient to support this claim at this time. “Although the record is scant, it is sufficient to withstand summary judgment as to the child’s claims other than for negligent misrepresentation.”

The court then ruled on the counterclaim of the defendant. It seems like the motion was not answered by the plaintiff. The defendant then argued was a failure to deny, and they should be granted a default judgment. However, the court did not come to that same conclusion. The court then looked at the clause in the contract.

The clause in the release was entitled “Life Time’s Fees and Costs.”

This clause stated that if Ms. McClure asserted a negligence claim against Life Time Fitness, she would pay “all reasonable fees (including attorney’s fees), costs, and expenses incurred by Life Time (“Life Time’s Fees and Costs”) to defend (1) the Negligence Claim(s) and (2) all other Claims based on the same facts as the Negligence Claim(s).” Ms. McClure argues that she did not breach the Member Usage Agreement because she asserted claims for gross negligence.

Although the plaintiff was successful in two of her five claims, the court felt that she had breached the release and sued, therefore, the claims that were dismissed were enough to trigger fees and costs clause.

Life Time Fitness is entitled to the damages provided for in the Member Usage Agreement: the fees it reasonably incurred in defending solely against Ms. McClure’s claims for negligence, negligent misrepresentation, and common-law premises liability.

The court was specific in its ruling that the fees and costs to be paid by the plaintiff and awarded to the defendant were only the costs the defendant incurred in defending the three claims that were dismissed by the court.

Summary judgment is granted to Life Time Fitness on Ms. McClure’s claims for negligence, negligent misrepresentation, and common law premises liability to invitees. Summary judgment is denied on Ms. McClure’s claims for gross negligence and for premises liability under the Recreational Use Statute. Summary judgment is granted on the minor child’s negligent misrepresentation claim and otherwise denied. Life Time Fitness’s motion for summary judgment on its counterclaim is granted only for reasonable fees incurred in defending against Ms. McClure’s negligence, negligent misrepresentation, and common law premises liability claims, and is otherwise denied.

So the plaintiff was left with a gross negligence claim and a premises liability claim. Her son’s claim for negligent misrepresentation also survived, but barely.

So Now What?

Do Not Rely on this decision to believe that you can recover attorney fees when defending yourself in court when a release has been signed by the plaintiff. This is only the third time I have seen a case like this and there are 25 times more decisions denying these claims.

Most of these claims are struck down because the language is poor, and the case is similar to this forcing a parent to decide whether they should risk suing on behalf of their injured child. Other than this case, courts have uniformly denied those claims.

The two other cases I have found dealt with a skydiving where the plaintiff’s allegations were at a minimum quite wild and the other the plaintiff was an attorney. In both cases, it seemed the court found enough to hit the plaintiff with fees because the court did not like them.

You do not see any of the rancor or scorn in this case. It is a factual review of the facts, the release and a simple decision. You signed the agreement promising to pay if this happened, therefore, you must pay.

What do you think? Leave a comment.

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Mcclure, et al., v. Life Time Fitness, Inc., 2014 U.S. Dist. LEXIS 167483

Posted: October 18, 2015 | Author: Recreation Law | Filed under: Health Club, Legal Case, Minors, Youth, Children, Release (pre-injury contract not to sue), Texas | Tags: Day Care, Fitness Center, Life Time Fitness, Release, Texas | Leave a comment

Mcclure, et al., v. Life Time Fitness, Inc., 2014 U.S. Dist. LEXIS 167483

C. Mcclure, et al., Plaintiffs, vs. Life Time Fitness, Inc., Defendant.

CIVIL ACTION NO. H-13-1794

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, HOUSTON DIVISION

2014 U.S. Dist. LEXIS 167483

December 3, 2014, Decided

December 3, 2014, Filed

PRIOR HISTORY: McClure v. Life Time Fitness, Inc., 2014 U.S. Dist. LEXIS 25810 (S.D. Tex., Feb. 28, 2014)

COUNSEL: [*1] For Chase McClure, Misha McClure, Individually and as Guardian of Chase McClure, Plaintiffs: Brennen Dunn, LEAD ATTORNEY, Citizen Legal, PLLC, Houston, TX.

For Life Time Fitness, Inc., Defendant: John G Browning, Lewis Brisbois Bisgaard & Smith LLP, Dallas, TX.

JUDGES: Lee H. Rosenthal, United States District Judge.

OPINION BY: Lee H. Rosenthal

OPINION

MEMORANDUM AND OPINION

This is a personal injury suit filed by Misha McClure for herself and on behalf of her minor son, who was injured in July 2012 in the childcare area at a Life Time Fitness center in Humble, Texas. Ms. McClure asserted negligence, gross negligence, common law and statutory premises liability, and negligent misrepresentation claims. Life Time Fitness moved for summary judgment, arguing that the claims are barred by a release Ms. McClure signed when she joined the center. (Docket Entry No. 28).

Based on the pleadings, the motion and response, the parties’ submissions, and the applicable law, this court grants the motion in part and denies it in part. Specifically, the court grants Life Time Fitness’s motion for summary judgment dismissing Ms. McClure’s claims for negligence, common-law premises liability, and negligent misrepresentation, and denies [*2] the motion as to her gross negligence and statutory premises liability claims. The court grants Life Time Fitness’s summary judgment motion as to the minor child’s negligent misrepresentation claim and otherwise denies the motion. Finally, the court grants Life Time Fitness’s motion for summary judgment on its counterclaim for fees incurred in defending against Ms. McClure’s claims other than for gross negligence and for statutory premises liability, and otherwise denies the motion. The reasons for these rulings are explained below.

I. Background

Ms. McClure went to the Life Time Fitness center in Humble on July 28, 2012 for a personal-training session. She left her two-year-old son at the childcare area in the center, telling a childcare employee her son’s age and explaining that it was his first time there. The employee told Ms. McClure that her son would be in an area for younger children. Thirty minutes later, a Life Time Fitness manager interrupted Ms. McClure’s training session to tell her that her son had been in an accident in the older children’s play area and that 911 had been called. Ms. McClure found her son with a Life Time Fitness childcare manager who was holding an ice [*3] pack on the child’s ear. When the ice pack was removed, Ms. McClure saw that the child was missing a piece of his ear. He received five stitches.

When Ms. McClure joined Life Time Fitness, she signed a Member Usage Agreement. The Member Usage Agreement contained sections headed “ASSUMPTION OF RISK” and “WAIVER OF LIABILITY.” The relevant parts read as follows:

ASSUMPTION OF RISK. I understand that there are inherent dangers, hazards, and risks of injury or damage in the use of Life Time’s premises, facilities, equipment, services, activities or products, whether available through membership dues or a separate fee.

I understand that the Risk and Injuries in the Use of Life Time Premises and Services (collectively, “Risks of Injury”) may be caused, in whole or in part, by the NEGLIGENCE OF LIFE TIME, me, Minor Member(s), Other Member(s), Guest(s) and/or other persons. [I] FULLY UNDERSTAND, AND VOLUNTARILY AND WILLINGLY ASSUME, THE RISKS OF INJURY.

WAIVER OF LIABILITY. On behalf of myself and my spouse/partner, children/Minor Members, Other Members, Guests, parents, guardians, heirs, next of kin, personal representatives, heirs and assigns, I hereby voluntarily and forever release and discharge [*4] Life Time from, covenant and agree not to sue Life Time for, and waive, any claims, demands, actions, causes of action, debts, damages, losses, costs, fees, expenses or any other alleged liabilities or obligations of any kind or nature, whether known or unknown (collectively, “Claims”) for any Injuries to me, Minor Member(s), Other Member(s), or Guest(s) in the Use of Life Time Premises and Services which arise out of, result from, or are caused by any NEGLIGENCE OF LIFE TIME, me, any Minor Member(s), any Other Member(s), any Guest(s), and/or any other person . . . (collectively, “Negligence Claims”).

A. Negligence Claims. I understand that Negligence Claims include but are not limited to Life Time’s (1) negligent design, construction (including renovation and alteration), repair maintenance, operation, supervision, monitoring, or provision of Life Time Premises and Services; (2) negligent failure to warn of or remove a hazardous, unsafe, dangerous or defective condition; (3) negligent failure to provide or keep premises in a reasonably safe condition; (4) negligent provision or failure to provide emergency care; (5) negligent provision of services; and (6) negligent hiring, selection, [*5] training, instruction, certification, supervision or retention of employees, independent contractors or volunteers; or (7) other negligent act(s) or omission(s).

B. Life Time’s Fees and Costs. I specifically agree that, if I (on my own behalf or on behalf of another, including an estate) assert a Negligence Claim against Life Time and/or breach my agreement not to sue Life Time, I will pay all reasonable fees (including attorneys’ fees), costs and expenses incurred by Life Time (“Life Time’s Fees and Costs”) to defend (1) the Negligence Claim(s) and (2) all other Claims based on the same facts as the Negligence Claim(s).

The agreement also contained a section headed “PARENT OR GUARDIAN AGREEMENT.” This section stated:

If I am the parent or legal guardian of a Minor Member, I acknowledge and represent to Life Time that I have the right and authority to make decisions concerning the care, custody and control of each Minor Member, including but not limited to the right and authority to execute this MUA on the Minor Member’s behalf. By signing this MUA, I am binding each of my Minor Member(s) to its terms, including but not limited to the ASSUMPTION OF RISK [and] WAIVER OF LIABILITY . . . [*6] provisions.

The following text appeared directly above the signature line:

I HAVE READ, UNDERSTOOD, RECEIVED A COPY OF, AND AGREE TO ALL TERMS AND CONDITIONS OF THIS MUA, INCLUDING SPECIFICALLY THE ASSUMPTION OF RISK, WAIVER OF LIABILITY AND DEFENSE AND INDEMNIFICATION PROVISIONS UNDER WHICH I AM RELINQUISHING LEGAL RIGHTS.

Ms. McClure’s state-court petition alleged that Life Time Fitness negligently allowed her son to play in an area designated for older children. The petition alleged that in addition to the ear injury, which was treated with five stitches, the incident left him unable or unwilling to participate in certain activities and afraid to be in a new childcare facility. (Docket Entry No. 1, Ex. 2 at 2). Life Time Fitness did not file an answer within the period set by the Texas rules.

In April 2013, the state-court judge granted the McClures’ motion for a no-answer default judgment against Life Time Fitness. Life Time Fitness removed the lawsuit to federal court in June 2013 and challenged the service of process and the no-answer default judgment. This court vacated the state-court default judgment in February 2014, finding that the service was defective and that entry of the [*7] no-answer default judgment was therefore void. Life Time Fitness then filed an answer and counterclaimed against Ms. McClure for breach of the Member Usage Agreement. (Docket Entry No. 21).

Life Time Fitness has moved for summary judgment, contending that the McClures’ claims are barred by the release contained in the Member Usage Agreement and are unsupported by the evidence. Life Time Fitness also moved for summary judgment on its breach-of-contract counterclaim against Ms. McClure. Ms. McClure contends that the release does not bar her claims, that the summary-judgment evidence supports recovery for both her and her son, and that she did not breach the Member Usage Agreement. Each argument and response is analyzed below.

II. The Applicable Legal Standards

A. Summary Judgment

[HN1] Summary judgment is appropriate if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). [HN2] “The movant bears the burden of identifying those portions of the record it believes demonstrate the absence of a genuine issue of material fact.” Triple Tee Golf, Inc. v. Nike, Inc., 485 F.3d 253, 261 (5th Cir. 2007) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-25, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)).

[HN3] If the burden of proof at trial lies with the nonmoving party, the movant may satisfy its initial burden by “‘showing’ [*8] — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party’s case.” See Celotex, 477 U.S. at 325. While the party moving for summary judgment must demonstrate the absence of a genuine issue of material fact, it does not need to negate the elements of the nonmovant’s case. Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005) (citation omitted). “A fact is ‘material’ if its resolution in favor of one party might affect the outcome of the lawsuit under governing law.” Sossamon v. Lone Star State of Tex., 560 F.3d 316, 326 (5th Cir. 2009) (quotation omitted). “If the moving party fails to meet [its] initial burden, the motion [for summary judgment] must be denied, regardless of the nonmovant’s response.” United States v. $92,203.00 in U.S. Currency, 537 F.3d 504, 507 (5th Cir. 2008) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc)).

[HN4] When the moving party has met its Rule 56(c) burden, the nonmoving party cannot survive a summary judgment motion by resting on the mere allegations of its pleadings. The nonmovant must identify specific evidence in the record and articulate how that evidence supports that party’s claim. Baranowski v. Hart, 486 F.3d 112, 119 (5th Cir. 2007). “This burden will not be satisfied by ‘some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence.'” Boudreaux, 402 F.3d at 540 (quoting Little, 37 F.3d at 1075). In deciding a summary judgment motion, the court draws all reasonable inferences [*9] in the light most favorable to the nonmoving party. Connors v. Graves, 538 F.3d 373, 376 (5th Cir. 2008).

III. Analysis

A. The Timeliness of the McClures’ Response to Life Time Fitness’s Summary Judgment Motion

Life Time Fitness argues that the court should disregard the McClures’ response to the summary judgment motion because it was filed after the deadline to respond and without leave of court. (Docket Entry No. 30 at 2). The summary judgment motion was filed on September 12, 2014. (Docket Entry No. 28). The response was filed on October 13, 2014, ten days after it was due. (Docket Entry No. 29). Because the delay was not extensive, there is no prejudice to Life Time Fitness. Because [HN5] a decision on the basis of default is disfavored, the court considers the McClures’ response on the merits.

B. The Waiver and Release

The waiver and release contained in the Member Usage Agreement stated that the signer waived any claims for injuries to herself or to her minor children resulting from Life Time Fitness’s negligence. (Docket Entry No. 28). [HN6] Texas imposes a fair notice requirement on preinjury releases. See Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 508-09 (Tex. 1993). A release that fails to satisfy the fair notice requirement is unenforceable as a matter of law. Storage & Processors, Inc. v. Reyes, 134 S.W.3d 190, 192 (Tex. 2004). Fair notice requires (1) that a party [*10] seeking to enforce a release provision comply with the express negligence doctrine and (2) that the provision be conspicuous. Id. The express negligence doctrine requires a party releasing potential claims against another party for its negligence to express that intent in conspicuous and unambiguous terms in the four corners of the agreement. Id. Conspicuousness requires the releasing language to be written and formatted so that a reasonable person in the position of the person against whom the release is to operate would notice it. Id.; Dresser, 853 S.W.2d at 508.

Ms. McClure agrees that the waiver and release provisions of the Member Usage Agreement meet the Texas fair notice requirements, but argues that the provisions do not cover her gross negligence claims. (Docket Entry No. 29 at 2). [HN7] Several Texas appellate courts have held that preinjury releases of gross negligence claims violate public policy. See Van Voris v. Team Chop Shop, LLC, 402 S.W.3d 915, 924-25 (Tex. App. — Dallas 2013, no pet.); Sydlik v. REEIII, Inc., 195 S.W.3d 329, 336 (Tex. App. — Houston [14th Dist.] 2006, no writ); Smith v. Golden Triangle Raceway, 708 S.W.2d 574, 576 (Tex. App. — Beaumont 1986, no writ); accord Memorial Med. Ctr. of East Texas v. Keszler, M.D., 943 S.W.2d 433 (Tex. 1997) (citing Golden Triangle Raceway, 708 S.W.2d at 576). Other Texas appellate courts have held that when a preinjury waiver releases claims for “negligence,” claims for gross negligence are not waived. See Del Carmen Canas v. Centerpoint Energy Res. Corp., 418 S.W.3d 312, 326-27 (Tex. App. — Houston [14th Dist.] 2013, no pet.); [*11] Akin v. Bally Total Fitness Corp., No. 10-05-00280-CV, 2007 Tex. App. LEXIS 1218, 2007 WL 475406, at *3 (Tex. App. — Waco Feb. 14, 2007, pet. denied); Rosen v. Nat’l Hot Rod Ass’n, No. 14-94-00775-CV, 1995 Tex. App. LEXIS 3225, 1995 WL 755712, at *7 n. 1 (Tex. App. — Houston [14th Dist.] Dec. 21, 1995, writ denied). In Newman v. Tropical Visions, Inc., the Texas Court of Appeals for San Antonio held to the contrary, finding that the plaintiff’s preinjury waiver of negligence claims also barred its gross negligence claims. Newman v. Tropical Visions, Inc., 891 S.W.2d 713, 722 (Tex. App. — San Antonio 1994, writ denied); see also Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118, 127 (Tex. App. — Houston [1st Dist.] 2002, pet. denied) (finding Newman persuasive). The court noted that the plaintiff had not raised the express negligence rule in its pleadings, and the court emphasized that its opinion did not address or take a position on whether a preinjury waiver of gross negligence claims violated public policy. Id.

The Texas Supreme Court has not ruled on this issue. The guidance the Texas appellate court case law provides, however, gives a reliable basis for making an Erie prediction about how the Supreme Court would rule if faced with the question. [HN8] “When making an Erie-guess in the absence of explicit guidance from the state courts, [this court] must attempt to predict state law, not to create or modify it.” Assoc. Inter. Ins. Co. v. Blythe, 286 F.3d 780, 783 (5th Cir. 2002) (citation omitted). Based on the [HN9] Texas cases holding that waivers [*12] of negligence claims do not give fair notice of an intent to waive gross negligence claims, and the cases holding that preinjury releases of gross negligence claims are contrary to public policy, this court holds that the Member Usage Agreement Ms. McClure signed did not release Life Time Fitness from liability for her gross negligence claims, including [HN10] the premises liability claim based on the Recreational Use Statute, which requires proof of gross negligence. See Tex. Civ. Prac. & Rem. Code §§ 75.002(c)-(d), 101.058; State v. Shumake, 199 S.W.3d 279, 289 (Tex. 2006).

By contrast, Ms. McClure’s claims for negligence, negligent misrepresentation, and common law premises liability to invitees fall within the scope of the waiver and release. Summary judgment is granted on these claims but denied as to Ms. McClure’s gross negligence and statutory premises liability claims.

Life Time Fitness also argued that the child’s claims were barred by the waiver and release Ms. McClure signed. [HN11] A preinjury release executed by a minor child’s parent is not enforceable to release claims against a commercial enterprise for the minor child’s injuries. See Paz v. Life Time Fitness, Inc., 757 F. Supp. 2d 658 (S.D. Tex. 2010) (making an Erie prediction); Munoz v. II Jaz Inc., 863 S.W.2d 207 (Tex. App. — Houston [14th Dist.] 1993, no writ). The child’s claims are not barred on this [*13] basis.

B. The Sufficiency of the Evidence

Life Time Fitness also moves for summary judgment on the basis that there is no evidence to support either Ms. McClure’s or her child’s claims.

Life Time Fitness contends that the child, who was two years old at the time, was too young to rely on any statement made by Life Time Fitness and therefore cannot prevail on a negligent misrepresentation claim. (Docket Entry No. 23). In response, Ms. McClure argues that her own reliance should be imputed to her son. (Docket Entry No. 29 at 4-5). [HN12] Although one party’s knowledge of a misrepresentation may be imputed to another under certain circumstances, none of which are present here, Texas courts do not recognize a theory of imputed or vicarious reliance. Grant Thornton LLP v. Prospect High Income Fund, 314 S.W.3d 913, 924 (Tex. 2010) (in the context of an agency relationship). The McClures have not identified any evidence of a misrepresentation Life Time Fitness made to the child on which he did or could have reasonably relied. Summary judgment is granted on the child’s negligent misrepresentation claim.

Life Time Fitness also seeks summary judgment on the child’s remaining claims, contending that it breached no duty owed to him and that no condition at the childcare facility posed [*14] an unreasonable risk of harm. The McClures did not specifically respond to the motion for summary judgment on these claims. (Docket Entry No. 29). In their pleadings, the McClures alleged that Life Time Fitness failed to provide a safe childcare area. (Docket Entry No. 23). The summary judgment evidence in the record is Ms. McClure’s affidavit and the Member Usage Agreement she signed. In her affidavit, Ms. McClure states that there was an injury involving her son and she was told by an unnamed employee that he was injured in a play area designated for children above his age. (Docket Entry No. 29, Ex. 2). Although the record is scant, it is sufficient to withstand summary judgment as to the child’s claims other than for negligent misrepresentation.

C. Life Time Fitness’s Counterclaims

Life Time Fitness moves for summary judgment on its breach-of-contract counterclaim against Ms. McClure. Life Time Fitness first argues that because Ms. McClure answered with only a general denial, the counterclaim allegations should be deemed admitted. (Docket Entry No. 28 at 8). [HN13] “General denials are uncommon in federal court because ‘situations in which the complaint can be completely controverted are [*15] quite rare.'” Mary Kay, Inc. v. Dunlap, 2012 U.S. Dist. LEXIS 86499, 2012 WL 2358082, at *7 (N.D. Tex. June 21, 2012) (quoting 5 Wright & Miller § 1265, at 549). Life Time Fitness argues that by filing a general denial, Ms. McClure was “admitting the operative facts” of the counterclaim. Life Time Fitness seeks summary judgment on this basis.

[HN14] “As directed by Rule 8 [of the Federal Rules of Civil Procedure], the answer should contain only two things: (1) a response (admitting, denying, or claiming insufficient knowledge) to the averments in the complaint; and (2) a statement of all affirmative defenses.” Software Publishers Ass’n v. Scott & Scott, LLP, 2007 U.S. Dist. LEXIS 59814, 2007 WL 2325585, at *2 n. 4 (N.D. Tex. Aug.15, 2007) (citing Fed. R. Civ. P. 8(b)-(c)). “A party that intends in good faith to deny all the allegations of a pleadings — including the jurisdictional grounds — may do so by a general denial.” Fed. R. Civ. P. 8(b)(3). “A party that does not intend to deny all the allegations must either specifically deny designated allegations or generally deny all except those specifically admitted.” Id.

[HN15] “Granting summary judgment when a party fails to respond to the opposing party’s summary judgment motion is comparable to granting a default judgment.” Tolliver v. Liberty Mut. Fire Ins. Co., No. 2:06-0904, 2008 U.S. Dist. LEXIS 18839, 2008 WL 545018, at *1 (S.D. Ohio Feb. 25, 2008). “‘A party is not entitled to a default judgment as a matter of right, even where the defendant is technically [*16] in default.'” McCarty v. Zapata County, 243 F. App’x 792, 794 (5th Cir. 2007) (per curiam) (quoting Lewis v. Lynn, 236 F.3d 766, 767 (5th Cir. 2001)). Default judgment is a drastic remedy that should be granted only in extreme situations. Warren v. Johnson, 244 F. App’x 570, 571 (5th Cir. 2007) (per curiam) (citing Lewis, 236 F.3d at 767). Life Time Fitness has not shown such an extreme situation. Life Time Fitness’s motion for summary judgment on its counterclaim will be considered on the merits.

The Member Usage Agreement Ms. McClure signed when she joined Life Time Fitness contained a clause headed “Life Time’s Fees and Costs.” This clause stated that if Ms. McClure asserted a negligence claim against Life Time Fitness, she would pay “all reasonable fees (including attorney’s fees), costs, and expenses incurred by Life Time (“Life Time’s Fees and Costs”) to defend (1) the Negligence Claim(s) and (2) all other Claims based on the same facts as the Negligence Claim(s).” Ms. McClure argues that she did not breach the Member Usage Agreement because she asserted claims for gross negligence.

As discussed above, although Ms. McClure’s claims for gross negligence and premises liability under the Recreational Use Statute are not barred by the waiver and release, her remaining claims are barred. Ms. McClure asserted claims against Life Time Fitness for negligence, negligent misrepresentation, [*17] and common law premises liability to invitees, despite agreeing that she would not do so. Life Time Fitness is entitled to the damages provided for in the Member Usage Agreement: the fees it reasonably incurred in defending solely against Ms. McClure’s claims for negligence, negligent misrepresentation, and common-law premises liability. Life Time Fitness is not entitled to any fees incurred in defending against the child’s claims, which were not waived by the Member Use Agreement. Nor is Life Time Fitness entitled to any fees incurred to defend against Ms. McClure’s claims for gross negligence and for statutory premises liability. The only fees at issue are those that Life Time Fitness would have incurred had Ms. McClure asserted only the claims waived by the release.

IV. Conclusion

Summary judgment is granted to Life Time Fitness on Ms. McClure’s claims for negligence, negligent misrepresentation, and common law premises liability to invitees. Summary judgment is denied on Ms. McClure’s claims for gross negligence and for premises liability under the Recreational Use Statute. Summary judgment is granted on the minor child’s negligent misrepresentation claim and otherwise denied. Life [*18] Time Fitness’s motion for summary judgment on its counterclaim is granted only for reasonable fees incurred in defending against Ms. McClure’s negligence, negligent misrepresentation, and common law premises liability claims, and is otherwise denied.

SIGNED on December 3, 2014, at Houston, Texas.

/s/ Lee H. Rosenthal

Lee H. Rosenthal

United States District Judge

If you have a manual, you have to follow it, if you have rules, you have to follow them, if you have procedures, you have to follow them, or you lose in court.

Posted: April 6, 2015 | Author: Recreation Law | Filed under: Assumption of the Risk, Health Club, New York | Tags: assumption of the risk, Inherent Risk, Manual, New York, Procedures, Release, Spin Class, Spinning | Leave a comment

Defendant with spin cycle class loses this lawsuit because they simply failed to follow their own rules and procedures. Consequently the plaintiff did not know or understand the risks of riding a spin bike and could not assume the risk.

State: New York, Supreme Court of New York, New York County

Plaintiff: Wolf Scheck and Lynn Scheck

Defendant: – Soul Cycle East 83rd Street, LLC d/b/a Soulcycle and Julie Rice

Plaintiff Claims: Negligence

Defendant Defenses: Assumption of the risk

Holding: for the plaintiff

Year: 2012

This is interesting because of how the defendant lost the case. The plaintiff and his wife wanted to try spin classes for fitness. They registered for a spin class not knowing how or what a spin class was. New people in the class were told to arrive 15 minutes early to have an introduction and training in the equipment and the class.

The plaintiff argues he was not properly instructed on the use of the equipment, and the dangers of the equipment were not readily apparent. Those dangers were increased by the defendant’s actions by not properly instructing the class and training the plaintiff.

It appears that the plaintiff arrived late, as his wife was already there. The information provided to the plaintiff was not as comprehensive as the information provided to the plaintiff’s wife.

A spin cycle is a fixed gear bicycle meaning the pedals do not coast but rotate once each side for every wheel rotation.

The only way to stop the wheel from turning, and the pedals from turning as well, is to use the break. A rider cannot keep both feet still and let the wheel spin. Just pushing with your feet to attempt to stop the wheel is futile “unless you have very strong legs.”

During the class, the defendant stood up when told and injured his knee. Beginners are normally told not to stand up in spin classes. The plaintiff sued for his knee injury. The defendant filed a motion for summary judgement based on assumption of the risk, which was denied leading to this decision.

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

The first mistake is the defendant had a release but did not have either the plaintiff or the plaintiff’s spouse sign one. The validity of the release might have been at issue because the defendants paid a fee for an exercise class which might trigger General Obligation Law § 5-326 voiding the release. See NY court explains how it interprets § 5-326, which disallows releases in NY. Upholds release for a marathon for more about how this statute bars some releases in New York.

The defendant failed to follow numerous requirements for the class which it had set out either in how it dealt with people or in a manual it created for this situation. Those requirements included the following:

· The defendant employee adjusted the seat height for the plaintiff and showed him where the brake was, however, the employee did not know how to use the brake.

· Instructions were given to the defendant’s spouse, but not the defendant on several safety issues.

Ms. Regan, the Soul Ccycle instructor, recalls helping Mrs. Scheck get her bike ready for the class and spending a lot of time with this particular student. She testified she has a “spiel” she gives to beginners, consisting of how to use the resistance, where the emergency brake is and assuring them that there is no need to keep up with anyone else. Although she gave these instructions to Mrs. Scheck, she does not recall telling Mr. Scheck the same thing. Ms. Regan states she always asks beginners to raise their hand so she can spot them and keep an eye on them. She does not recall whether Mr. Scheck raised his hand or, if he did, whether she saw him.

· Although they were requested to arrive 15 minutes early for training, the defendant’s employee only spent 2 minutes with them explaining the class and the spin cycle.

· The instructors “…usually warn beginners not to get up out of the saddle. None of the defendant employees did give this warning to either defendant, and the plaintiff was injured when he stood up to pedal when the instructor told him too.

The defendant had a training manual to be used. The training manual required.

…instructing staff on what to do with beginner/new spinners. Among the instructions is; 1) offer them water, 2) provide free shoes, and 3) set up the bike for them. It is also required that the resistance knob and brake mechanisms be described and the new rider is instructed to “stay in the saddles if they’re uncomfortable.”

None of the items listed in the training manual were followed except for providing the plaintiff with free shoes.

Assumption of risk was defined according to New York law and how it was going to be applied in this situation. For assumption of risk to be effective, the risks cannot be increased. “A participant in a recreational activity will not, however, be deemed to have assumed unreasonably increased risks.” There is a duty on the dependent to make the conditions as safe possible. “Furthermore, the defendant has a duty to make the conditions as safe as they appear to be.”

The defendant’s duty, for the plaintiff to assume the risk, is measured against the risks known by the plaintiff. “…when measuring the defendant’s duty to a plaintiff, the risks undertaken by the plaintiff also have to be considered.”

The court then pointed all the problems the defendant created by not instructing the new plaintiff in spinning. The court summed up its analysis of the failures of the defendant to instruct the plaintiff by pointing out the defendant had a manual that required the employees to do each thing the manual required “The Soul Cycle training manual requires that new spinners be given certain preliminary instructions that apparently were not provided to Mr. Scheck.”

The court also found that use of a gym or health club was not a sporting event which allows for increased risks to be assumed by the plaintiff and allows for the plaintiff to not fully understand some of the risks. A player in a sporting event assumes the risk of the game; including those he or she may not fully understand.

In this case, defendants have failed to prove, as a matter of law, that plaintiff assumed the risks inherent in participating in a spin class. Not only were plaintiff’s feet clipped into pedals; the pedals continue to move even though he wanted to stop them from moving. Mr. Scheck stated that once he was propelled over, he could not reach the brake because it was under his body. Plaintiff has raised triable issues of fact whether the activity he agreed to participate in was as safe as it appeared to be and whether he assumed the risks which he was subjected to. There are also triable issues of fact whether the defendants properly instructed him in how to use the equipment.

The case was set for trial.

So Now What?

Remember that assumption of the risk is accepting a known risk. By not instructing the plaintiff properly before the class began, the plaintiff could not assume the risk because the plaintiff did not know the risk. The defendant knew the risks, and had rules that required them to inform the plaintiff of the risks.

This fact was emphasized by the court several times pointing out the defendant’s manual required something to be done, which was not done.

If you write it down and call it a manual, plan, standard, rules or regulations you better follow it every time.

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Lotz et al., v. The Claremont Club et al., 2013 Cal. App. Unpub. LEXIS 5748

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

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Scheck v. Soul Cycle East 83rd Street, LLC, 2012 N.Y. Misc. LEXIS 3719; 2012 NY Slip Op 32021(U)

Posted: March 30, 2015 | Author: Recreation Law | Filed under: Health Club, Legal Case, New York | Tags: assumption of the risk, Inherent Risk, Manual, New York, Procedures, Release, Spin Class, Spinning | Leave a comment

Scheck v. Soul Cycle East 83rd Street, LLC, 2012 N.Y. Misc. LEXIS 3719; 2012 NY Slip Op 32021(U)

[**2] Wolf Scheck and Lynn Scheck, Plaintiff(s), -against- Soul Cycle East 83rd Street, LLC d/b/a Soulcycle and Julie Rice, Defendant(s). Index No.: 104046/10

104046/10

SUPREME COURT OF NEW YORK, NEW YORK COUNTY

2012 N.Y. Misc. LEXIS 3719; 2012 NY Slip Op 32021(U)

July 26, 2012, Decided

August 2, 2012, Filed

NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.

CORE TERMS: bike, spin, cycle, wheel, brake, leg, assumption of risk, pedal, shoes, summary judgment, stationary, feet, gym, instructor, beginner, clerk’s, resistance, bicycle, spinner, front, heightened, sport, weighted, regular, street, online, minutes, rider, issues of fact, risks inherent

JUDGES: [*1] PRESENT: Hon. Judith J. Gische, J.S.C.

OPINION BY: Judith J. Gische

OPINION

Decision/Order

Upon the foregoing papers, the decision and order of the court is as follows:

Gische J.:

This is a negligence action for personal injuries. Now that issue has been joined and the note of issue was filed, defendants move for summary judgment. Plaintiffs raise the issue of the untimeliness of this motion, arguing that the motion was brought more than 120 days after the Note of Issue was served and filed.

CPLR 3212 provides that any party may move for summary judgment after issue has been joined and, If no date is set by the court, such motion shall be made “no later than [120 days] after the filing of the note of issue…” SCROLL (the Supreme Court Records On Line Library) shows that the Note of Issue was stamped “received” in the [**3] Trial Support Office on June 27, 2011, but the fee was paid and accepted by the New York County Clerk’s Office on June 29, 2011. Defendant’s motion was served by mail on October 26, 2011. A motion on notice is “made” when it is served (CPLR 2211). Papers are filed when they are delivered to the court clerk or the clerk’s designee (see Matter of Grant v. Senkowski, 95 N.Y.2d 605, 744 N.E.2d 132, 721 N.Y.S.2d 597 [2001]). Furthermore, [*2] not only does the Note of Issue have to be filed with the County Clerk, it must be accompanied by the payment of the appropriate fee, as prescribed by CPLR 8020 (Uniform Civil Rules for the Supreme Court and the County Court, 22 NYCRR 202.21).

Since the Note of Issue was paid for and filed with the County Clerk on June 29, 2011, and defendants’ motion was “made” on October 26, 2011, when it was served by mail, it was timely made within the 120 day statutory period (CPLR 3212 [a]; Gazes v. Bennett, 38 A.D.3d 287, 835 N.Y.S.2d 1 [1st Dept 2007]; see also, Nolan v. J.C.S. Realty, 79 AD3d 414, 910 N.Y.S.2d 906 [1st Dept 2011]). The motion, therefore, will be decided on its merits (CPLR § 3212; Brill v. City of New York, 2 NY3d 648, 814 N.E.2d 431, 781 N.Y.S.2d 261 [2004]).

Facts and Arguments

This action arises from events that occurred on December 25, 2009 (“date of the accident”) at “Soulcycle,” located on 83rd Street and Lexington Avenue in Manhattan during an indoor cycling class. The complaint alleges that Wolf Scheck was injured while in this “spin” class. According to Mr. Scheck, taking a spin class is not the same as just riding a regular street bicycle or stationary bicycle found at any gym. He did not, however, know this before he took the class. [*3] Mr. Scheck contends he was not properly instructed or supervised in how to use the equipment and that this constitutes negligence on the part of the defendants. Mr. Scheck denies he assumed the risk of [**4] injury just by participating in the class. He claims that the danger of this activity was not readily apparent to the casual observer and was increased by the defendants’ actions.

Defendants are Soul Cycle East 83rd Street, LLC (“Soul Cycle”), the company that owns, maintains, operates, etc., the Soul Cycle facility where the accident is claimed to have occurred and Julie Rice (“Rice”), a member of the Soul Cycle LLC. Defendants contend they are entitled to summary judgment dismissing the complaint because Mr. Scheck, by voluntarily participating in Soul Cycle’s spin class assumed the risks inherent to the participation of that recreational activity, thereby relieving them of any duty to prevent the type of accident he complains of. Defendants deny they improperly instructed Mr. Scheck in the use of the equipment. Defendants seek the dismissal of all claims against Ms. Rice on the basis that she was not personally involved in the happening of the accident and there are no factual allegations [*4] against Ms. Rice individually. They maintain she is corporate officer.

Mr. Scheck and Mrs. Scheck¹ were each deposed about the accident. Mr. Scheck testified at his EBT that his wife suggested they try a spin class. Mrs. Scheck testified at her EBT that friends had told her how they lost weight “spinning” and she was eager to try it. Neither of the Schecks had any idea what it meant to “spin” or what kind of bicycle was involved. Both of them, however, have regular exercise routines. Mr. Scheck is a two-time marathon runner, he does weight training and plays tennis. Each of the Schecks has a gym membership and has belonged to other gyms in the past.

1 Mrs. Scheck has a derivative claims for loss of consortium/services.

Mrs. Scheck registered the couple for the class online after calling the facility and [**5] asking some questions. She was told on the phone they should come to class 15 minutes early so staff could go through “the whole [regimen] for you and explain everything carefully, because I said I don’t want there to be anything that goes wrong.” When Mr. Scheck arrived for the spin class, his wife was already there. He did not check himself in or do anything other than put his things [*5] in a locker. Mrs. Scheck testified that when she arrived, she learned that Soul Cycle showed only one of them was registered for the class, even though she had payed online for two participants. Apparently that was corrected and both Mr. and Mrs. Scheck were allowed to take the class.

Once inside the classroom, a female employee approached them and asked whether they had done a spin class before. Each of them said no. Mr. Scheck testified this person suggested they sit in the back because it might be easier for them to watch what everyone else was doing. This person told Mr. Scheck to get on the bike while she adjusted the seat for him. She also showed him where the brake was, but not how to use it. Mr. Scheck testified that he did not test the brake out to see how it worked. This process took about two (2) minutes. Noticing that he was not wearing the correct shoes, the female employee told Mr. Scheck to go get bike shoes from the front desk, which he did. These shoes (later described by others who were deposed), have a cleat that locks the rider’s shoes to the pedals, preventing their feet from slipping off.

The female employee who taught the class, later identified as Marybeth Regan, [*6] was someone different than the person who had shown Mr. Scheck the equipment. Ms. Regan was seated at the front of the class on a raised platform. Once the class was under way, some of the cyclists started pedaling very fast. Mr. Scheck, however, [**6] maintained a slow pace, pedaling very slowly. Five (5) or ten (2) minutes into the class, the instructor told the cyclists to stand up for the next exercise. Scheck obliged and as he raised himself with his right leg elevated and his left leg extended, “the machine grabbed my [right] leg and pulled it around…” The pedals kept revolving, almost on their own, all the while with Scheck’s feet strapped in. Scheck heard a “pop” and intense pain. One or two persons help extricate him from the bike and he was taken to the hospital by ambulance. He later discovered he had torn the quadriceps muscle in his right leg.

Madison Warren worked at the 83rd Street facility. She was the front desk associated on the day of the accident. Ms. Warren testified at her EBT that there were only three (3) people working that day, including herself, because it was Christmas Day. Ms. Warren was asked about the procedures for purchasing classes online and what new [*7] spinners usually do when they arrive for a class. According to Ms. Warren, new spinners are asked to sit in back of the class and this is reflected in a sheet showing that the Schecks were moved from one set of bikes to another in the back. She also testified that when purchasing classes online, someone can buy more than one class, or classes for more than one person. It is required, however, that the person making the purchase check a box indicating s/he has seen the waiver before s/he can complete the transaction. A hard copy of the waiver is at the front desk and participants are asked to sign and initial them upon arrival. Ms. Warren did not know whether Mr. Scheck was handed a hard copy of the waiver when he arrived for the spin class. No log of who trains each new person is maintained by the facility, Generally, the instructor teaches to the skill level of the class: if there are many beginners, the class is easier. Regardless, of the overall skill level, instructors usually warn beginners not to get up out [**7] of the saddle. Ms. Warren testified that there is a training manual instructing staff on what to do with beginner/new spinners. Among the instructions is; 1) offer them water, [*8] 2) provide free shoes, and 3) set up the bike for them. It is also required that the resistance knob and brake mechanisms be described and the new rider is instructed to “stay in the saddles if they’re uncomfortable.” Ms. Warren does not recall who assisted Mr. Scheck that day and the two employees who worked there on the day of the accident are no longer with the company.

Ms. Warren and Ms. Regan were each separately asked to describe the differences between a spin bike and a stationary bike. Ms. Warren responded that, unlike a regular [*9] bicycle, a spin cycle has a single fixed wheel. Unlike a regular stationary bike, each pedal will result in one revolution of the wheel. Ms. Warren testified that she had never ridden with anyone else who had used a similar bicycle. So long as the front wheel is spinning. The only way to stop the wheel from turning, and the pedals from turning as well, is to use the break. A rider cannot keep both feet still [**8] and let the wheel spin. Just pushing with your feet to attempt to stop the wheel Is futile “unless you have very strong legs.”

Ms. Regan testified that instructs beginners that the bike has a weighted wheel and “you know [how] on a bike you can coast and stop your legs, Not on this. It’s a weighted wheel, so if you stop your legs you’re going to keep going. So you need to either turn the resistance up, or push down on the brake.” standing up in the saddle, it is important that a rider not lean on the handlebars because “you can fall forward…” She also stated that the special shoes Mr. Scheck was wearing bound his feet to the pedals and, if you fall forward, “the legs would keep going…” from the momentum “until you push down on the brake.” Ms. Regan specifically recalled that [*10] did not give these instructions to Mr. Scheck or tell him that “righty tighty” is how resistance is increased. According to Ms, Regan, this is an Instruction she gives on an individual basis, not to the entire class. When asked whether the spinner had specific instructions or warning on it, setting forth these precautions, Ms. Regan replied “no.” She also testified that the weighted wheel bike looks different than a stationary bike.

Applicable Law

On a motion for summary judgment, it is the movant’s burden to set forth evidentiary facts to prove its prima facie case that would entitle it to judgment in its favor, without the need for a trial (Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 404 N.E.2d 718, 427 N.Y.S.2d 595 [1980]). The party opposing the motion must demonstrate, by admissible evidence, the existence of a factual issue requiring a trial of the action, or tender an acceptable excuse for his/her/its failure so to do (Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 501 N.E.2d 572, 508 N.Y.S.2d 923 [1986]).

[**9] Discussion

While the parties basically agree on the law, they dispute its application to the facts at bar. Plaintiff contends that by all appearances, the spin bike he voluntarily agreed to use during his class looks like any other stationary [*11] bike and that when he signed up to take a spin class he assumed It was like riding any other stationary bike he had seen in other gyms. Thus, his argument is he assumed a lower risk than it turned out to actually be. Taking this argument further, plaintiff urges the court to deny defendants’ motion because he did not assume the more heightened risk and, therefore, the doctrine of implied assumption of risk applies. Plaintiff cites extensively to the Court of Appeals opinion in Trupia v. Lake George Central School Dist. (14 NY3d 392, 927 N.E.2d 547, 901 N.Y.S.2d 127 [2010]), Trupia involved a 12 year old student enrolled in a summer school program. The child was injured when, while attempting to slide down a banister, he fell off. In the Court of Appeal’s lengthy opinion Chief Judge Lipmann wrote that:

We do not hold that children may never assume the risks of activities, such as athletics, in which they freely and knowingly engage, either in or out of school–only that the inference of such an assumption as a ground for exculpation may not be made in their case, or for that matter where adults are concerned, except in the context of pursuits both unusually risky and beneficial that the defendant has in some nonculpable [*12] way enabled.

Plaintiff maintains, based on this language, that the doctrine of the assumption of risk is no longer a complete bar to recovery, except in very limited circumstances which are not present in this case. Defendants, on the other hand, urge the court to apply the doctrine of primary assumption of risk. The doctrine of primary assumption of risk is [**10] commonly applied in situations involving sports, both amateur and professional. A key distinction in these doctrines is that CPLR 1411, which addresses issues of comparative negligence, is applicable by its terms to implied assumption of risk (Abergast v. Board of Education, 65 NY2d 161, 480 N.E.2d 365, 490 N.Y.S.2d 751 [1985]) whereas a voluntary participant in a sporting event assumes the known risks normally associated with that sport (see Morgan v. State of New York, 90 N.Y.2d 471, 484, 685 N.E.2d 202, 662 N.Y.S.2d 421 [1997]). Thus, defendants argue Mr. Scheck knew or should have known, and therefore consented to the foreseeable consequences of his participation in the spin class (Turcotte v. Fell, 68 N.Y.2d 432, 439, 502 N.E.2d 964, 510 N.Y.S.2d 49 [1986]).

Plaintiff’s interpretation of the Trupia decision is unduly restrictive and ignores other, important language in that decision:

We have recognized that athletic and recreative [*13] activities possess enormous social value, even while they involve significantly heightened risks, and have employed the notion that these risks may be voluntarily assumed to preserve these beneficial pursuits as against the prohibitive liability to which they would otherwise give rise. We have not applied the doctrine outside of this limited context and it is clear that its application must be closely circumscribed if it is not seriously to undermine and displace the principles of comparative causation…

It is clear from the rest of the Trupia opinion that the doctrine of primary assumption of risk was not a possible defense for the defendant-school because the injury producing activity was unsupervised “horseplay” (i.e. school negligence) not an activity normally associated with the heightened risks attendant to sports activities. The Court did not, as plaintiff suggests, sweep away a legion of cases in which courts have [**11] recognized that certain sport activities present significantly heightened risk of injury. This point is evident from the Court of Appeals’ more recent decision in Bukowski v. Clarkson University (19 NY3d 353 [2012]). Bukowski involved a student whose jaw was broken [*14] when he was struck in the face with a baseball. The accident occurred when, for the very first time, he was pitching live in a cage. The court affirmed dismissal of plaintiff’s case because “there was insufficient evidence from which a jury could have concluded that plaintiff faced an unassumed, concealed, or even enhanced risk . . .”

A participant in a recreational activity will not, however, be deemed to have assumed unreasonably increased risks (Morgan v. State, 90 NY2d 471, 685 N.E.2d 202, 662 N.Y.S.2d 421 [1997] [player tripped on torn net]). Furthermore, the defendant has a duty to make the conditions as safe as they appear to be (Gortych v. Brenner, supra, citing Turcotte v. Fell, 68 NY2d at 439). Thus, when measuring the defendant’s duty to a plaintiff, the risks undertaken by the plaintiff also have to be considered (Turcotte v. Fell, supra at 438).

Mr. Scheck agreed to take a spin class that was led by an instructor in a gym like setting. He provided shoes he was unfamiliar with, the seat was adjusted for him and he was given preliminary instructions about how the resistance on the bike worked. He was also shown the brake on the bike. No one explained the relationship between the tension knob, the brake and [*15] how the weighted wheel worked, although the instructor and Ms. Warren each acknowledged the uniqueness of the bikes used at the facility. The entire instructional phase took two minutes, even though the person assisting him knew he was new to the class and had never “spun” before. The Soul Cycle training [**12] manual requires that new spinners be given certain preliminary instructions that apparently were not provided to Mr. Scheck.

A participant in a sporting activity is held to have consented to the risks inherent in it “[i]f the risks of the activity are fully comprehended or perfectly obvious” and that “participants properly may be held to have consented, by their participation, to those injury-causing events which are known, apparent or reasonably foreseeable consequences of the participation” (Turcotte v. Fell, supra at 439). There is appellate authority that use of a gym facility is not participation in a sporting event (Corrigan v. Musclemakers Inc., 258 A.D.2d 861, 686 N.Y.S.2d 143 [3rd Dept 1999]; Petretti v. Jefferson Valley Racquet Club, Inc., 246 A.D.2d 583, 668 N.Y.S.2d 221 [2nd Dept 1998J). Furthermore, where the plaintiff is a neophyte, the level of his or her experience is taken into account (Petretti v. Jefferson Valley Racquet Club, Inc., supra). [*16] Although the doctrine of primary assumption of risk has been applied in a recreational setting where a biker is injured (Gortych v. Brenner, 83 A.D.3d 497, 922 N.Y.S.2d 14 [1 Dept 2011]; Cotty v. Town of Southampton, 64 A.D.3d 251, 880 N.Y.S.2d 656 [2nd Dept 2009]), a primary distinguishing factor is that those cases involved bikers pedaling outdoors and their injuries were due to a defective condition on the road or path they were on. In each of those cases, defendants were denied summary judgment because they failed to make a prima facie showing that the primary assumption of risk doctrine was applicable to the activity in which the plaintiff was engaged at the time of his or her accident.

In this case, defendants have failed to prove, as a matter of law, that plaintiff [**13] assumed the risks inherent in participating in a spin class. Not only were plaintiff’s feet clipped into pedals, the pedals continue to move even though he wanted to stop them from moving. Mr. Scheck stated that once he was propelled over, he could not reach the brake because it was under his body. Plaintiff has raised triable issues of fact whether the activity he agreed to participate in was as safe as it appeared to be and whether he assumed the [*17] risks which he was subjected to (Petretti v. Jefferson Valley Racquet Club, Inc., 246 A.D.2d 583, 668 N.Y.S.2d 221 [2nd Dept 1998]). There are also triable issues of fact whether the defendants properly instructed him in how to use the equipment. Therefore, defendants’ motion to dismiss the complaint against Soul Cycle is denied.

Defendants’ motion to dismiss the claims against Ms. Rice is granted, as plaintiff has presented no argument about why that branch of their motion should be denied. No factual claim is made that she was involved in the accident or that she acted outside her capacity as a member of the company. Therefore, the claims against Ms. Rice are hereby severed and dismissed in their entirety.

Conclusion

Defendants’ motion for summary judgment is granted only to the extent that the claims against Ms. Rice are severed and dismissed. The balance of defendants’ motion for summary judgment is, however, denied not only because Soul Cycle has failed to prove it is entitled to such relief as a matter of law, but also because there are triable issues of fact. The issue of the timeliness of this motion is decided in favor of the defendants and plaintiff’s objection to this motion as untimely is denied.

[**14] [*18] This case is ready to be tried. Plaintiff shall serve a copy of this decision and order on the Mediator who is assigned to this case and also on the Office of Trial Support so the case can be scheduled for trial.

Any relief requested but not specifically addressed is hereby denied. This constitutes the decision and order of the court.

Dated: New York, New York

July 26, 2012

So Ordered:

/s/ Judith J. Gische

Hon. Judith J. Gische, JSC

Two releases, same plaintiff’s, same defendants releases cancel each other out and defendant is left with a lawsuit

Posted: December 22, 2014 | Author: Recreation Law | Filed under: California, Health Club, Release (pre-injury contract not to sue) | Tags: Club Rules, Day Care, Dodgeball, Gym, Health club, Release | Leave a comment

The health club had a release in its membership agreement and a separate release. The appellate court said the difference in the language created an ambiguity which canceled both releases.

State: California, Court of Appeal of California, Second Appellate District, Division Two

Plaintiff: Nicholas Lotz (Nicholas) by and through his guardian ad litem Deborah Lotz (Deborah) and Deborah individually (mother)

Defendant: The Claremont Club (Club) and Adam Qasem

Plaintiff Claims: negligence and gross negligence

Defendant Defenses: execution of a release and express assumption of risk, and according to the assumption of risk doctrine. actions did not rise to the level of gross negligence.

Holding: for the plaintiff

Year: 2013

This case concerns dodgeball. A great game when played by kids, a pretty nasty game when one of the players is 18 and all the other players are ten.

The plaintiff was in the health club’s day-care program. While in the program an employee who was not trained in working in the day-care program, at the suggestion of another kid, allowed the kids to play dodgeball. The game was held in a racquetball court and played with the kids. One of employee’s throws a ball hitting the plaintiff smashing his face into the wall where he suffered injuries.

The court continuously pointed out several facts, to the point of becoming monotonous:

· No one told the mother that the kids would be playing dodgeball

· Of course if told, the mother post injury stated, she would not have allowed her son to play dodgeball

· The defendant who through the fateful ball had never had any training in working in the childcare area called the InZone.

· The defendant had never worked in the childcare.

· The club’s written policies stated only racquetball, handball, squash and wall ball could be played in the racquetball court.

· The defendant violated the Club’s then unwritten policy that supervisors not participate in dodgeball games with the children.

The parents of the plaintiff signed two forms when they enrolled at the club. The first was the membership agreement. The membership agreement had boxes to check for activities that you might be interested in. Dodgeball was not listed as a possible activity. The second agreement was a release. Both documents contained exculpatory language.

The trial court dismissed the plaintiff’s claims based on the release(s) and the plaintiff appealed.

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

The court first reviewed the requirements, in its view, for a valid release under California law.

California courts require a high degree of clarity and specificity in a [r]elease in order to find that it relieves a party from liability for its own negligence.” Thus, “to be effective, an agreement which purports to release, indemnify or exculpate the party who prepared it from liability for that party’s own negligence or tortious conduct must be clear, explicit and comprehensible in each of its essential details. Such an agreement, read as a whole, must clearly notify the prospective releaser or indemnitor of the effect of signing the agreement.”

But “a release need not achieve perfection” to be effective. A release is sufficient if it “‘constitutes a clear and unequivocal waiver with specific reference to a defendant’s negligence

The court found the releases were not “crystal clear.” The court then looked at the issue of ambiguity in contracts.

‘An ambiguity exists when a party can identify an alternative, semantically reasonable, candidate of meaning of a writing. An ambiguity can be patent, arising from the face of the writing, or latent, based on extrinsic evidence.’ The circumstances under which a release is executed can give rise to an ambiguity that is not apparent on the face of the release. If an ambiguity as to the scope of the release exists, it should normally be construed against the drafter.

The defendant club had argued that the release was the valid release for the purposes of the discussion. (How you designate one contract over another is beyond me. The “Parol Evidence” rule specifically prohibits this.) However, the plaintiff argued the membership agreement contained the operative language because it stated:

This Agreement constitutes my sole and only agreement respecting release, waiver of liability, assumption of the risk, and indemnity concerning my involvement in The Claremont Club. Any prior written or oral agreements, promises, representations concerning the subject matter contained in this Agreement and not expressly set forth in this Agreement have no force or effect.

Because this created an ambiguity in the language of the contracts and created a question about which contract superseded the other, there was a triable issue of fact that could not be decided by a motion for summary judgment.

The court then looked at the language in the release and stated:

Because the release, the rules, the unwritten policies and the parents had never been informed that their son might play dodgeball the court held the language in the release(s) did not cover the injury. The court stated that playing dodgeball was an undisclosed risk which was not covered by the release.

The court then went through every way, the defendant club or the defendant had violated their own policies.

· Playing dodgeball in the racquetball court

· On one supervising the game (a player is not a supervisor?)

The court also found that the release only applied to the child care, and the injury occurred in the racquetball court that was outside of the childcare area. Therefore, there was a triable issue of fact of whether the release protected the defendants from lawsuits of this type.

The court concluded this section of its opinion by stating the evidence:

…offered on summary judgment demonstrated that the Membership Agreement and/or the Waiver did not clearly and explicitly release the Club from liability for Nicholas’s injuries. In view of the ambiguities concerning whether the Membership Agreement or the Waiver applied, whether the language in either document was sufficient to cover the Club’s conduct and whether any release violated public policy, a trier of fact could find that the Club was not released from liability.

Having found at least four reasons why neither release was valid or covered the risks that created the injury the court reviewed the gross negligence claim. The trial court found the injury was an inherent risk of the game and assumption of risk barred the claim and also the gross negligence claim. An injury from an inherent risk could not be gross negligence.

The court defined gross negligence under California law as this court interpreted the law.

California courts define “‘gross negligence'” “as either a ‘”‘want of even scant care'”‘ or ‘”‘an extreme departure from the ordinary standard of conduct.'”‘ Gross negligence “connotes such a lack of care as may be presumed to indicate a passive and indifferent attitude toward results.” In contrast to willful misconduct, gross negligence does not require an intent to do harm or to act with absolute disregard of the consequences.

Backtracking to the issue of playing dodgeball on a racquetball court the court found the club had a policy that prohibited dodgeball on the racquetball court. However, the court found the club knew that dodgeball had been played on the racquetball court and found: “Consistent with the Club’s failure to acknowledge dodgeball as an ongoing activity, it failed to promulgate rules to ensure the game was played safely.” The club also had a rule which stated that supervisors were not to play dodgeball with children, had no training in child care and used an inflated rubber ball for the game as he played it aggressively gave rise to the possibility the actions of the club were grossly negligent.

The last defense the court eliminated was whether assumption of the risk was a defense to the claims of the plaintiff. The court found that because the 18-year-old supervisor played the game, causing the injury, the risk could not be assumed because the defendant had increased the risk over those inherent in the sport. You cannot assume increased risks caused by the defendant who is arguing the defense.

Thus, even though ‘defendants generally have no legal duty to eliminate (or protect a plaintiff against) risks inherent in the sport itself,’ they may not increase the likelihood of injury above that which is inherent.

The court then stated all the ways the two defendants had increased the risk to the plaintiff.

But appellants’ evidence tended to show that the Club and Qasem increased that risk in a number of ways, including by playing on an enclosed racquetball court which was neither intended nor permitted to be used for dodgeball; by selecting rubber balls for the game; by allowing an adult untrained in childcare not only to participate in the game with the children but also to abdicate any supervisory role over them during the game; and by enabling that adult to play aggressively with the children.

The appellate court reversed the trial court and sent the matter back for trial.

So Now What?

This court worked hard to make sure the case was sent back for trial. However, the two poorly written releases gave the court the opportunity to open the door and kick the case back.

Secondly, the defendant club had created rules which it violated. It also admitted to or had rules, which were unwritten that it violated.

It is bad enough when some third party creates rules that you are forced to live by. It is just dumb to write your own rules and then violated them. It is the classic you have no one to blame but yourself.

If you have rules, and policies provide leeway to allow your staff to think, nothing in life is ever set in stone. Make sure the rules do not conflict with each other and make sure everyone knows the rules and follows them.

At the same time, remember most people can’t memorize a book, even a pamphlet. Your rules need to be written to cover your program and in a way, your staff can remember them and put them to use. Either that or issue every staff person a tablet and make sure they never answer a question without first checking to see if they are violating a rule.

Finally, have one well written release and do not try to write release language into every document, they may cancel each other out leaving you with no defenses.

What do you think? Leave a comment.

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Goins et al. v. The Family Y et al. 326 Ga. App. 522; 757 S.E.2d 146; 2014 Ga. App. LEXIS 216; 2014 Fulton County D. Rep. 909

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Lotz et al., v. The Claremont Club et al., 2013 Cal. App. Unpub. LEXIS 5748

Posted: December 12, 2014 | Author: Recreation Law | Filed under: Assumption of the Risk, California, Health Club, Legal Case, Minors, Youth, Children, Release (pre-injury contract not to sue) | Tags: Ambiguous, Assumption of risk, Day Care, Dodgeball, Gross negligence, Gym, Health club, Release, Summary judgment | Leave a comment

Lotz et al., v. The Claremont Club et al., 2013 Cal. App. Unpub. LEXIS 5748

Nicholas, a Minor, etc., Plaintiffs and Appellants, Defendants and Respondents.

B242399

COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION TWO

August 15, 2013, Opinion Filed

NOTICE: NOT TO BE PUBLISHED IN OFFICIAL REPORTS. CALIFORNIA RULES OF COURT, RULE 8.1115(a), PROHIBITS COURTS AND PARTIES FROM CITING OR RELYING ON OPINIONS NOT CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED, EXCEPT AS SPECIFIED BY RULE 8.1115(b). THIS OPINION HAS NOT BEEN CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED FOR THE PURPOSES OF RULE 8.1115.

PRIOR HISTORY: [*1]

APPEAL from a judgment of the Superior Court of Los Angeles County, No. KC061412, Peter J. Meeka, Judge.

DISPOSITION: Reversed and remanded.

CORE TERMS: dodgeball, triable, membership, ball, summary judgment, issues of fact, gross negligence, sport, playing, racquetball, played, inherent risk, hit, childcare, assumption of risk, ambiguity, risk of injury, risk of harm, rubber ball, matter of law, participating, aggressively, supervised, training, thrown, riding, player, risk doctrine, risk doctrine, evidence showed

COUNSEL: Magaña, Cathcart & McCarthy and Charles M. Finkel for Plaintiffs and Appellants.

Manning & Kass, Ellrod, Ramirez, Trester, Anthony J. Ellrod and David J. Wilson for Defendants and Respondents.

JUDGES: FERNS, J. ^*; ASHMANN-GERST, Acting P. J., CHAVEZ, J. concurred.

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

OPINION BY: FERNS, J.

OPINION

The trial court granted summary judgment in favor of defendants and respondents The Claremont Club (Club) and Adam Qasem (Qasem) on the complaint brought by minor Nicholas Lotz (Nicholas) by and through his guardian ad litem Deborah Lotz (Deborah) and Deborah individually (sometimes collectively appellants). ¹ Nicholas was injured in a dodgeball game that took place while he was in the Club’s childcare program. The trial court ruled that a release signed by Nicholas’s father barred appellants’ claims and there was no evidence showing the Club’s conduct amounted to gross negligence beyond the scope of the release. It further ruled the primary assumption of risk doctrine [*2] barred appellants’ claims.

1 We use first names for convenience only; no disrespect is intended.

We reverse. The evidence offered by appellants showed there were triable issues of material fact regarding the scope and application of multiple releases, whether the Club’s and Qasem’s conduct constituted gross negligence and whether their conduct increased the risk of harm inherent in the game of dodgeball.

FACTUAL AND PROCEDURAL BACKGROUND

Club Membership.

In 2001, Thomas Lotz (Thomas) signed The Claremont Club Membership Agreement (Membership Agreement) and completed a membership information form indicating that he was seeking a family membership for himself, Deborah and their two children. On the information form, Thomas put a check mark by some of the specified sports and activities in which he and his family were interested in participating. Dodgeball was not included among the list of activities.

The Membership Agreement included a section entitled “Waiver of Liability” that provided in relevant part: “IT IS EXPRESSLY AGREED THAT USE OF THE CLUB FACILITIES, PARTICIPATION IN CLUB-SPONSORED OUTSIDE ACTIVITIES OR EVENTS AND TRANSPORTATION PROVIDED BY THE CLUB SHALL BE UNDERTAKEN BY A MEMBER [*3] OR GUEST AT HIS/HER SOLE RISK AND THE CLUB SHALL NOT BE LIABLE FOR ANY INJURIES OR ANY DAMAGE TO ANY MEMBER OR GUEST . . . .” The provision further stated that the member voluntarily assumed the risk of personal injury and released the Club and its employees from every demand, claim or liability on account of any personal injury.

On the same day he signed the Membership Agreement, Thomas signed a separate document captioned Waiver of Liability, Assumption of Risk and Indemnity Agreement (Waiver) that contained a provision stating: “This Agreement constitutes my sole and only agreement respecting release, waiver of liability, assumption of the risk, and indemnity concerning my involvement in The Claremont Club.” The Waiver further provided in part: “I, for myself, my spouse, if any, my heirs, personal representative or assigns, and anyone claiming through or under me do hereby release, waive, discharge, and covenant not to sue The Claremont Club . . . for liability from any and all claims including the negligence of the Claremont Club, resulting in damages or personal injury . . . .” The Waiver further identified certain activities provided at the Club–again excluding dodgeball–together [*4] with the risks arising therefrom, and required Thomas to assert that his participation was voluntary and “that I knowingly assume all such risks.” The Waiver’s concluding paragraph provided for Thomas’s understanding “THAT I AM GIVING UP SUBSTANTIAL RIGHTS, INCLUDING MY RIGHT TO SUE.”

Together with a Club attorney, Club president and chief executive officer Mike Alpert helped prepare the Waiver. According to Alpert, only the Waiver–not the waiver of liability contained in the Membership Agreement–was in full force and effect at the time Thomas signed both documents. None of the documents that Thomas and Deborah signed in connection with their Club membership informed them that dodgeball would be played on Club premises.

Nicholas Is Injured in a Dodgeball Game at the Club.

The “InZone” was part of the Club’s childcare department; it provided a clubhouse environment for older children that included ping pong, foosball and video games. In-house sports and a specialized fitness room were also available as part of the InZone. A document provided to parents describing InZone activities identified a number of sports in which a child might participate; it did not mention dodgeball.

On April 13, [*5] 2005, Deborah checked 10-year-old Nicholas into the InZone between 4:30 and 5:00 p.m. No one advised Deborah or Thomas that Nicholas might be playing dodgeball as part of the InZone activities. That day, Club employee Qasem was scheduled to work at the front desk. Eighteen-year-old Qasem had worked part-time at the Club for approximately one year as a lifeguard, weight room attendant and at the front desk. He had never worked in the InZone and the Club had not provided him with any training to work with children.

At some point during his shift, Qasem left the front desk to work in the children’s fitness room. He was the only individual supervising approximately eight to 15 children, including Nicholas. One of the children suggested the group play dodgeball, and Qasem agreed. He took the children to the Club’s racquetball court because he had observed dodgeball being played there once or twice. The Club’s written policies, however, stated “[o]nly racquetball, handball, squash and Wally ball may be played on the racquetball courts.” Qasem had never played dodgeball at the Club, nor had he ever seen any written rules concerning dodgeball.

Though Qasem was uncertain whether he provided the [*6] children with any rules before they began playing the game, he may have told them to throw the ball below their waists. During the game, anywhere from three to six balls were being thrown at one time; each rubber ball was filled with air and was about the size of a soccer ball. About 20 minutes into the game, Qasem threw a ball using a sidearm motion hard and fast toward Nicholas. The ball hit Nicholas’s face and slammed his head into the wall behind him, leaving tooth marks on the wall. Nicholas suffered multiple dental injuries as a result of being hit by the ball.

At the time of the game, Qasem was six feet tall and weighed approximately 145 pounds. According to Nicholas, Qasem had been playing aggressively throughout the game. By playing in the game, Qasem had also violated the Club’s then unwritten policy that supervisors not participate in dodgeball games with the children. No one had previously been injured in a dodgeball game at the Club. After that game, Qasem was disciplined for failing to follow childcare policies and procedures, and one of his superiors instructed him not to play dodgeball at the Club.

Nicholas had previously played dodgeball at school. Though the players [*7] were instructed to not throw the ball at other players’ heads, he understood there was some risk of being hit in the head with the ball. The balls used at school, however, were similar to a Nerf ball and softer than those used at the InZone. Had Thomas and Deborah been advised that Nicholas would be playing dodgeball on a racquetball court with rubber balls, they would not have given their permission for him to do so.

The Intramural Rules of Dodgeball provide the game is one in which players try to hit others with a ball and avoid being hit themselves. “The main objective is to eliminate all members of the opposing team by hitting them with thrown balls, catching a ball thrown by a member of the opposing team, or forcing them outside of the court boundaries.” The National Dodgeball League Rules and Regulations of Play specify that a player committing a “headshot”–hitting another player in the head by a high thrown ball–will be deemed out of the game.

The Pleadings and Summary Judgment.

In June 2011, appellants filed their complaint alleging negligence and gross negligence and seeking general and special damages. They alleged that Nicholas was injured as a result of the Club’s negligently [*8] and recklessly “a. hiring, employing, training, entrusting, instructing, and supervising defendant ADAM QASEM; [¶] b. failing to adequately [] protect children under the care of defendant ADAM QASEM; [¶] c. participating in a game of dodge ball in an unreasonably forceful and dangerous manner so as to endanger the health, safety and welfare of children placed by their parents into the care of defendants.”

In December 2011, the Club and Qasem moved for summary judgment. They argued that appellants’ negligence claims were barred by Thomas’s execution of a release and express assumption of risk, and according to the assumption of risk doctrine. They further argued their actions did not rise to the level of gross negligence. In support of their motion, they submitted the Membership agreement, appellants’ discovery responses, deposition excerpts and Qasem’s declaration. They also sought judicial notice of several principles related to dodgeball rules and manner of play.

Appellants opposed the motion and filed evidentiary objections. They argued that triable issues of material fact existed concerning the scope of the Waiver, whether the Club’s conduct amounted to gross negligence and whether [*9] Nicholas’s injury was the result of an inherent risk of the game of dodgeball. They offered deposition excerpts, Club policies, medical records and several declarations in support of their arguments. Sports and Recreational Consultants president Steve Bernheim opined that the Club “did not take the proper measures to protect the children who were in its care, custody and control during the dodgeball game in which Nicholas Lotz was injured.” More specifically, the children were not provided with game-appropriate rules, the racquetball court was an insufficient space, use of the rubber balls was inappropriate and an adult should not have been playing with the children. He further opined that Qasem acted recklessly and that his conduct, coupled with the other conditions of the game, increased the risks inherent in the game of dodgeball and were outside the range of ordinary activity associated with the sport.

The Club replied and also filed evidentiary objections. At a March 2012 hearing, the trial court granted the motion. Though the trial court edited the proposed judgment to eliminate any reasons for its ruling, at the hearing the trial court first referred to childhood dodgeball experience [*10] as the basis for its decision: “When I went to school, we called it Warball, and we didn’t use Nerf balls because there weren’t any. It was a ball. When it hit you, it stung. And we all knew that. Everybody knew it. And it was just one of those games you played in school, and high school for that matter.” Turning to the evidence, the trial court construed the Waiver to apply to Thomas’s family members as well as Thomas, reasoning that the Club would have expected Thomas to be executing a release on behalf of all family members when he joined. The trial court further explained that even if it were to ignore the Waiver, appellants’ claims would be barred by the assumption of risk doctrine. It further found that the Club’s and Qasem’s conduct did not rise to the level of gross negligence as a matter of law, reasoning there was no evidence that Qasem was trying to injure Nicholas and that such an injury could have occurred in the context of any type of sport. It did not rule on any of the evidentiary objections.

Judgment was entered in June 2012, and this appeal followed.

DISCUSSION

Appellants maintain that the trial court erred in granting summary judgment and assert they offered evidence [*11] sufficient to create triable issues of fact concerning the scope and application of the Waiver, the existence of gross negligence and the application of the assumption of risk defense. We agree that triable issues of fact preclude the granting of summary judgment.

I. Standard of Review.

We review a grant of summary judgment de novo and independently determine whether the facts not subject to triable dispute warrant judgment for the moving party as a matter of law. (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849-850.) To secure summary judgment, the moving defendant must show that one or more elements of the cause of action cannot be established, or that there is a complete defense to the cause of action, and that it “is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co., supra, at p. 850.) Once that burden is met, the burden “shifts to the [other party] to show that a triable issue of one or more material facts exists as to that cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co., supra, at p. 850.)

We assume the role of the trial court and redetermine the [*12] merits of the motion. (Barber v. Marina Sailing, Inc. (1995) 36 Cal.App.4th 558, 562.) “In doing so, we must strictly scrutinize the moving party’s papers. [Citation.] The declarations of the party opposing summary judgment, however, are liberally construed to determine the existence of triable issues of fact. [Citation.] All doubts as to whether any material, triable issues of fact exist are to be resolved in favor of the party opposing summary judgment. [Citation.]” (Ibid.; accord, Hamburg v. Wal-Mart Stores, Inc. (2004) 116 Cal.App.4th 497, 502.) “Because a summary judgment denies the adversary party a trial, it should be granted with caution. [Citation.]” (Acosta v. Glenfed Development Corp. (2005) 128 Cal.App.4th 1278, 1292.) The court’s role is to focus “on issue finding; it does not resolve issues of fact. The court seeks to find contradictions in the evidence, or inferences reasonably deducible from the evidence, which raise a triable issue of material fact.” (Ibid.)

II. Appellants Raised Triable Issues of Fact as to Whether the Waiver Applied to Release Their Claims.

At the hearing on the motion, the trial court indicated that one basis for its ruling was the application of [*13] a written release. It stated: “Here, dad is signing the release on behalf of the family. Mom could have signed the release on behalf of the family and had a check and paid for the membership. And even though there are some slight twists and turns here, I guess nothing is ever completely crystal clear. I think the release really hurts the plaintiff or plaintiffs here.” Though the trial court’s comments fail to demonstrate whether it relied on the Membership Agreement or the Waiver as providing the operative release, the Club argues on appeal that the release contained in the Membership Agreement was clear and unambiguous, and applied to release appellants’ claims.

“California courts require a high degree of clarity and specificity in a [r]elease in order to find that it relieves a party from liability for its own negligence.” (Cohen v. Five Brooks Stable (2008) 159 Cal.App.4th 1476, 1488 (Cohen).) Thus, “to be effective, an agreement which purports to release, indemnify or exculpate the party who prepared it from liability for that party’s own negligence or tortious conduct must be clear, explicit and comprehensible in each of its essential details. Such an agreement, read as a whole, [*14] must clearly notify the prospective releaser or indemnitor of the effect of signing the agreement.” (Ferrell v. Southern Nevada Off-Road Enthusiasts, Ltd. (1983) 147 Cal.App.3d 309, 318.) Waiver and release forms are strictly construed against the defendant. (Lund v. Bally’s Aerobic Plus, Inc. (2000) 78 Cal.App.4th 733, 738.) But “a release need not achieve perfection” to be effective. (National & Internat. Brotherhood of Street Racers, Inc. v. Superior Court (1989) 215 Cal.App.3d 934, 938.) A release is sufficient if it “‘constitutes a clear and unequivocal waiver with specific reference to a defendant’s negligence.'” (Paralift, Inc. v. Superior Court (1993) 23 Cal.App.4th 748, 755.)

Here, Thomas represented in his membership application that he sought Club membership on behalf of his family. The release contained in the Membership Agreement provided that the member and guests assumed the risk of Club activities and released the Club from liability for participation in Club activities. A contract in which a party expressly assumes a risk of injury is, if applicable, a complete defense to a negligence action. (See Knight v. Jewett (1992) 3 Cal.4th 296, 308, fn. 4 (Knight); Sweat v. Big Time Auto Racing, Inc. (2004) 117 Cal.App.4th 1301, 1304.) [*15] Moreover, it is well settled a parent may execute a release on behalf of his or her child. (Aaris v. Las Virgenes Unified School Dist. (1998) 64 Cal.App.4th 1112, 1120 (Aaris); Hohe v. San Diego Unified Sch. Dist. (1990) 224 Cal.App.3d 1559, 1565.) By offering evidence of the Membership Agreement, the Club met its threshold burden to demonstrate a complete defense to appellants’ negligence claims.

In contrast to the trial court, however, we conclude the evidence offered by appellants showing that the release was not “crystal clear” satisfied their burden to demonstrate triable issues of material fact. As summarized in Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351, 1357: “The determination of whether a release contains ambiguities is a matter of contractual construction. [Citation.] ‘An ambiguity exists when a party can identify an alternative, semantically reasonable, candidate of meaning of a writing. [Citations.] An ambiguity can be patent, arising from the face of the writing, or latent, based on extrinsic evidence.’ [Citation.] The circumstances under which a release is executed can give rise to an ambiguity that is not apparent on the face of the release. [Citation.] [*16] If an ambiguity as to the scope of the release exists, it should normally be construed against the drafter. [Citations.]”

Here, appellants demonstrated an ambiguity by offering evidence that the Waiver–not the Membership Agreement–contained the operative release. The Waiver contained language effectively negating any other release, providing: “This Agreement constitutes my sole and only agreement respecting release, waiver of liability, assumption of the risk, and indemnity concerning my involvement in The Claremont Club. Any prior written or oral agreements, promises, representations concerning the subject matter contained in this Agreement and not expressly set forth in this Agreement have no force or effect.” Club president Alpert testified that only the Waiver was the operative agreement at the time Thomas joined the Club. The Waiver, however, inconsistently provided in one paragraph that Thomas was giving up his right to sue on behalf of his spouse and heirs, and in another paragraph that he was relinquishing only his personal right to sue. Other language in the Waiver that “I hereby assert that my participation is voluntary and that I knowingly assume all such risks” likewise [*17] suggested that the Waiver was intended to be personal only. Given appellants’ identification of an “alternative, semantically reasonable” construction of the Waiver, the evidence created a triable issue of fact concerning whether and to what extent the Waiver applied to appellants’ claims. (See Solis v. Kirkwood Resort Co. (2001) 94 Cal.App.4th 354, 360.)

Beyond the issue of whether the Waiver or the Membership Agreement contained the operative release, appellants demonstrated a triable issue of fact as to whether the language of either document contemplated the type of injuries suffered by Nicholas. Both the Membership Agreement and the Waiver released the Club from liability for personal injury from Club activities. “‘Where a participant in an activity has expressly released the defendant from responsibility for the consequences of any act of negligence, “the law imposes no requirement that [the participant] have had a specific knowledge of the particular risk which resulted in his death [or injury.]” . . . Not every possible specific act of negligence by the defendant must be spelled out in the agreement or discussed by the parties. . . . Where a release of all liability for any [*18] act of negligence is given, the release applies to any such negligent act, whatever it may have been. . . . “It is only necessary that the act of negligence, which results in injury to the releasor, be reasonably related to the object or purpose for which the release is given.“‘ [Citation.]” (Leon v. Family Fitness Center (#107), Inc. (1998) 61 Cal.App.4th 1227, 1234-1235 (Leon).) ²

2 The Leon court separately evaluated an assumption of risk provision and a general release in a health club membership agreement. (Leon, supra, 61 Cal.App.4th at pp. 1234, 1235.) It reasoned that for an assumption of the risk provision to be effective, “‘it must also appear that its terms were intended by both parties to apply to the particular conduct of the defendant which has caused the harm.'” (Id. at p. 1234.) We find this analysis sufficiently similar to that required for a general release to engage in a single evaluation.

Appellants offered evidence creating a triable issue of fact as to whether an injury from a child playing dodgeball was sufficiently related to the purpose of the release. Neither Thomas nor Deborah were ever informed that Nicholas would be playing dodgeball at the Club. Dodgeball [*19] was not identified as a Club activity in any of the Club materials. It was not listed as an activity in either the Membership Agreement or the Waiver. It did not appear on the list of Club activities in the membership information form. According to the Club’s written policies, it was not among the activities permitted to be played on the Club’s racquetball courts. Likewise, the Club maintained a policy to preclude supervisors from engaging in dodgeball games with children.

These circumstances are analogous to those in Cohen, supra, 159 Cal.App.4th 1476. There, the plaintiff was injured during a horseback ride when the guide unexpectedly caused his horse to gallop, knowing that it would cause the horses following to do the same, and the plaintiff was unable to control her galloping horse. (Id. at p. 1480.) Before riding, the plaintiff had signed a release that described some but not all of the risks inherent in horseback riding and provided that she agreed “‘to assume responsibility for the risks identified herein and those risks not specifically identified.‘ (Italics added.)” (Id. at p. 1486.) Finding this language unambiguous, the trial court granted summary judgment. (Id. at pp. 1482-1483.) [*20] The appellate court reversed, reasoning the exculpatory provision was problematic, as “[t]he ‘risks not specifically identified’ could refer to the risks inherent in horseback riding left unidentified by the phrase ‘some, but not all,’ which seems to us the most reasonable assumption, but it might also refer to risks arising out of respondent’s negligence that increase[] the inherent risks.” (Id. at p. 1486.) Stated another way, the court explained that “[t]he Release presented to appellant clearly does not unambiguously, let alone explicitly, release respondent from liability for injuries caused by its negligence or that of its agents and employees which increase a risk inherent in horseback riding.” (Id. at p. 1488.)

At a minimum, appellants’ evidence that dodgeball was an undisclosed risk and an activity contrary to the Club’s written policies raised a triable issue of fact as to whether it was a risk that was reasonably related to the purpose for which any release was given. Evidence of Qasem’s conduct likewise raised a triable issue of fact as to whether such a risk was encompassed by the Waiver. (See Cohen, supra, 159 Cal.App.4th at p. 1489 [“Nothing in the Release clearly, unambiguously, [*21] and explicitly indicates that it applies to risks and dangers attributable to respondent’s negligence or that of an employee that may not be inherent in supervised recreational trail riding,” italics omitted]; see also Sweat v. Big Time Auto Racing, Inc., supra, 117 Cal.App.4th at p. 1308 [release in favor of racetrack owner for injuries suffered while in a racetrack’s restricted area did not apply to injuries sustained after defectively constructed bleachers collapsed]; Leon, supra, 61 Cal.App.4th at p. 1235 [release that allowed the plaintiff to engage in fitness activities at a health club did not apply to injuries from a collapsed sauna bench].)

On the other hand, the circumstances here bear no similarity to those in Aaris, supra, 64 Cal.App.4th 1112, a case on which the Club relies. There, the court found that a high school cheerleader and her family assumed the risk of injuries resulting from cheerleading activities. On the basis of that finding, the court also affirmed summary judgment on the ground that a release of liability for school activities barred any claim for injuries. The court reasoned that the assumption of risk doctrine “embodies the legal conclusion that defendant [*22] owed no duty to protect appellant from the risk of harm inherent in the athletic activity. [Citation.] There being no duty, there was no negligence.” (Id. at p. 1120.) Ignoring that the Aaris court’s holding was based on a finding of no negligence rather than any application of the release, the Club emphasizes that the release applied notwithstanding its failure to specify “cheerleading,” and argues that the Membership Agreement’s and Waiver’s references to Club activities must therefore similarly be construed to encompass dodgeball. But in Aaris, the only reasonable inference to be drawn from the evidence was that the sole purpose of the release was to address injuries resulting from cheerleading. Here, Thomas and Deborah did not even know that Nicholas would be participating in a dodgeball game. Moreover, the trial court in Aaris ruled that the undisputed evidence showed “‘that the instructor did not increase the risk of harm inherent in the activity, the participants received adequate and proper[] training in technique and safety, and they were properly and reasonably supervised.'” (Id. at p. 1117.) In sharp contrast, appellants’ evidence showed that Qasem should not have been playing [*23] dodgeball and played aggressively, he violated the Club’s written policy concerning use of the racquetball court and no one else was supervising the game.

Finally, appellants offered evidence to show that the InZone was part of the Club’s childcare department. On the day of the dodgeball game, Deborah signed Nicholas in to the Club’s InZone program. Club wellness director Denise Johnson testified that she was aware children played dodgeball on the racquetball courts while being supervised under the childcare department. To the extent that the Club’s Membership Agreement or Waiver purported to release it from liability for injuries occurring in its childcare program, appellants raised a triable issue of fact as to whether such an agreement would be void against public policy. (Gavin W. v. YMCA of Metropolitan Los Angeles (2003) 106 Cal.App.4th 662, 676 [“we hold that exculpatory agreements that purport to relieve child care providers of liability for their own negligence are void as against public policy”].)

In sum, the evidence offered on summary judgment demonstrated that the Membership Agreement and/or the Waiver did not clearly and explicitly release the Club from liability for Nicholas’s [*24] injuries. In view of the ambiguities concerning whether the Membership Agreement or the Waiver applied, whether the language in either document was sufficient to cover the Club’s conduct and whether any release violated public policy, a trier of fact could find that the Club was not released from liability. (See Zipusch v. LA Workout, Inc. (2007) 155 Cal.App.4th 1281, 1288 [“if a release is ambiguous, and it is not clear the parties contemplated redistributing the risk causing the plaintiff’s injury, then the contractual ambiguity should be construed against the drafter, voiding the purported release”].) The undisputed evidence failed to show the Club and Qasem were absolved from liability as a matter of law according to the Membership Agreement or the Waiver.

III. Appellants Raised Triable Issues of Fact Whether the Club Was Liable for Gross Negligence.

In City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 751 (Santa Barbara), our State’s highest court held “that an agreement made in the context of sports or recreational programs or services, purporting to release liability for future gross negligence, generally is unenforceable as a matter of public policy.” Relying on Santa [*25] Barbara, appellants opposed the Club’s summary judgment motion on the alternative ground that, even if the Club’s most comprehensive release language was unambiguous, there was a triable issue of fact as to whether the Club’s conduct amounted to gross negligence. The trial court ruled: “It is not gross negligence. He wasn’t trying to injure the child on purpose, any more than a child would be injured playing hockey or soccer, or anything like that.” Again, we disagree.

California courts define “‘gross negligence'” “as either a ‘”‘want of even scant care'”‘ or ‘”‘an extreme departure from the ordinary standard of conduct.'”‘ [Citations.]” (Santa Barbara, supra, 41 Cal.4th at p. 754; accord, Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 857.) Gross negligence “connotes such a lack of care as may be presumed to indicate a passive and indifferent attitude toward results.” (Calvillo-Silva v. Home Grocery (1998) 19 Cal.4th 714, 729, disapproved on other grounds in Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 853, fn. 19.) In contrast to willful misconduct, gross negligence does not require an intent to do harm or to act with absolute disregard of the consequences. (Meek v. Fowler (1935) 3 Cal.2d 420, 425; [*26] see also Hawaiian Pineapple Co. v. Ind. Acc. Com. (1953) 40 Cal.2d 656, 662 [“While gross negligence may involve an intent to perform the act or omission, wilful misconduct involves the further intent that the performance be harmful or that it be done with a positive, active and absolute disregard of the consequences”].) Though not always, “[g]enerally it is a triable issue of fact whether there has been such a lack of care as to constitute gross negligence. [Citations.]” (Decker v. City of Imperial Beach (1989) 209 Cal.App.3d 349, 358; accord, Santa Barbara, supra, at pp. 767, 781.)

Appellants offered sufficient evidence to create a triable issue of fact as to whether the Club’s and Qasem’s conduct amounted to gross negligence. According to the undisputed evidence, while the Club’s policies prohibited dodgeball being played on the racquetball courts, Club employees–including the childcare director–knew the courts were used for children’s dodgeball games. Nonetheless, none of the Club’s materials identified dodgeball as an available activity. Consistent with the Club’s failure to acknowledge dodgeball as an ongoing activity, it failed to promulgate rules to insure the game was played [*27] safely. When Nicholas was dropped off at the InZone program, no one advised his parents that he might play dodgeball. In this particular instance, children initiated a dodgeball game while being supervised by an 18-year-old front desk clerk who had no childcare training. Qasem selected inflated rubber balls for the game and participated aggressively in the game with the children, even though the Club’s policy was that supervisors not play dodgeball. Nicholas was injured after Qasem threw the ball extremely hard and extremely fast, using a sidearm motion.

On the basis of this evidence, appellants offered Bernheim’s expert opinion that “the injury to Nicholas Lotz occurred during an extreme departure from what must be considered as the ordinary standard of conduct when children are playing dodgeball and are supposed to be . . . supervised.” We agree that appellants’ evidence was sufficient to raise a triable issue of fact as to whether the Club’s and Qasem’s conduct was an extreme departure from ordinary care or, at a minimum, demonstrated passivity and indifference toward results. A trier of fact could find gross negligence on the basis of the Club’s failure to address the repeated violation [*28] of its own policy prohibiting dodgeball play on the racquetball courts, failure to implement rules or policies designed to protect those playing dodgeball and failure to provide any training to individuals assigned to supervise the children in its childcare program. Triable issues existed as to whether the Club’s and Qasem’s conduct was grossly negligent and therefore outside the scope of any release in either the Membership Agreement or the Waiver.

IV. Appellants Raised Triable Issues of Fact Whether the Assumption of Risk Doctrine Barred Liability.

As a further basis for granting summary judgment, the trial court determined that the Club met its burden to show the primary assumption of risk doctrine was a viable defense and that appellants failed to offer any effective rebuttal. It analogized the circumstances here to those in a previous case in which it found the doctrine barred recovery to a high school student injured during a soccer game. We fail to see the analogy.

“Primary assumption of risk occurs where a plaintiff voluntarily participates in a sporting event or activity involving certain inherent risks. For example, an errantly thrown ball in baseball or a carelessly extended [*29] elbow in basketball are considered inherent risks of those respective sports. [Citation.] Primary assumption of risk is a complete bar to recovery. [Citation.] [¶] Primary assumption of risk is merely another way of saying no duty of care is owed as to risks inherent in a given sport or activity. The overriding consideration in the application of this principle is to avoid imposing a duty which might chill vigorous participation in the sport and thereby alter its fundamental nature. [Citation.]” (Wattenbarger v. Cincinnati Reds, Inc. (1994) 28 Cal.App.4th 746, 751-752, citing Knight, supra, 3 Cal.4th 296.) “Knight however does not grant unbridled legal immunity to all defendants participating in sporting activity. The Supreme Court has stated that ‘. . . it is well established that defendants generally do have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport.‘ ([Knight, supra,] 3 Cal.4th at pp. 315-316, italics added.) Thus, even though ‘defendants generally have no legal duty to eliminate (or protect a plaintiff against) risks inherent in the sport itself,’ they may not increase the likelihood of injury above that which is [*30] inherent. (Id. at p. 315.)” (Campbell v. Derylo (1999) 75 Cal.App.4th 823, 827.) Thus, “when the plaintiff claims the defendant’s conduct increased the inherent risks of a sport, summary judgment on primary assumption of risk grounds is unavailable unless the defendant disproves the theory or establishes a lack of causation. [Citations.]” (Huff v. Wilkins (2006) 138 Cal.App.4th 732, 740.)

Much of appellants’ evidence that we deemed sufficient to raise a triable issue of fact on the question of gross negligence likewise created a triable issue as to whether the Club and Qasem increased the risk of harm inherent in the game of dodgeball. ³ Certainly, being hit by a ball is one of the objectives of and hence an inherent risk in the game of dodgeball. But appellants’ evidence tended to show that the Club and Qasem increased that risk in a number of ways, including by playing on an enclosed racquetball court which was neither intended nor permitted to be used for dodgeball; by selecting rubber balls for the game; by allowing an adult untrained in childcare not only to participate in the game with the children but also to abdicate any supervisory role over them during the game; and by enabling [*31] that adult to play aggressively with the children. Given the totality of the circumstances, we cannot say, as a matter of law, that Nicholas assumed the risk of being hit in the head with a ball.

3 We acknowledge that the application of the primary assumption of risk doctrine is a question of law. (Knight, supra, 3 Cal.4th at p. 313.) But where a defendant engages in conduct that is not an inherent risk of the sport and the imposition of a duty of care will neither alter the nature of nor chill participation in the sport, the question becomes one of ordinary negligence, with the remaining elements beyond duty to be determined by a trier of fact. (Yancey v. Superior Court (1994) 28 Cal.App.4th 558, 565-567.)

Other courts have similarly reversed a grant of summary judgment where the plaintiff’s evidence raised a triable issue of fact as to whether the defendant’s conduct increased the inherent risks in a sport or other recreational activity. Lowe v. California League of Prof. Baseball (1997) 56 Cal.App.4th 112 is particularly instructive. There, the plaintiff filed suit after he was injured by a foul ball while watching a baseball game, and the trial court granted summary judgment, finding [*32] the doctrine of primary assumption of risk barred his claims. (Id. at p. 120.) In reversing, the appellate court relied on evidence showing the plaintiff was hit when he turned toward a team mascot who had repeatedly tapped his shoulder. (Id. at pp. 117-118, 123.) The court explained that while foul balls represent an inherent risk to spectators attending a baseball game, “we hold that the antics of the mascot are not an essential or integral part of the playing of a baseball game. In short, the game can be played in the absence of such antics. Moreover, whether such antics increased the inherent risk to plaintiff is an issue of fact to be resolved at trial.” (Id. at p. 123; see also Vine v. Bear Valley Ski Co. (2004) 118 Cal.App.4th 577, 591 [though skiers assume the risk of injury from the sport, triable issue of fact existed whether ski resort’s jump design increased the risk of harm]; Morgan v. Fuji Country USA, Inc. (1995) 34 Cal.App.4th 127, 134 [while a golfer assumes the risk of being hit by a golf ball, golf course owner owes a duty to minimize that risk, and the plaintiff raised a triable issue of fact as to whether that duty was breached where evidence showed the design [*33] of certain holes may have increased that risk].)

We find no merit to the Club’s and Qasem’s argument that appellants’ evidence demonstrated merely that their conduct may have increased the severity of Nicholas’s injuries as opposed to increasing the risk of injury. In Calhoon v. Lewis (2000) 81 Cal.App.4th 108, the plaintiff suffered injury when he fell off his skateboard and hit a metal pipe protruding from a planter in the defendants’ driveway. Finding the primary assumption of risk doctrine barred his claims, the court rejected the plaintiff’s argument that the concealed metal pipe increased his risk of harm: “[The plaintiff] was injured because he fell. As [he] concedes, falling is an inherent risk of skateboarding, and the presence of the pipe or the planter had nothing to do with his falling down. The fact that [his] injuries were more severe than they would have been if the pipe had not been in the planter does not make the assumption of risk doctrine inapplicable. The Knight exception applies when the defendant increased the risk of injury beyond that inherent in the sport, not when the defendant’s conduct may have increased the severity of the injury suffered.” (Id. at p. 116.) [*34] Here, in contrast, appellants’ evidence showed that the Club and Qasem increased the risk of injury by initiating the dodgeball game in which Nicholas participated. This was not the type of situation where Nicholas would have been playing dodgeball absent the Club’s and Qasem’s involvement. Moreover, the evidence raised a triable issue of fact as to whether the Club and Qasem increased the risk of injury by permitting dodgeball play on the racquetball court, by failing to adopt rules for safe play, by Qasem’s failing to act as a supervisor during the game, by his selecting rubber balls for the game and by his participating aggressively in the game. The Club and Qasem were not entitled to summary judgment on the ground the primary assumption of risk doctrine barred appellants’ claims.

DISPOSITION

The judgment is reversed and the matter is remanded with directions for the trial court to vacate its order granting summary judgment and to enter a new order denying summary judgment. Appellants are entitled to their costs on appeal.

, J. ^*

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

FERNS

We concur:

, Acting [*35] P. J. ASHMANN-GERST , J. CHAVEZ

Georgia court finds no requirement for an employee to intervene when higher trained first aid providers are present.

Posted: November 24, 2014 | Author: Recreation Law | Filed under: Georgia, Health Club, Minors, Youth, Children | Tags: American Heart Association, Automated external defibrillator, duty, first aid, Fraud, GA, Georgia, Higher Medical Authority, Negligence, Proximate Causation, Proximate Cause, y, YMCA | Leave a comment

Sixteen-year-old collapsed at the defendant’s YMCA. A sheriff’s deputy and EMT provided CPR. The court held that the congenital heart disease had no causal connection to Y’s negligence if there was any. The court also held the Y was not negligent because the employees did nothing, because highly trained medical personnel were already attending to the victim.

State: Georgia, Court of Appeals

Plaintiff: James and Jennifer Goins

Defendant: The Family YMCA

Plaintiff Claims: negligence and fraud

Defendant Defenses: No duty and proximate causation

Holding: for the defendant

Year: 2014

The plaintiffs are the parents of a sixteen-year-old who died walking on a treadmill at the defendant Family Y (YMCA). It was determined the deceased died from congenital heart disease.

The plaintiffs brought their son to the YMCA to get ready for baseball season and to lose some weight. They chose the Y because it was a safe and positive environment with adequate well-trained employees “on hand at all times and that these employees would have access to life-saving equipment and would know how to use it.”

(This is an example of looking at the website and brochure post-accident and looking for information or is this why they picked the Y?)

An employee of the Y saw the deceased fall and immediately called 911. She did not go to the deceased because she said there was a sheriff’s deputy who was a first responder and had another first aid training attending to the deceased. Soon thereafter, an EMT also assisted the deceased.

The parents, plaintiff’s, sued the defendant because their son:

…was under the “personal care” of a Y employee who had no CPR or first aid training, in spite of representations made by the fitness center. The Goins also claimed that the Y employees stood around and did nothing after Brant collapsed. The complaint alleged that the AED or defibrillator was locked away and not available in case of emergency. There was also a fraud count in which the Goins contended that the Y made misrepresentations to them that led them to believe that the Y was a “safe and positive” environment for their son.

The trial court dismissed their claims, and the plaintiff’s appealed.

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

The first issue was whether there was a duty to render first aid and whether the representations that the Y misled the parents. The court first outlined the requirements to prove negligence in Georgia.

The essential elements of a negligence claim are the existence of a legal duty; breach of that duty; a causal connection between the defendant’s conduct and the plaintiff’s injury; and damages. Thus, the threshold issue in a negligence action is whether and to what extent the defendant owes a legal duty to the plaintiff. This issue is a question of law.

The plaintiffs argued there was a special relationship between themselves and the Y because the Y assumed a special duty to supervise minor children. The appellate court shot down that argument with one sentence. “Brant Goins was 16 years of age and the only duty undertaken by the Y was to provide him with a personal trainer to help him lose weight. It is undisputed that this is what occurred.”

The second issue on appeal was the negligence claim. As stated above to prove negligence, there must be a connection between the injury and the breach of the duty. Here the duty was alleged to be a lack of training, as advertised by the Y., However, the court could not find a connection. CPR would not have saved the deceased’s life and the people attempting to do so were better trained then the employees. “…the [plaintiff’s] cannot show a causal connection between Mason’s or any other employee’s lack of CPR training and Brant Goins’ death.” A casual connection is less than the proximate causation required to prove negligence.

It is undisputed that there was an emergency medical technician, and a deputy sheriff trained as a first-responder present at the time of Brant’s collapse. There would have been no reason for a Y employee to interfere with the care being given by the two qualified first responders.

The final issue was the fraud claim. The fraud claim was based on the allegations that the Y promised the plaintiff’s that the YMCA was a safe and positive environment and that there would be adequate and well-trained employees, and the employees would have access to life-saving equipment.

There was not argument that this did not occur. The plaintiff’s then tried to tie together the fact these things did not occur and that because their son had died, proving negligence. (The absence of facts does not prove a point in most cases and those facts that exist must link to each other in a legal way.) However, the court did not find this to be proved either.

Even assuming that the Goins could establish the other elements of their fraud claim, they can show no damage as the result of this claimed fraud. The EMT and the deputy were clearly the most highly trained people present in administering CPR. Neither called for a defibrillator and both testified that a defibrillator, would not be used on someone with a pulse who was still breathing.

Not brought up in the decision on this argument was proximate causation. There was no connection between the facts that if the Y had not done any of the issues pled in the fraud that the misrepresentation had anything to do with the death of their son.

The appellate court affirmed the lower court’s decision.

So Now What?

First, it is great to have a court require a special relationship or acceptance of a duty that can be proved, not just argued and based on trying to tie loose facts together. The Y’s acceptance of the deceased minor to provide a trainer came with no other requirements, and the Y did nothing to create additional duties which it could be held too.

This is critical that in bringing in business, you don’t make promises that either you can’t complete or that may come back to haunt you.

Second, although specifically identified, the issue of higher medical care prevailed. I’ve never seen this issue argued in a case, that the person with the higher medical care, once they step in, are in charge and owes any duty. We are all taught this issue in first aid classes, but courts have never identified it. Here the court uses the argument and supports it.

Too often we start any defense of a lawsuit by lining up the defenses. All too often in the outdoor recreation community, we need to see if (1) we did anything wrong and (2) is there a connection with what was done incorrectly or not done and the injury. That is, was a duty breached and was there a proximate connection between the breach and the injury.

Amazing how a well-argued decision can be so short.

What do you think? Leave a comment.

Jim Moss

Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, and outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us

Outdoor Recreation Insurance, Risk Management, and Law

Jim is the author or co-author of eight books about legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management, and Law. To Purchase Go Here:

To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.

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Goins et al. v. The Family Y et al. 326 Ga. App. 522; 757 S.E.2d 146; 2014 Ga. App. LEXIS 216; 2014 Fulton County D. Rep. 909

Posted: November 8, 2014 | Author: Recreation Law | Filed under: First Aid, Georgia, Health Club, Legal Case | Tags: Appeal, duty, first aid, Fraud, GA, Georgia, Higher Medical Authority, Judgment as a matter of law, Negligence, Proximate Causation, Proximate Cause, YMCA | 1 Comment

To Read an Analysis of this decision see

Georgia court finds no requirement for an employee to intervene when higher trained first aid providers are present.

Goins et al. v. The Family Y et al. 326 Ga. App. 522; 757 S.E.2d 146; 2014 Ga. App. LEXIS 216; 2014 Fulton County D. Rep. 909

Goins et al. v. The Family Y et al.

A13A1778.

COURT OF APPEALS OF GEORGIA

326 Ga. App. 522; 757 S.E.2d 146; 2014 Ga. App. LEXIS 216; 2014 Fulton County D. Rep. 909

March 25, 2014, Decided

PRIOR HISTORY: Negligence, etc. Richmond Superior Court. Before Judge Annis.

DISPOSITION: [***1] Judgment affirmed.

COUNSEL: Richard H. Goolsby, Sr., for appellants.

Dodson & Associates, Charles R. Beans, for appellees.

JUDGES: ANDREWS, Presiding Judge. Dillard and McMillian, JJ., concur.

OPINION BY: ANDREWS

OPINION

[*522] [**147] Andrews, Presiding Judge.

James and Jennifer Goins sued The Family YMCA (the Y) after their 16-year-old son Brant collapsed while walking on a treadmill at its facility. Brant died before EMTs arrived, and it was later determined that he suffered from a congenital heart disease. The trial court granted the Y’s motion for summary judgment on the Goins’ claims of negligence and fraud. For reasons that follow, we affirm.

The following facts are undisputed. The Goins brought their son Brant to the Y to get him into shape for baseball season and to lose some weight. Brant began training with Greg Mason, a certified personal trainer, and there was no indication at the time that Brant was not in good physical condition. The Goins do not contend that there was anything inappropriate in the level or intensity of the workouts suggested by Mason.

On the day in question, Brant had been walking on the treadmill for a short time when he collapsed. An employee who saw him fall immediately called 911. This employee was trained in CPR, but stated that she did not go over to Brant because there were two “paramedics” [***2] with him. One of the two men was a deputy sheriff who had been a first responder for eight years, was trained in advanced CPR, first aid, and also had life saving training in the Marine Corps. The deputy said that he checked for a pulse and saw that Brant was still breathing. The other man who went over to Brant after he collapsed was an EMT who testified that the deputy was with Goins when he went over to see if he could help. He stated that Brant’s airway was open and he saw him take a breath, but then Brant [*523] appeared to stop breathing. The deputy also testified that he saw Brant take a large breath and then stop breathing. At that point, the deputy and the EMT began CPR. Simultaneously, the ambulance and EMTs arrived on the scene.

The Goins filed this suit, claiming that the Y was negligent in the death of their son because he was under the “personal care” of a Y employee who had no CPR or first aid training, in spite of representations made by the fitness center. The Goins also claimed that the Y employees stood around and did nothing after Brant collapsed. The complaint alleged that the AED or defibrillator was locked away and not available in case of emergency. There was [***3] also a fraud count in which the Goins contended that the Y made misrepresentations to them that led them to believe that the Y was a “safe and positive” environment for their son.

The trial court granted the Y’s motion for summary judgment in a two-sentence order. This appeal followed.

[HN1] To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A [***4] defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. The burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

Boller v. Robert W. Woodruff Arts Center, 311 Ga. App. 693, 693-694 (716 SE2d 713) (2011).

1. The Goins first argue that the trial court erred in finding there was no duty to render first aid to a minor child in the Y’s care when false representations had been made to the child’s parents.

[HN2] The essential elements of a negligence claim are the existence of a legal duty; breach of that duty; a causal connection between the defendant’s conduct and the plaintiff’s injury; and damages. Thus, the threshold issue in a negligence [*524] action is whether and to what extent the defendant [***5] owes a legal duty to the plaintiff. This issue is a question of law.

Boller, supra at 695-696. In Boller, plaintiff

claimed that the Arts Center breached its duty of care to her husband, an [**148] invitee, by its failure to have on site either an ambulance or an officer operating an automatic external defibrillator device (“AED”) and by its failure to maintain a safety and security plan to govern the actions of employees and security personnel during a medical emergency.

Id. at 695. This Court held that

the long-established general rule is that [HN3] “[a] person is under no duty to rescue another from a situation of peril which the former has not caused,” even when the peril is foreseeable. We conclude that this case is controlled by our decision in Rasnick v. Krishna Hospitality, where we held that the defendant innkeeper had no legal duty to comply with a wife’s requests that it attempt a rescue of its guest, her husband, from his medical peril. In that case, the defendant did not create the decedent’s underlying medical condition. Similarly, in the case at bar, Boller does not allege that the Arts Center or the concert it sponsored caused her husband’s sudden attack of cardiac arrest.

(Footnotes omitted.) Id. at 696.

Nevertheless, [***6] the Goins argue that a “special relationship” existed in this case, because the Y assumed a special duty to supervise minor children. The Goins cite to several cases not on point. See, e.g., Bull Street Church of Christ v. Jensen, 233 Ga. App. 96 (504 SE2d 1) (1998) (four-year-old victim molested at church); Wallace v. Boys Club of Albany, 211 Ga. App. 534 (439 SE2d 746) (1993) (five-year-old boy abducted from summer camp after employees assured parents that they would watch child and keep track of his whereabouts). (1) Brant Goins was 16 years of age and the only duty undertaken by the Y was to provide him with a personal trainer to help him lose weight. It is undisputed that this is what occurred.¹ There is no merit to this enumeration.

1 The Goins claim that when they signed their son up for a personal trainer at the YMCA, Greg Mason was misrepresented to them as a “certified” personal fitness trainer. This argument is puzzling. The undisputed evidence was that Mason was a certified personal trainer.

[*525] 2. Likewise, for the same reasons discussed in Division 1, the (2) trial court did not err in granting summary judgment on appellants’ negligence claim. Further, and equally important, the Goins [***7] cannot show a causal connection between Mason’s or any other employee’s lack of CPR training and Brant Goins’ death. The Goins’ statement of facts does not refer to the deposition testimony of the deputy sheriff or the EMT. It is undisputed that there was an emergency medical technician and a deputy sheriff trained as a first responder present at the time of Brant’s collapse. There would have been no reason for a Y employee to interfere with the care being given by the two qualified first responders.

3. Next, the Goins claim that the trial court erred in finding no issues of fact on their fraud claim. The Goins alleged in their complaint that they were told that “THE FAMILY Y was a safe and positive environment.” (3) They contend that it was represented to them that there would be adequate well-trained employees on hand at all times and that these employees would have access to life-saving equipment and would know how to use it.

[HN4] To survive a motion for summary judgment on a fraud count, some evidence must support each of the five elements, which are: a false representation by a defendant; scienter; intention to induce the plaintiff to act or refrain from acting; justifiable reliance [***8] by plaintiff; and damage to the plaintiff.

Wertz v. Allen, 313 Ga. App. 202, 207-208 (721 SE2d 122) (2011).

Judgment affirmed. Dillard and McMillian, JJ., concur.

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Well written decision from Wyoming defines release law and how releases should be written.

Posted: July 7, 2014 | Author: Recreation Law | Filed under: Health Club, Release (pre-injury contract not to sue), Wyoming | Tags: Defendant, Gym, Health club, Lat-Pull-Down, Massengill, Negligence, Plaintiff, Rehabilitation, S.M.A.R.T., Sports medicine, Trial court, Wyoming, Wyoming Supreme Court | 2 Comments

This case is interesting because one of the attempts to remove the release from the decision was a claim the plaintiff was at the defendant gym working out because he was told to by a physician, and the gym was owned by a different physician.

Massengill, v. S.M.A.R.T. Sports Medicine Clinic, P.C., 996 P.2d 1132; 2000 Wyo. LEXIS 21

Plaintiff: James Massengill and Kaylea Massengill

Defendant: S.M.A.R.T. Sports Medicine Clinic, P.C.

Plaintiff Claims: Negligence, loss of consortium

Defendant Defenses: Release

Holding: For the defendant

The plaintiff was injured when a pin in a lat-pull-down machine that secured the weights came out, and he fell backwards injuring his wrist. The plaintiff sued, and the defendant raised the defense of release.

The plaintiff was told by his physician to exercise more. One day while at a drugstore, he had met an owner of the defendant gym, a physician, who talked to him about the gym.

The plaintiff and his wife went to the gym. They were given a release and told to take it home and read it. Three days later the plaintiff’s came back, signed the release and began to use the facilities.

The plaintiff had not asked for instructions on the lat-pull-down machine and did not ask for any because he had used one previously. He had been using the particular machine for a month and had noticed that the pin did not appear to fit when he was injured.

The trial court ruled the release was valid and barred the claims of the plaintiffs, dismissing the case. The plaintiff’s appealed. This case is based in Wyoming, which only has trial courts and the Wyoming Supreme Court, in intermediate appellate courts.

Summary of the case

The court first looked at the language of the release, to determine if the language was clear and unequivocal.

Our reading of the Agreement and Release convinces us that the intention of S.M.A.R.T., and the Massengills is expressed in clear and unequivocal language. The language clearly assigns the risk to members who agree to be liable for any and all risks. The Agreement and Release continues with an unequivocal statement that S.M.A.R.T. shall not be liable for any injuries or damages to any member or the member’s property, including those caused by the negligence of S.M.A.R.T.

The court found the language was clear and unequivocal as well as broad and specially released the defendant from claims and actions for negligence.

The court then examined the release based on contract law. Releases are contracts and are interpreted using traditional contract principles. The entire document is examined as a whole.

The language of the Agreement and Release is clear in manifesting an intention to release S.M.A.R.T. and those involved with the facility from liability; it specifically states that S.M.A.R.T. will not be held liable for “those damages resulting from acts of negligence on the part of S.M.A.R.T. SPORTS, its officers or agents.”

Wyoming has four factors to examine to determine if a release is valid.

(1) whether a duty to the public exists;

(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

The court found the release in question was properly reviewed by the trial court, and the release met all four tests. The court then looked at the plaintiff’s claims the release violated public policy. Under Wyoming law, a duty to the public exists “if the nature of the business or service affects the public interest, and the service performed is considered an essential service.” A release that affecting a public interest giving rise to a duty to the public is one that:

“concerns a business of a type generally thought suitable for public regulation. The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public. The party holds himself out as willing to perform this service for any member of the public who seeks it * * *. As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services.”

In Wyoming, this list of businesses would be “common carriers, hospitals and doctors, public utilities, innkeepers, public warehousemen, employers, and services involving extra-hazardous activities.”

A health club or gym is recreational in nature and do not meet the requirements and do not qualify as a business suitable for public regulation. A gym or health club is not essential.

The services offered by S.M.A.R.T. to its members were those of a private recreational business which did not qualify as suitable for public regulation because they did not affect the public interest nor could they be considered as necessary or essential….

Then court then looked at the plaintiff’s claims that he was at the gym for medical reasons. However, the court could find no evidence that the plaintiff was at the gym engaging in rehabilitation.

The court then looked at the plaintiff’s claim that there was a disparity of bargaining power between the parties which should void the release. However, this argument also failed.

Since membership in a private recreational facility such as S.M.A.R.T. is purely optional and does not qualify as an essential service, no decisive bargaining advantage exists. “A disparity of bargaining power will be found when a contracting party with little or no bargaining strength has no reasonable alternative to entering the contract at the mercy of the other’s negligence.

The plaintiff’s raised one final argument that claimed the Wyoming Recreational Safety Act, Wyo. Stat. Ann. §§ 1-1-121 to 1-1-123:

…creates a statutory duty on the part of providers of a sport or recreational opportunity because it preserves actions based upon negligence if damage or injury is not the result of an inherent risk of the sport or recreational opportunity.

The court called this a convoluted argument and did not agree with the argument.

The final argument was based on the wife’s claim for loss of consortium. The court held there were two different ways this claim also failed. The first was the wife signed a release at the same time as her husband; the plaintiff and the release stopped her suit. Also because her claim of loss of consortium is derivative, meaning only can exist if the original claim exists, then her claim fails also.

The record reflects that Massengill’s participation was purely recreational and S.M.A.R.T. did not owe him a public duty. S.M.A.R.T. is not engaged in a type of business generally thought suitable for public regulation, and Massengill was engaged in a recreational activity not an activity pursuant to a physician’s order.

The court upheld the trial courts dismissal of the claims.

So Now What?

This is a great decision to assist in writing a release in Wyoming. Of interest was the fact the court pointed out, the plaintiffs were given three days to review the release before signing.

The four requirements for a release are similar to most other states. How you deal with the issue of someone at your facility for health or rehabilitation reasons might present a problem.

What do you think? Leave a comment.

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Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2

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Massengill, v. S.M.A.R.T. Sports Medicine Clinic, P.C., 996 P.2d 1132; 2000 Wyo. LEXIS 21

Posted: July 7, 2014 | Author: Recreation Law | Filed under: Health Club, Legal Case, Release (pre-injury contract not to sue), Wyoming | Tags: Government, Gym, Health club, Lat-Pull-Down, Massengill, Rehabilitation, S.M.A.R.T., Sports medicine, Wyoming, Wyoming Supreme Court | Leave a comment

Massengill, v. S.M.A.R.T. Sports Medicine Clinic, P.C., 996 P.2d 1132; 2000 Wyo. LEXIS 21

James Massengill and Kaylea Massengill, Appellants (Plaintiffs), v. S.M.A.R.T. Sports Medicine Clinic, P.C., Appellee (Defendant).

No. 98-150

SUPREME COURT OF WYOMING

996 P.2d 1132; 2000 Wyo. LEXIS 21

February 14, 2000, Decided

PRIOR HISTORY: [**1] Appeal from the District Court of Laramie County. The Honorable Nicholas G. Kalokathis, Judge.

DISPOSITION: Affirmed.

COUNSEL: Representing Appellants: Robert A. Hampe, Cheyenne, Wyoming (Withdrew pursuant to an Order of Suspension Upon Consent entered in the Wyoming Supreme Court on June 18, 1999.)

Representing Appellee: John I. Henley of Vlastos, Brooks, Henley & Drell, P.C., Casper, Wyoming.

JUDGES: Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and TAYLOR, ^* JJ.

* Retired November 2, 1998.

OPINION BY: THOMAS

OPINION

[*1132] THOMAS, Justice.

The only issue in this case is whether a waiver of liability in a contract between S.M.A.R.T. Sports Medicine Clinic, P.C. (S.M.A.R.T.) and James Massengill (Massengill) is enforceable under the standards adopted in Schutkowski v. Carey, 725 P.2d 1057 (Wyo. 1986) and followed in later cases. Massengill was using a lat-pull-down machine at S.M.A.R.T. when a pin used to secure the weights fell out. Apparently the pin did not fit properly in the machine, and when the pin fell out, Massengill fell over backwards injuring his wrist. In various statements of the [*1133] issues, Massengill attacks the validity of the waiver of liability on the grounds [**2] that it violated public policy; the business of S.M.A.R.T. is suitable for public regulation; the use of the premises at the time of injury by Massengill is not material; the question of duty is one that must be determined by a trier of fact; and S.M.A.R.T. owed a statutory duty to Massengill which invalidates the waiver. Our review of the record and legal precedent in Wyoming persuades us that the district court ruled correctly that there is no genuine issue of material fact in this case, and S.M.A.R.T. is entitled to judgment as a matter of law. The Order Granting Defendant’s Motion for Summary Judgment is affirmed.

In the Appellants’ Supreme Court Brief, filed on behalf of James Massengill and Kaylea Massengill (collectively the Massengills), these issues are stated:

Issue I

Did the district court error [sic] in validating the “waiver of liability” in the “sports specific training and advanced rehab agreement and release[“] due to the fact that:

(A) The release violated public policy,

(B) The business operated by appellee is suitable for public regulation, and

(C) Plaintiff J. Massengill was engaged in non therapeutic activities on the premises of [**3] the medical clinic has no bearing on whether the release should be validated or not?

Issue II

Is the duty issue in this case purely a question of law where the basic facts are undisputed or is the duty issue one which can only be determined by the trier of fact?

Issue III

Did appellee owe a statutory duty of care to appellant which would invalidate the waiver incorporated in the sports specific training and advanced rehabilitation agreement & release?

In the Brief of Appellee S.M.A.R.T. Sports Medicine Clinic, P.C., the issues are stated in this way:

Was the waiver of liability executed by the Appellants valid[?]

(i) Was the Appellee’s waiver language inclusive and unambiguous as required by prior Wyoming Supreme Court case law; [or]

(ii) Is the waiver language of the Appellee contrary to public policy[?]

One evening James Massengill engaged in a conversation at a Cheyenne drugstore with the equity owner of S.M.A.R.T., a physician in Cheyenne. Massengill knew that S.M.A.R.T. had a weight room, and had seen recent advertisements to the effect that the facility offered personal trainers to assist members. In the course of a brief [**4] conversation, Massengill mentioned his interest in S.M.A.R.T.’s facilities, and the physician suggested he come over and try it out. A month or two following the conversation, Massengill went to S.M.A.R.T. and toured the facilities. The purpose of his initial visit was to assure himself that the equipment met his need, which was to get in better condition.

After he had been shown the facilities and the equipment, Massengill was given a Sports Specific Training and Advanced Rehabilitation Agreement and Release (Agreement and Release) to take home and review. Three days later, both Massengill and his wife executed the Agreement and Release, and they began using the facilities. Massengill was present at S.M.A.R.T. almost every day, and he had been using the lat-pull-down machine for nearly a month prior to his injury. He had not asked any questions about using the machine because he had used one previously. On March 13, 1996, Massengill was warming up on the machine, and he noticed that the pin holding the weights was shaped like a “T” rather than the longer “I” usually used. When Massengill pulled the bar down, the pin holding the weights popped out, and he fell over backwards, hitting [**5] his left hand and injuring his wrist.

On May 29, 1997, the Massengills filed their Complaint for Negligence and Damages. The first count of the Complaint for Negligence and Damages was couched in terms of alleged negligence causing injury to James Massengill, and the second count was couched in terms of recovery by Kaylea Massengill [*1134] for loss of consortium based upon her husband’s injuries. Various procedural steps, including discovery, followed the Answer by S.M.A.R.T., which included the affirmative defense of waiver and the affirmative defense that Kaylea Massengill’s claims were derivative of James Massengill’s claim. On October 3, 1997, there was filed by facsimile a Defendant’s Motion for Summary Judgment accompanied by a Memorandum in Support of Defendant’s Motion for Summary Judgment. Additional procedural steps ensued, and on February 2, 1998, the district court entered an Order Granting Defendant’s Motion for Summary Judgment.

The district court ruled that the exculpatory clause, including the release and waiver, was not ambiguous and was enforceable. Since the premise for the grant of the summary judgment by the district court was the language contained in the Agreement [**6] and Release, the district court ruled implicitly that any other issues of fact, genuine or not, were not material. The Massengills have appealed from the Order Granting Defendant’s Motion for Summary Judgment.

In Mercado v. Trujillo, 980 P.2d 824, 825-26 (Wyo. 1999), we summarized our rules with respect to review of summary judgments:

“‘When [HN1] a motion for summary judgment is before the supreme court, we have exactly the same duty as the district judge; and, if there is a complete record before us, we have exactly the same material as did he. We must follow the same standards. The propriety of granting a motion for summary judgment depends upon the correctness of a court’s dual findings that there is no genuine issue as to any material fact and that the prevailing party is entitled to judgment as a matter of law. This court looks at the record from the viewpoint most favorable to the party opposing the motion, giving to him all favorable inferences to be drawn from the facts contained in affidavits, depositions and other proper material appearing in the record.'” Reno Livestock Corporation v. Sun Oil Company (Delaware), Wyo., 638 P.2d 147, 150 (1981). [**7] See also, Blackmore v. Davis Oil Company, Wyo., 671 P.2d 334, 336 (1983).

“A [HN2] summary judgment should only be granted where it is clear that there are no issues of material facts involved and that an inquiry into the facts is unnecessary to clarify the application of law. Johnson v. Soulis, Wyo., 542 P.2d 867 (1975). A material fact is one which has legal significance. Johnson v. Soulis, supra. It is a fact which would establish a defense. Wood v. Trenchard, Wyo.[,] 550 P.2d 490 (1976). [HN3] After the movant establishes a prima facie case the burden of proof shifts to the opposing party who must show a genuine issue of material fact, Gennings v. First Nat’l Bank of Thermopolis, Wyo., 654 P.2d 154 (1982), or come forward with competent evidence of specific facts countering the facts presented by the movant. Matter of the Estate of Brosius, Wyo., 683 P.2d 663 (1984). The burden is then on the nonmoving party to show specific facts as opposed to general allegations. 10 Wright & Miller, Federal Practice and Procedure: Civil § 2727, p. 538. The material presented must be admissible evidence [**8] at trial. Conclusory statements are not admissible. Bancroft v. Jagusch, Wyo., 611 P.2d 819 (1980). We give the party defending the motion the benefit of any reasonable doubt.” Roth v. First Security Bank of Rock Springs, Wyoming, Wyo., 684 P.2d 93, 95 (1984).

Nowotny v. L & B Contract Industries, 933 P.2d 452, 455 (Wyo.1997) (quoting Thomas by Thomas v. South Cheyenne Water and Sewer Dist., 702 P.2d 1303, 1304 (Wyo.1985)).

More specifically and succinctly, with respect to this case, when review is sought of a summary judgment this Court must determine that there is no genuine issue of a material fact and the party prevailing in the district court is entitled to judgment as a matter of law. Utilization of summary judgment serves the purpose of eliminating formal trials where only questions of law are involved. [HN4] In accomplishing the review of a summary judgment resting upon a question [*1135] of law, our review is de novo and affords no deference to the district court’s ruling on that question. E.g., Roberts v. Klinkosh, 986 P.2d 153, 156 (Wyo. 1999); Gray v. Norwest Bank Wyoming, N.A., 984 P.2d 1088, 1091 (Wyo. 1999); [**9] Ahrenholtz v. Time Ins. Co., 968 P.2d 946, 949 (Wyo. 1998).

Our reading of the Agreement and Release convinces us that the intention of S.M.A.R.T. and the Massengills is expressed in clear and unequivocal language. The language clearly assigns the risk to members who agree to be liable for any and all risks. The Agreement and Release continues with an unequivocal statement that S.M.A.R.T. shall not be liable for any injuries or damages to any member or the member’s property, including those caused by the negligence of S.M.A.R.T. It continues with this language:

1. Any member using S.M.A.R.T. SPORTS facility shall undertake any and all risks. The member shall also be liable for any and all risks. S.M.A.R.T. SPORTS shall not be liable for any injuries or damage to any member, or the property of the member, or be subject to any claim, demand, injury or damages whatsoever, including, without limitation, those damages resulting from acts of negligence on the part of S.M.A.R.T. SPORTS, its officers or agents. The member, for himself/herself and on behalf of his/her executors, administrators, heirs, assigns, and assignees and successors, does hereby expressly forever [**10] waive, release and discharge S.M.A.R.T. SPORTS, its owners, officers, employees, agents, assigners and successors from all such claims, demands, injuries, damages, actions or causes of action.

The language of the Agreement and Release is broad, and specifically releases S.M.A.R.T. from claims and actions for negligence. Indeed, the Massengills do not assert that the agreement does not apply to this action; instead, their contention is that the agreement is not enforceable. In the absence of any genuine issue of a material fact with respect to the language of the Agreement and Release, the issue is a pure question of law with respect to whether the district court invoked and correctly applied the pertinent rules of law.

In Shepard v. Top Hat Land & Cattle Co., 560 P.2d 730, 732 (Wyo. 1977), the applicable rule was summarized:

[HN5] If the language of the contract is plain and unequivocal that language is controlling and the interpretation of the contractual provisions is for the court to make as a matter of law. The meaning of the instrument is to be deduced only from its language if the terms are plain and unambiguous. Mauch v. Ballou, Wyo., 499 P.2d 591 (1972); [**11] Craig v. Gudim, Wyo., 488 P.2d 316 (1971); Chandler-Simpson, Inc. v. Gorrell, Wyo., 464 P.2d 849 (1970); Flora Construction Company v. Bridger Valley Electric Association, Inc., Wyo., 355 P.2d 884 (1960); Barlow v. Makeeff, 74 Wyo. 171, 284 P.2d 1093 (1955).

This rule first was alluded to by this Court in Horvath v. Sheridan-Wyoming Coal Co., 58 Wyo. 211, 230, 131 P.2d 315, 321 (1942), and it has been consistently applied over the years, appearing most recently in Saulcy Land Co. v. Jones, 983 P.2d 1200, 1202 (Wyo. 1999).

[HN6] Exculpatory clauses or releases are contractual in nature, and we interpret them using traditional contract principles and considering the meaning of the document as a whole. Milligan v. Big Valley Corp., 754 P.2d 1063, 1065 (Wyo. 1988); Boehm v. Cody Country Chamber of Commerce, 748 P.2d 704, 712 (Wyo. 1987); Schutkowski, 725 P.2d at 1059; Kelliher v. Herman, 701 P.2d 1157, 1159 (Wyo. 1985). The language of the Agreement and Release is clear in manifesting an intention to release S.M.A. [**12] R.T. and those involved with the facility from liability; it specifically states that S.M.A.R.T. will not be held liable for “those damages resulting from acts of negligence on the part of S.M.A.R.T. SPORTS, its officers or agents.” And, just as in Boehm, 748 P.2d at 712, “[a] plain reading of the language in the context of the entire membership application evidences no other rational purpose for which it could have been intended.”

The Massengills endeavor to avoid the release and waiver articulated in the Agreement and Release by arguing that it is not valid as a matter of public policy because the business of S.M.A.R.T. is appropriate for [*1136] public regulation, and the nature of the use of the equipment by Massengill is not material to the public policy or public regulation determination. We said in Fremont Homes, Inc. v. Elmer, 974 P.2d 952, 956 (Wyo. 1999):

[HN7] In Wyoming, a contract limiting liability for negligence may be enforced only if it does not contravene public policy. Schutkowski v. Carey, 725 P.2d 1057, 1059-60 (Wyo.1986); Boehm v. Cody Country Chamber of Commerce, 748 P.2d 704, 710 (Wyo. 1987); Brittain v. Booth, 601 P.2d 532, 535 (Wyo.1979). [**13]

In Schutkowski, 725 P.2d at 1060, this Court adopted from Colorado a four-part test for evaluating a negligence exculpatory clause. [HN8] The factors the court considers are: “(1) whether a duty to the public exists; (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.” A comparison of Massengill’s claim with these factors leads to the ineluctable conclusion that the district court’s decision was correct as a matter of law.

We said in Milligan, 754 P.2d at 1066, “[ [HN9] a] duty to the public exists if the nature of the business or service affects the public interest and the service performed is considered an essential service.” We then adopted from California [HN10] a definition of a release agreement affecting the public interest, giving rise to a public duty, which is that it

“concerns a business of a type generally thought suitable for public regulation. The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for [**14] some members of the public. The party holds himself out as willing to perform this service for any member of the public who seeks it * * *. As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services.” (Emphasis added and footnotes omitted.) Tunkl v. Regents of University of California, 60 Cal. 2d 92, 32 Cal. Rptr. 33, 383 P.2d 441, 445-46, 6 A.L.R.3d 693 (1963).

Milligan, 754 P.2d at 1066. We also adopted a [HN11] list of examples of services which are typically subject to public regulation and which demand a public duty or are considered essential. The list includes common carriers, hospitals and doctors, public utilities, innkeepers, public warehousemen, employers, and services involving extra-hazardous activities. Milligan, 754 P.2d at 1066.

Schutkowski was a case involving a sky diving injury, and we held that [HN12] a private recreational business does not qualify as one that owes a special duty to the public nor are its services of a special, highly [**15] necessary nature. Schutkowski, 725 P.2d at 1060. The services offered by S.M.A.R.T. to its members were those of a private recreational business which did not qualify as suitable for public regulation because they did not affect the public interest nor could they be considered as necessary or essential, and there was no greater duty to the public than existed in Schutkowski, Boehm or Milligan. The district court in its Order Granting Defendant’s Motion for Summary Judgment cites and relies upon decisions from other jurisdictions which have held that [HN13] exculpatory clauses in health club contracts do not violate public policy. Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920, 926 (Minn. 1982); Shields v. Sta-Fit, Inc., 79 Wn. App. 584, 903 P.2d 525, 528 (1995). We are persuaded that the approach of the courts in Minnesota and Washington is the correct rule.

Massengill further maintains that he joined S.M.A.R.T. pursuant to a doctor’s order, and as such was receiving an essential service; therefore, S.M.A.R.T. owed him a public duty that is subject to regulation. A casual conversation, at a drugstore one evening, with the doctor/equity [**16] owner of the S.M.A.R.T. facility hardly qualifies as a prescription. The doctor was not Massengill’s treating physician nor was he acting in that capacity; he engaged in the conversation as the owner of the facility and not a physician. Moreover, the record is devoid of evidence showing that on the day he was injured, Massengill was engaging in a rehabilitation program. He admitted joining S.M.A.R.T. to [*1137] get into better physical condition. That was the purpose of his membership at S.M.A.R.T., and it qualifies as a recreational activity and not a practical necessity. Based on Massengill’s own testimony, his membership was purely recreational and not pursuant to a doctor’s order. There is no genuine issue of material fact as to the purpose or nature of Massengill’s use of the S.M.A.R.T. facility that needs to be resolved.

The third factor in the Schutkowski test is whether the contract was fairly entered into. Since membership in a private recreational facility such as S.M.A.R.T. is purely optional and does not qualify as an essential service, no decisive bargaining advantage exists. “A disparity of bargaining power will be found when a contracting party with little or no bargaining [**17] strength has no reasonable alternative to entering the contract at the mercy of the other’s negligence.” Milligan, 754 P.2d at 1066. Similar to the releases in Milligan, which involved an optional ski race, and Schutkowski, which involved sky diving, no evidence suggests that Massengill was unfairly pressured into signing the agreement or was deprived of the opportunity to understand its implications. In fact, after Massengill initially toured the facilities, he was given the Agreement and Release to take with him, which he filled out at home and returned three days later.

In determining that the Order Granting Defendant’s Motion for Summary Judgment should be considered under principles of contract law, we held that the last factor of the Schutkowski test is satisfied in this case. The intent of the parties was clearly expressed in clear and unambiguous language. [HN14] We interpret exculpatory clauses or releases using traditional contract principles, and consider the meaning of the document as a whole. Milligan, 754 P.2d at 1067. Just as in Boehm, 748 P.2d at 712, “[a] plain reading of the language in the context of the [**18] entire membership application evidences no other rational purpose for which it could have been intended.”

In a further effort to avoid the Agreement and Release, the Massengills present an argument that the Recreation Safety Act, Wyo. Stat. Ann. §§ 1-1-121 to 1-1-123 (Lexis 1999), creates a statutory duty on the part of providers of a sport or recreational opportunity because it preserves actions based upon negligence if damage or injury is not the result of an inherent risk of the sport or recreational opportunity. The Massengills rely upon Halpern v. Wheeldon, 890 P.2d 562, 565 (Wyo. 1995), and the distinction drawn in that case between primary assumption of risk and secondary assumption of risk. The thrust of this rather convoluted argument is that, if the conduct of the defendant comes within the category of secondary assumption of risk, a statutory duty is created by the language that preserves actions based on negligence. The Massengills then contend that the Agreement and Release cannot be enforced because it is contrary to the statutory duty. No authority is cited for that precise proposition, and we are satisfied that [HN15] the Recreation Safety Act does not foreclose [**19] the invocation of a contractual release or waiver for negligent conduct that is not released by the assignment of the inherent risk to the person participating in the sport or recreational opportunity under the statute. Indeed, the limited reach of the statute would suggest that a contractual release in addition to the statute would be prudent.

With respect to the claim of Kaylea Massengill for loss of consortium, her cause of action was included in the Order Granting Defendant’s Motion for Summary Judgment. She executed the same Agreement and Release that James Massengill signed. Furthermore, her claim for loss of consortium was derivative of James Massengill’s claim for injuries, and it fails when his claim fails. Verschoor v. Mountain West Farm Bureau Mut. Ins. Co., 907 P.2d 1293, 1301 (Wyo. 1995); Boehm, 748 P.2d at 708.

The only pertinent issue in this case was whether the exculpatory clause should be held to violate public policy and not enforced for that reason. The record reflects that Massengill’s participation was purely recreational and S.M.A.R.T. did not owe him a public duty. S.M.A.R.T. is not engaged in a type of business generally [**20] thought suitable for public regulation, and Massengill was engaged in a recreational activity not an activity pursuant to a physician’s order. The case [*1138] is correctly resolved as a matter of law under principles relating to contract, and the contractual language being clear and unambiguous, there are no genuine issues of material fact. The case is controlled by Schutkowski and the later cases that followed it. We affirm the district court’s Order Granting Defendant’s Motion for Summary Judgment.

Wisconsin decision has left the status of release law in Wisconsin in jeopardy. Decision also brought in new defenses to releases in the state

Posted: April 28, 2014 | Author: Recreation Law | Filed under: Health Club, Release (pre-injury contract not to sue), Swimming, Wisconsin | Tags: Fitness Center, Legal guardian, Minnesota, Release, swimming, Swimwest Family Fitness Center, Waiver, Wisconsin | 1 Comment

This decision worked hard to defeat not only this release, but all releases in Wisconsin, even though the dissent laid out great arguments why the majority’s decision was not based on any business principle. Even a concurring opinion thought the majority decision was too broad.

Date of the Decision: January 19, 2005

Plaintiff: Benjamin Atkins, a minor, as the only surviving child of Charis Wilson, deceased, by Alexander Kammer, guardian ad litem

Defendant: Swimwest Family Fitness Center a/k/a Swimwest School of Instruction, Inc., Karen Kittelson, and West Bend Mutual Insurance Company

Plaintiff Claims:

Defendant Defenses: Release

Holding: for the Plaintiff

In this decision, the Wisconsin Supreme Court set release law back in the state. The decision, Atkins v. Swimwest violated a release on numerous grounds that would not hold up in other states. In a decision that may invalidate all releases in Wisconsin, the Court ruled that a release used by a swim club in conjunction with the registration statement was invalid as against public policy.

The plaintiff was the only surviving heir of the deceased and a minor. Consequently, the plaintiff was represented by a guardian ad litem. This is a person appointed by the court to represent the minor. The guardian ad litem may or may not be an attorney.

The decedent went to the defendant’s swimming pool for physical therapy. She entered the pool that day and was observed swimming a sidestroke up and down the length of the pool. Soon thereafter she was observed at the bottom of the pool. She was rescued, and CPR was started. She was transported to a hospital where she died the next day.

The decedent was not a member of the swim club, so she was required to sign a guest registration/release form. The form was titled “Guest Registration.” The form was a five 1/2 inch by five 1/2 inch card with release language that the court characterized as standardized. The card also required written personal information. The waiver information was below the registration information. The waiver language was:

I agree to assume all liability for myself without regard to fault, while at Swimwest Family Fitness Center. I further agree to hold harmless Swimwest Fitness Center, or any of its employees for any conditions or injury that may result to myself while at the Swimwest Fitness Center. I have read the foregoing and understand its contents.

The trial court dismissed the case based on the release. The appellate court certified the case to the Supreme Court of Wisconsin. Certified means they passed the case on up without a decision.

Summary of the case

The court first had a problem with the term fault. The term was described as overly broad. The court explained the term was not defined enough to indicate to the parties (the deceased) the exact legal claims that would be barred by the release. The court found the term fault could also cover intentional acts which the court specifically stated would violate public policy and consequently, void the release.

The court stated, “We have consistently held that “only if it is apparent that the parties, in light of all the circumstances, knowingly agreed to excuse the defendants from liability will the contract be enforceable.” From this, statement appears the court wants the specific possible risks to be enumerated; however, that is an impossible job for most recreational activities.

The Supreme Court then looked at the Public Policy issues. The court called the public policy test a balancing test. The court required a balancing of the needs of the parties to contract versus the needs of the community to protect its members. No other court has balanced the issue of a release for a recreational activity this way. No other decision has surmised that the needs of the community include protecting individual members from freedom to contract. The court did not even consider the issue that the purpose of swimming by the decedent was for medical care: her physical therapy which might have had some public policy basis.

The court examined the release’s language in a two-step process. “First, the waiver must clearly, unambiguously, and unmistakably inform the signer of what is being waived. Second, the form, looked at in its entirety, must alert the signer to the nature and significance of what is being signed.” The court stated the release served two purposes: (1) as a sign-in sheet for the facility and (2) as a release and therefore, did not meet the test they created.

In another statement the court stated, there was nothing conspicuous about the release language in the form. While other courts across the nation have continuously berated release writers about hiding the release language, wanting them to make sure the language was not hidden. Here the court goes one step further and wants the release language to be quite apparent and pointed out to the reader.

In one of the wildest statements in a court decision, the Supreme Court of Wisconsin stated that the decedent did not contemplate drowning.

…Wilson likely would not have contemplated drowning in a four-foot deep pool with a lifeguard on duty, when she signed the guest registration and waiver form. The question is not whether swimming carries with it the risk of drowning, but rather whether Wilson, herself, likely contemplated that risk.

Although you might look at slipping on the wet deck or stubbing your toe as you entered the water, what other possible risks exist in swimming other than drowning?

The next major blow to releases in general was the bargaining argument. The court stated the release was void because there was no opportunity for the decedent to bargain over the release language.

We also conclude that there was no opportunity for Wilson to bargain over the exculpatory language in the guest registration and waiver form.

We held that an exculpatory clause would not be enforced when it is part of a standardized agreement that offers little or no opportunity to bargain.

The term bargain means the court wants possible signors of releases to be able to negotiate the exculpatory language out of the release. As argued by the dissent, (judge who disagrees with the majority opinion) this would require every firm to hire an attorney to negotiate each release with each patron. As a condition of insurance, most providers of recreational insurance and/or health club insurances are requiring that every participant sign a release. If a participant does not sign a release and the release is a policy condition, there will be no insurance available to defend a claim.

Even if you could purchase insurance without using a release, at what cost would not having a release be worth? Based on two cases that have occurred, the person who is injured is the person who did not sign the release. So the cost of not have a patron sign a release is equal to their possible claims. If you want to join the health club and sign a release the cost is $79.00 per month with a $100 membership fee. If you want to join without signing a release, the cost is $89.00 a month with a $5 million-dollar membership fee.

The failure bargain to remove the release language was a violation of public policy. How? The court does not enumerate, nor do the concurrence and the dissent provide much additional information; however, both the concurrence and the dissent recognize the fallacy of the bargain requirement.

In the one point of illumination, court summed up their decision in the last paragraph:

In summary, we conclude that the exculpatory language in Swimwest’s form is unenforceable, since it is contrary to public policy. The waiver of liability language is, first, overly broad and all-inclusive. The use of the word “fault” on the form did not make clear to Wilson that she was releasing others from intentional, as well as negligent, acts. Second, the form served two purposes, guest registration and waiver of liability for “fault,” and thus failed to highlight the waiver, making it uncertain whether Wilson was fully notified about the nature and significance of the document she signed. Finally, Wilson did not have any opportunity to bargain. If she had decided not to sign the guest registration and waiver form, she would not have been allowed to swim. The lack of such opportunity is also contrary to public policy. Accordingly, we reverse and remand, concluding also that Atkins is entitled to pursue his wrongful death claim.

The dissent is a well-thought-out argument about what is good and bad about the release and what is very bad about the majority’s opinion; however, the dissent, a minority of one, has no real value.

So Now What?

The solution to this issue is to use the word negligence. Negligence has a specific legal definition and specifically/legally defines the parameter of the release. The only specific statement from the decision that could be considered directional in writing releases was the statement that the word release should have been used in the form.

Why not? Why risk having your release thrown out because you failed to put in one additional sentence.

The next problem was the release was part of a registration form. The court included this as a reason the release did not meet its public policy test. This problem would have been resolved if the release was on a separate sheet of paper and clearly marked with a heading and/or notice above the signature line that the document was a release.

The court then went on in this vein and stated the exculpatory language in the release should have been highlighted or been more visible to someone signing the release.

From this decision, in Wisconsin you must!

1. Your release must be on a separate and distinct piece of paper.

2. You release must be identified and clearly state it is a release.

3. The release must use the magic word “negligence” to be valid.

4. You need to list all of the possible injuries or risks that can befall the signor of the release.

5. Your release must be read by the parties and there should be a notice in the release that the signor read, understood and signed the release with the intention to give up their right to sue for injuries or death.

If you can, you should see if you can provide:

6. The opportunity for your patron to buy their way out of the release.

7. References to other competitors where a guest may be able to go to have a similar opportunity without signing a release.

8. 8. Make sure your insurance is up to date and adequate for the value of your business and your risk.

Always in any business.

9. Make sure your corporate records are up to date. If you are not incorporated or an LLC get incorporated now!

10. 10. Look into separating assets from operations in separate corporations or LLC’s and divide your business into separate, smaller entities to protect the business.

11. 11. Look into asset protection planning for your personal assets.

Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us

Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.

To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.

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Outdoor Recreation Insurance, Risk Management and Law

Hembree v. Johnson et al., 224 Ga. App. 680; 482 S.E.2d 407; 1997 Ga. App. LEXIS 182; 97 Fulton County D. Rep. 622

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Wife signed release, husband signed addendum to release and was held to the exculpatory clause in the release

Posted: November 11, 2013 | Author: Recreation Law | Filed under: Georgia, Health Club, Release (pre-injury contract not to sue) | Tags: Addendum, Contract, Douglasville Health & Athletic Club, Fitness Club, Gordon Johnson, Gym, Health club, James Haddle d/b/a Douglasville Health & Athletic Club, New York City, Public Policy, Release, Rock climbing, Summary judgment, Waiver | Leave a comment

Language of addendum was sufficient to bind husband to contract – but a risky legal move.

Plaintiff: Terrell L. Hembree

Defendant: Gordon Johnson and James Haddle d/b/a Douglasville Health & Athletic Club

Plaintiff Claims: negligence

Defendant Defenses: Release

Holding: for the defendants

The wife of the plaintiff joined the defendant Douglasville Health & Athletic Club. When she joined she signed the Membership Agreement that was referenced by an Agreement Number (13217). When she completed the agreement. She listed her husband, the plaintiff as a family member. The membership agreement on the front referred to rules and conditions that the signor agreed to that were listed on the back. The rules and conditions on the back included exculpatory (release) language.

Several months after his wife joined, the plaintiff joined the health club. He signed a Membership Addendum which stated, “I herewith modify my original membership agreement No. 13217 dated 4-14-92 as stated herein.”

The plaintiff allegedly slipped and fell while playing racquetball injuring his knee. The defendants filed a motion for summary judgment based upon the release signed by the spouse of the plaintiff.

Summary of the case

The plaintiff argued the dismissal of his case was improper because there was the existence of a material issue of a disputed fact. That fact was whether he assented to the release when he joined the defendant club.

Under Georgia law the construction of a written contract is a question of law, which can be decided by a court unless an ambiguity exists in the agreement.

Simply put, when the plaintiff signed the Membership Addendum, he assented to all the terms contained in the original agreement signed by his wife.

Even better the court stated, “It was incumbent upon Hembree [plaintiff] to read the contract and apprise himself of the terms to which he assented.”

Another issue raised by the plaintiff was the release violated the Georgia Fair Business Practices Act (O.C.G.A. § 10-1-393.2). The plaintiff failed to preserve the issue for appeal; however, the court did review the issue.

A health club membership does not violate public policy or violate the Georgia Fair Business Practices Act.

A contracting party may waive or renounce that which the law has established in his favor, provided doing so does not injure others or affect the public interest. O.C.G.A. § 1-3-7. It is well settled that public policy does not prohibit the inclusion of an exculpatory clause, like the one at issue here, in a health club membership.

So Now What?

Normally, a court looks at a release or waiver as a personal contract with a third party. No one can sign away the right to sue of another unless they are legally allowed to do so through a Power of Attorney or as a guardian.

In this case, the court looked at the relationship between the person who signed the original agreement and the person signing the addendum. The addendum specifically referred to the original agreement by a number.

Do not ever rely on this case to have a non-signor on a release held to a release. Always get a signature. In this case, it would have only taken a few more minutes to hand the plaintiff a release and have him read and sign the document.

James H. “Jim” Moss

Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, and outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers, avalanche beacon manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us

Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management

Outdoor Recreation Insurance, Risk Management, and Law

and Law.

To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.

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Palmer v. Lakeside Wellness Center, 281 Neb. 780; 798 N.W.2d 845; 2011 Neb. LEXIS 62

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Hembree v. Johnson et al., 224 Ga. App. 680; 482 S.E.2d 407; 1997 Ga. App. LEXIS 182; 97 Fulton County D. Rep. 622

Posted: November 11, 2013 | Author: Recreation Law | Filed under: Georgia, Health Club, Legal Case, Release (pre-injury contract not to sue) | Tags: Addendum, Douglasville Health & Athletic Club, Fitness Club, Georgia, Gordon Johnson, Gym, Health club, Hembree, James Haddle d/b/a Douglasville Health & Athletic Club, Public Policy, Release, Summary judgment, Waiver | Leave a comment

To Read an Analysis of this decision see: Wife signed release, husband signed addendum to release and was held to the exculpatory clause in the release

Hembree v. Johnson et al., 224 Ga. App. 680; 482 S.E.2d 407; 1997 Ga. App. LEXIS 182; 97 Fulton County D. Rep. 622

Hembree v. Johnson et al.

A97A0034.

COURT OF APPEALS OF GEORGIA

224 Ga. App. 680; 482 S.E.2d 407; 1997 Ga. App. LEXIS 182; 97 Fulton County D. Rep. 622

February 14, 1997, Decided

PRIOR HISTORY: [***1] Slip and fall. Douglas Superior Court. Before Judge James.

DISPOSITION: Judgment affirmed.

COUNSEL: Akin & Tate, S. Lester Tate III, for appellant.

Chambers, Mabry, McClelland & Brooks, Rex D. Smith, Ian R. Rapaport, for appellees.

JUDGES: Judge Harold R. Banke. Pope, P. J., and Johnson, J., concur.

OPINION BY: Harold R. Banke

OPINION

[*680] [**408] Judge Harold R. Banke.

Terrell L. Hembree sued Gordon Johnson and James Haddle d/b/a Douglasville Health & Athletic Club (collectively “Johnson”) to recover damages relating to a knee injury allegedly sustained in a slip and fall on a racquetball court. Hembree appeals the trial court’s adverse summary judgment ruling.

Johnson moved for summary judgment relying primarily on exculpatory language contained in a membership agreement. The record shows that Melissa Hembree completed and signed joint Membership Agreement No. 13217 on which she listed Terrell Hembree, her husband, as a family member. The first section in the contract provides, “I agree to use the Health and Athletic Club in accordance with the Rules and Conditions printed on the reverse side.” Melissa Hembree signed the Rules and Conditions document which contains certain exculpatory provisions requiring a member [***2] to: (1) assume any risk occasioned by the use of the facilities, and (2) forever release and discharge the corporate owner of the club, and any affiliated companies and/or its agents and employees from liability for claims arising out of the use of the facilities. Several months after the joint membership expired, Terrell Hembree signed a Membership Addendum to obtain an individual membership. The Membership Addendum states, “I herewith modify my original membership agreement No. 13217 dated 4-14-92 as stated herein.” The only pertinent change in the addendum altered [*681] the joint membership to an individual one. During the time Hembree had an individual membership, he allegedly slipped and fell. Held:

1. We reject Hembree’s contention that summary judgment was precluded by the existence of a material issue of disputed fact as to whether he assented to the waiver. [HN1] The construction of a written contract is a question of law for the trial court unless after the court applies the applicable rules of construction, ambiguity remains. O.C.G.A. § 13-2-1; Binswanger Glass Co. v. Beers Constr. Co., 141 Ga. App. 715, 716 (1) (234 S.E.2d 363) (1977). This is not such a situation. When Hembree [***3] signed the Membership Addendum, he specifically assented to all the terms contained in Membership Agreement No. 13217, which was incorporated by reference in the Membership Addendum. [HN2] Incorporation by reference is generally effective to accomplish its intended purpose where, as here, the reference has a reasonably clear and ascertainable meaning. Binswanger, 141 Ga. App. at 717 (2). Hembree was bound by the terms and conditions of the contract that he signed including the Rules and Conditions giving effect to the waiver. It was incumbent upon Hembree to read the contract and apprise himself of the terms to which he assented. Conklin v. Liberty Mutual Ins. Co., 240 Ga. 58, 59 (239 S.E.2d 381) (1977); Lovelace v. Figure Salon, 179 Ga. App. 51, 53 (1) (345 S.E.2d 139) (1986). Having shown the absence of any genuine issue of material fact, Johnson was entitled to summary judgment as a matter of law. O.C.G.A. § 9-11-56 (c).

2. Hembree enumerates as errors an alleged violation of the Fair Business Practices Act (O.C.G.A. § 10-1-393.2) and an assertion that Johnson and Haddle are not [**409] agents and employees of the corporation as contemplated by the waiver language. Although Hembree [***4] claims that he raised these two issues during oral argument, he failed to provide a transcript of the summary judgment hearing. Hembree, as [HN3] the party alleging error, has the burden to show it affirmatively by the record. North Fulton Feed v. Purina Mills, 221 Ga. App. 576, 577 (472 S.E.2d 122) (1996). [HN4] Because Hembree failed to show that either of these issues was raised and argued below, they cannot be raised now for the first time. Auerbach v. First Nat. Bank of Atlanta, 147 Ga. App. 288, 290 (1) (B) (248 S.E.2d 551) (1978).

3. Notwithstanding Hembree’s argument to the contrary, we find no violation of public policy in the exculpatory clause at issue. [HN5] A contracting party may waive or renounce that which the law has established in his favor, provided doing so does not injure others or affect the public interest. O.C.G.A. § 1-3-7. It is well settled that public policy does not prohibit the inclusion of an exculpatory clause, like the one at issue here, in a health club membership. Day v. Fantastic Fitness, 190 Ga. App. 46 (1) (378 S.E.2d 166) (1989); My Fair Lady of Ga. v. Harris, 185 Ga. App. 459 (364 S.E.2d 580) (1987); Lovelace, 179 Ga. [*682] App. at 52 (1).

Judgment [***5] affirmed. Pope, P. J., and Johnson, J., concur.

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Hong, v. Hockessin Athletic Club, 2012 Del. Super. LEXIS 340

Posted: August 25, 2013 | Author: Recreation Law | Filed under: Delaware, Health Club, Legal Case, Minors, Youth, Children, Playground, Release (pre-injury contract not to sue) | Tags: DE, Delaware, Eastern Athletic Clubs, guardian, Hockessin Athletic Club, indoor playground, Jaden Hong, Jahndee Hong, Minor, Next Friend, playground, playground equipment, Release | Leave a comment

To Read an Analysis of this decision see: Delaware decision upholds a release signed by a parent against a minor’s claims

Hong, v. Hockessin Athletic Club, 2012 Del. Super. LEXIS 340

Jahndee Hong, as Guardian/Next Friend of Jaden Hong, a minor, Plaintiff, v. Hockessin Athletic Club, and Eastern Athletic Clubs, Llc, a Delaware limited liability company, Defendants.

C.A. No. N12C-05-004 PLA

SUPERIOR COURT OF DELAWARE, NEW CASTLE

2012 Del. Super. LEXIS 340

June 4, 2012, Submitted

July 18, 2012, Decided

JUDGES: Peggy L. Ableman, Judge.

OPINION BY: Peggy L. Ableman

OPINION

This 18th day of July, 2012, it appears to the Court that:

1. Defendants Hockessin Athletic Club (“HAC”) and Eastern Athletic Clubs, LLC (collectively, “Defendants”) have filed a Motion to Dismiss pursuant to Superior Court Civil Rule 12(b)(6), asserting that Plaintiff’s negligence claim is barred by a liability waiver that was executed as part of the club’s Membership Agreement. For the reasons set forth below, the Court agrees that the liability waiver bars Plaintiff’s claim. Accordingly, Defendants’ Motion to Dismiss is GRANTED.

2. Plaintiff Jahndee Hong (“Hong”) brought this negligence action against Defendants on behalf of her son Jaden Hong (“Jaden”). On March 16, 2011, when he was three years old, Jaden fell from indoor playground equipment at the HAC and broke his right arm. ¹ On October 30, 2010, Hong and her husband Minsuk Hong executed a Membership Application and Agreement (“Agreement”) with the HAC. The membership application listed the names and ages of the Hongs’ three children, including Jaden. The Agreement includes a waiver and release of [*2] liability. The Agreement defines a Member as “the individual signer and any and all other persons included in his/her membership with HAC.” Under the heading “WAIVER AND RELEASE OF LIABILITY AND INDEMNITY AGREEMENT,” the Agreement provides as follows:

Member hereby acknowledges that in using the facilities, programs and equipment of HAC, he/she does so entirely at his/her own risk and assume[s] the risk of any injury and/or damage while engaging in any physical exercise or activity or use of any club facility on the premises. This assumption of the risk included, without limitation, Member’s use of any exercise equipment (mechanical or otherwise), the locker room, sidewalk, parking lot, stairs, pool, whirlpool, sauna, steam room, racquet courts, lobby hallways, or any equipment in the facility. Member further agrees to assume the risk in participating in any activity, class, program, instruction, or any event sponsored by HAC. Insurance liability conditions and HAC prohibit any personal training lessons or services by non-HAC staff. Violations of such can result in membership termination.

By executing this Agreement, Member does HEREBY WAIVE, RELEASE AND FOREVER DISCHARGE, HAC and its [*3] past, present and future subsidiaries, affiliates, successors, predecessors, executors, committees, fiduciaries, trustee, employee benefit plans, workers compensation carriers, plan administrators, administrators, partners, employees, insureds, assigns, agents, and representatives in their personal and professional capacities (collectively “HAC”), from all claims, demands, injuries, damages, actions or causes of action, and from all acts of active or passive negligence on the part of such company, corporation, club, its servants, agents, or employees of any nature whatsoever, including attorneys’ fees and costs arising out of or connection with the aforementioned activities. Member further agrees to indemnify and hold harmless HAC from any claims, demands, injuries, damages, actions or causes of action, loss, liability, damage or cost which HAC may incur due to Members[‘] presence at or use of the facility. Member further agrees that the foregoing warranty, waiver and indemnity agreement is intended to be as broad and inclusive as permitted by the law of the State of Delaware and that if any portion is deemed to be invalid, it is expressly agreed that the remaining terms shall remain [*4] in full legal force and effect.

MEMBER ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND FULLY UNDERSTANDS THAT IT IS A RELEASE OF LIABILITY AND EXPRESS ASSUMPTION OF RISK AND INDEMNIFICATION. MEMBER IS AWARE AND AGREES THAT BY EXECUTING THIS WAIVER AND RELEASE, HE/SHE IS GIVING UP THE RIGHT TO BRING LEGAL ACTION OR ASSERT A CLAIM AGAINST HAC FOR ITS NEGLIGENCE AND/OR FOR ANY DEFECTIVE PRODUCT THAT MAY BE IN THE FACILITY OR ON ITS PREMISES. BY SIGNING BELOW, MEMBER SIGNIFIES THAT HE/SHE HAS READ AND VOLUNTARILY SIGNED THIS AGREEMENT AND THAT NO ORAL REPRESENTATIONS, STATEMENTS OR INDUCEMENTS APART FROM THIS FOREGOING AGREEMENT HAVE BEEN MADE.

HAC contends that the liability waiver bars Plaintiff’s suit. Plaintiff responds that the waiver does not bar Plaintiff’s claim because the waiver, which refers to “all acts of active or passive negligence […] arising out of or in connection with the aforementioned activities,” is ambiguous and can be interpreted as applying only to the Member’s assumption of the risk of HAC’s negligence in participating in “any activity, class, program, instruction, or any event sponsored by HAC.”

1 Complaint at ¶ 8. The Complaint makes no specific [*5] allegations as to what was wrong with the playground equipment or how HAC’s negligence caused or contributed to Jaden’s injury. Rather, the Complaint alleges that HAC was negligent in that they (a) failed to take reasonable measures to make premises safe for invitees; (b) failed to properly and reasonably inspect the premises; (c) failed to take reasonable measures to make the premises safe; (d) failed to supervise the plaintiff and other invitees on the property to make sure the invitees were safe at all relevant times herein; and (e) were otherwise negligent. See Compl. at ¶ 9. The Court observes that [HN1] playground injuries are a fairly typical hazard of childhood and that the mere fact that a child broke his arm while at the playground ordinarily would not, by itself, demonstrate negligence on the part of the owner of the premises. The Court further notes that [HN2] Delaware’s rules of pleading prohibit plaintiffs from using a complaint as a fishing expedition to see whether a wrong has been committed. See, e.g., Leary v. Eschelweck, 2012 Del. Super. LEXIS 206, 2012 WL 1664236, at *2 (Del. Super. May 8, 2012). The Complaint as presented in this case comes dangerously close to running afoul of that rule.

3. The Court [*6] must first determine whether to adjudicate Defendants’ motion as presented or convert it to a motion for summary judgment. ² [HN3] Superior Court Civil Rule 12(b)(6) provides that a motion to dismiss shall be treated as a motion for summary judgment under Rule 56 if “matters outside the pleadings are presented to and not excluded by the Court.” ³ HAC has submitted a copy of the signed liability waiver at issue, which Hong also addresses in her Response. Therefore, this motion will be treated as one for summary judgment.

2 Slowe v. Pike Creek Court Club, Inc., 2008 Del. Super. LEXIS 377, 2008 WL 5115035, at 2 (Del. Super. Dec. 4, 2008).

3 Super. Ct. Civ. R. 12(b)(6).

[HN4] When considering a motion for summary judgment, the Court examines the record to determine whether genuine issues of material fact exist and to determine whether the moving party is entitled to judgment as a matter of law. ⁴ [HN5] Summary judgment will be granted if, after viewing the evidence in the light most favorable to the non-moving party, there are no material facts in dispute or judgment as a matter of law is appropriate. ⁵

4 Super. Ct. Civ. R. 56(c).

5 Storm v. NSL Rockland Place, LLC, 898 A.2d 874, 879-80 (Del. Super. 2005).

4. In the factual context of this [*7] case, the question of whether the liability waiver that Hong signed as part of the Membership Agreement with HAC now bars her claim against Defendants is an easy one. In Slowe v. Pike Creek Court Club, which involved a guest who fell on a set of negligently maintained stairs in the swimming pool at the Pike Creek Court Club, a forerunner to the Hockessin Athletic Club, this Court held that [HN6] “a provision exonerating a party for its own negligence will only be given effect if the language makes it crystal clear and unequivocal that the parties specifically contemplated such a release.” ⁶ [HN7] Delaware courts have held that the requirement of “crystal clear and unequivocal” language is satisfied where contractual provisions include language “specifically refer[ring] to the negligence of the protected party.” ⁷ The Court found that the liability release at issue in Slowe included no specific language indicating that the parties contemplated that the waiver would extend to PCCC’s own acts of negligence. ⁸ Moreover, as the Court noted in Slowe, PCCC’s liability release lacked “alternative language expressing that PCCC would be released for its own fault or wrongdoing,” concluding that the plaintiff [*8] could reasonably have concluded that the release would only relieve PCCC of liability for injuries or losses resulting from risks inherent in his use of the club. ⁹

6 Id. (quoting J.A. Jones Constr. Co. v. City of Dover, 372 A.2d 540, 553 (Del. Super. 1977)) (internal quotation marks omitted).

7 Id.; see also Hallman v. Dover Downs, Inc., 1986 U.S. Dist. LEXIS 15708, 1986 WL 535, at *4 (D. Del. Dec. 31, 1986) (collecting cases).

8 Slowe, 2008 Del. Super. LEXIS 377, 2008 WL 5115035, at *3.

9 Id.

5. The Court similarly found that Slowe did not expressly assume the risk of PCCC’s negligence by signing the liability waiver because the waiver did not “clearly, explicitly and comprehensibly notify Slowe that he was assuming the risk that PCCC would negligently fail to maintain and inspect the premises.” ¹⁰ The Slowe Court left open the possibility, however, that “a properly-worded release might effect a waiver of premises liability.” ¹¹

10 2008 Del. Super. LEXIS 377, [WL] at *5.

11 Id. The Slowe Court cited to Benedek v. PLC Santa Monica LLC, 104 Cal. App. 4th 1351, 129 Cal.Rptr. 2d 197 (Cal. Ct. App. 2002), which held that the defendant health club’s release barred plaintiff’s claim for negligence and premises liability arising out of injuries he sustained when he tried to catch a falling television set. The [*9] Benedek court reasoned, “[t]he release Benedek signed was clear, unambiguous, and explicit. It released [the health club] from liability for any personal injuries suffered while on [the health club’s] premises, ‘whether using exercise equipment or not.'” The court further noted that given the unambiguous broad language of the release, it “reached all personal injuries suffered by Benedek on [the health club’s] premises, including the injury Benedek suffered because of the falling television” and rejected as “not semantically reasonable” plaintiff’s argument that the release applied or should be interpreted to apply only to injuries suffered while actively using exercise equipment. 129 Cal.Rptr.2d at 204.

6. Here, Hong signed a comprehensive waiver of liability and release in connection with her Membership Agreement that expressly stated that she (and all others on her membership) assumed the risk of “any injury or damage incurred while engaging in any physical exercise or activity or use of any club facility on the premises,” including the use of “any equipment in the facility” and participation “in any activity, class, program, instruction, or any event sponsored by HAC.” Plaintiff’s [*10] suggestion that “the aforementioned activities” specified in the second paragraph of the liability waiver applies only to activities sponsored by HAC, such as a group exercise class, is an implausible reading of the contract. Accordingly, the Court finds that the Membership Agreement and the included liability waiver and release bar Plaintiff’s claims against HAC.

7. Alternatively, notwithstanding the liability waiver, summary judgment should still be granted based on Plaintiff’s failure to make a prima facie case of negligence against Defendants. ¹² The Complaint contains no specific allegations about the nature of HAC’s negligence and how it caused Jaden’s injury. Rather, the Complaint asserts, in vague and conclusory fashion, that Defendants negligently

(a) failed to take reasonable measures to make premises safe for invitees;

(b) failed to properly and reasonably inspect the premises;

(d) failed to supervise the plaintiff and other invitees on the property to make sure the invitees were safe at all relevant times herein; and

(e) were otherwise negligent. ¹³

In the absence of specific, particularized allegations about [*11] the nature of HAC’s negligence and how it caused Jaden’s injuries, the Complaint must fail.

12 To the extent that Plaintiff believes that she is entitled to discovery to meet her burden, the Court considers the allegations of negligence in the Complaint too vague and generic to allow Plaintiff to conduct what would essentially be a fishing expedition to discover evidence of Defendants’ unspecified negligence. See supra note 1. Summary judgment is therefore appropriate even at this early stage of the litigation.

13 Compl. at ¶9.

8. The Delaware Supreme Court recently upheld this Court’s grant of summary judgment in favor of a car dealership where a would-be customer walked into a plate-glass window at the dealership, noting that while owners and occupiers of commercial property have a duty to maintain their premises in a reasonably safe condition for their customers, patrons also have an affirmative obligation to exercise reasonable care while on the business owner’s premises. ¹⁴ [HN8] In a personal injury action, the plaintiff-customer bears the burden of proving that: (i) there was an unsafe condition on the defendant’s premises; (ii) the unsafe condition caused the plaintiff’s injuries; and [*12] (iii) the defendant had notice of the unsafe condition or should have discovered it by reasonable inspection. ¹⁵

14 Talmo v. Union Park Automotive, 38 A.3d 1255, 2012 WL 730332, at *3 (Del. Mar. 7, 2012) (TABLE); see also DiOssi v. Maroney, 548 A.2d 1361, 1366-7 (Del. 1988); Howard v. Food Fair Stores, New Castle, Inc., 57 Del. 471, 201 A.2d 638, 640, 7 Storey 471 (Del. 1964); Walker v. Shoprite Supermarket, Inc., 864 A.2d 929 (Del. 2004) (holding that it is negligent for a patron not to see what is plainly visible when there is nothing obscuring the patron’s view).

15 Talmo, 38 A.3d 1255, 2012 WL 730332, at *3.

9. Plaintiff here has failed to make any allegations that even raise a clear issue of fact with regard to Defendants’ negligence. Unlike in Slowe, Plaintiff has not alleged the existence of any dangerous condition on the premises that was the result of the health club’s failure to perform its duties, which were statutory and could not have been disclaimed by liability waiver in any event. ¹⁶ Here, Plaintiff has made no allegation that the playground equipment was defective, that the premises otherwise suffered from a latent defect that HAC should have known about and either repaired or warned its invitees [*13] to avoid, or that HAC failed to fulfill a duty to supervise Jaden. Rather, this appears to be a typical incident of a child who was injured on a playground. Such incidents, while unfortunate, do not indicate negligence on the part of the premises-owner any more than does the case of the man who walked into a plate-glass window at a car dealership. Accordingly, based upon Plaintiff’s failure to make a prima facie case of negligence under a theory of premises liability, summary judgment should be granted in favor of Defendants.

16 Slowe, 2008 Del. Super. LEXIS 377, 2008 WL 5115035, at *5-*6.

10. For all of the reasons set forth above, Defendants’ motion for summary judgment is GRANTED.

IT IS SO ORDERED.

/s/ Peggy L. Ableman

Peggy L. Ableman, Judge

G-YQ06K3L262

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Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2

Posted: July 22, 2013 | Author: Recreation Law | Filed under: Health Club, Legal Case, Release (pre-injury contract not to sue), Wisconsin | Tags: Wisconsin, Wisconsin Supreme Court | 2 Comments

To Read an Analysis of this decision see: Wisconsin decision has left the status of release law in Wisconsin in jeopardy. Decision also brought in new defenses to releases in the state

Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2

Benjamin Atkins, a minor, as the only surviving child of Charis Wilson, deceased, by Alexander Kammer, guardian ad litem, Plaintiff-Appellant, v. Swimwest Family Fitness Center a/k/a Swimwest School of Instruction, Inc., Karen Kittelson, and West Bend Mutual Insurance Company, Defendants-Respondents.

No. 03-2487-FT

Supreme Court of Wisconsin

2005 WI 4; 2005 Wisc. LEXIS 2

October 26, 2004, Submitted on Briefs

January 19, 2005, Opinion Filed

Prior History: [**1] Appeal from an order of the Circuit court for Dane County, Michael N. Nowakowski, Judge. L.C. No. 02 CV 3149.

Disposition: Reversed and remanded.

Counsel: For the plaintiff-appellant there were briefs by J. Michael Riley and Axley Brynelson, LLP, Madison, and oral argument by John M. Riley.

For the defendants-respondents there was a brief by Bradway A. Liddle, Sarah A. Zylstra and Boardman, Suhr, Curry & Field, LLP, Madison, and oral argument by Sarah A. Zylstra.

An amicus curiae brief was filed by Patricia Sommer and Otjen, Van Ert, Lieb & Weir, S.C., Madison, on behalf of Wisconsin Insurance Alliance.

Judges: N. Patrick Crooks, J. Patience Drake Roggensack, J. (concurring). Jon P.

Wilcox, J. (dissenting).

Opinion By: N. Patrick Crooks

Opinion:

[*P1] N. Patrick Crooks, J. This case is before the court on certification from the court of appeals, pursuant to Wis. Stat. § (Rule) 809.61 (2001-2002). n1 Benjamin Atkins (Atkins) appealed from an order of the circuit court, which granted summary judgment in favor of Swimwest Family Fitness Center a/k/a Swimwest School of Instruction, Inc., Karen Kittelson, and West Bend Mutual Insurance Company (Swimwest). Atkins filed suit for [**2] the wrongful death of his mother, Dr. Charis Wilson (Wilson), who drowned n2 while using Swimwest’s lap pool. The circuit court held that the guest registration and waiver form signed by Wilson constituted a valid exculpatory provision, releasing Swimwest from liability.

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n1 Unless otherwise indicated all references to Wisconsin Statutes are to the 2001-02 edition. Wisconsin Stat. § (Rule) 809.61 states, in relevant part: “The supreme court may take jurisdiction of an appeal or other proceeding in the court of appeals upon certification by the court of appeals or upon the supreme court’s own motion.”

n2 Wilson was found unconscious at the bottom of Swimwest’s lap pool. Swimwest employees pulled her from the pool and immediately administered CPR. Wilson was then transported by ambulance to University Hospital, where she died the next day, May 4, 2001. An autopsy revealed that death was caused by an Anoxic Brain Injury, the result of drowning.

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –

[*P2] We conclude that the exculpatory [**3] language in Swimwest’s form is unenforceable, since it is contrary to public policy. The waiver of liability language is, first, overly broad and all-inclusive. The use of the word “fault” on the form did not make clear to Wilson that she was releasing others from intentional, as well as negligent, acts. Second, the form served two purposes, guest registration and waiver of liability for “fault,” and thus failed to highlight the waiver, making it uncertain whether Wilson was fully notified about the nature and significance of the document she signed. Finally, Wilson did not have any opportunity to bargain. If she had decided not to sign the guest registration and waiver form, she would not have been allowed to swim. The lack of such opportunity is also contrary to public policy. Accordingly, we reverse and remand, concluding also that Atkins is entitled to pursue his wrongful death claim.

I

[*P3] Swimwest is mainly an instructional swimming facility located in Madison, Wisconsin. It is equipped with a lap pool that is open to both members and visitors. On May 3, 2001, n3 Wilson, a local physician, visited Swimwest as part of a physical therapy and rehabilitation program. Upon [**4] entering the facility, Wilson was assisted at the front desk by Swimwest employee Arika Kleinert (Kleinert). Kleinert informed Wilson that because she was not a member of Swimwest, she was required to fill out a guest registration card and pay a fee before swimming.

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n3 The actual form signed by Wilson is dated May 2, 2001. The complaint, coroner’s report, and Arika Kleinert’s affidavit all indicate, however, that Wilson signed the form and was found unconscious in the pool on May 3, 2001. The parties have presumed that the date on the form was incorrect.

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –

[*P4] Kleinert presented Wilson with the guest registration card. The form was preprinted on a five and one-half inch by five and one-half inch card that also contained a standardized “Waiver Release Statement.” This statement appeared below the “Guest Registration,” which requested the visitor’s name, address, phone, reason for visit, and interest in membership. The entire card was printed in capital letters with the same size, font, and color. The waiver [**5] language printed on the card, following the registration information requested, is reproduced below:

WAIVER RELEASE STATEMENT

I AGREE TO ASSUME ALL LIABILITY FOR MYSELF WITHOUT REGARD TO FAULT, WHILE AT SWIMWEST FAMILY FITNESS CENTER. I FURTHER AGREE TO HOLD HARMLESS SWIMWEST FITNESS CENTER, OR ANY OF ITS EMPLOYEES FOR ANY CONDITIONS OR INJURY THAT MAY RESULT TO MYSELF WHILE AT THE SWIMWEST FITNESS CENTER. I HAVE READ THE FOREGOING AND UNDERSTAND ITS CONTENTS.

[*P5] The guest registration and waiver card had just one signature and date line that appeared at the end of the “Guest Registration” and the “Waiver Release Statement.” Wilson completed the requested “Guest Registration” portion and signed at the bottom of the “Waiver Release Statement” without asking Kleinert any questions.

[*P6] Before entering the pool, Wilson told Dan Kittelson, Aquatic Director of Swimwest, that she did not require assistance getting into the water. n4 She was observed entering the pool by Karen Kittelson, part owner of Swimwest, and the lifeguard on duty. Karen Kittelson testified that she saw Wilson swimming the sidestroke up and down the length of the pool.

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n4 It was established in Atkins’ affidavit that Wilson knew how to swim prior to May 3, 2001.

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – [**6]

[*P7] Soon after Wilson began swimming, another Swimwest employee, Elizabeth Proepper (Proepper), spotted Wilson lying motionless underwater near the bottom of the pool. Proepper alerted Karen Kittelson, who pulled Wilson from the pool and administered CPR. Wilson died at the hospital on May 4, 2001. An autopsy was performed, and drowning was listed as the official cause of death on the coroner’s report.

[*P8] Atkins, a minor and Wilson’s only child, filed a wrongful death action against Swimwest through his guardian ad litem. Atkins’ complaint alleged that Swimwest was negligent in the operation of the pool facility, particularly in the management and observation of the pool area, that procedures to safeguard against the risk of drowning were not followed, and that negligence of its employees caused Wilson’s death.

[*P9] The Dane County Circuit Court, the Honorable Michael N. Nowakowski presiding, granted Swimwest’s summary judgment motion and dismissed Atkins’ wrongful death action. The circuit court concluded that the form Wilson signed was sufficient to absolve Swimwest of any liability for Wilson’s death. The court reached its conclusion after considering whether [**7] the exculpatory clause was in contravention of public policy.

[*P10] Atkins appealed the circuit court decision. The court of appeals, Judges Charles P. Dykman, Margaret J. Vergeront, and Paul B. Higginbotham, certified the appeal to this court to clarify Wisconsin law concerning the enforceability of exculpatory clauses in standard liability release forms.

II

[*P11] This case involves review of whether the circuit court appropriately granted Swimwest’s motion for summary judgment. In reviewing the grant of summary judgment, we apply the same methodology used by the circuit court in deciding the motion. Yauger v. Skiing Enters., Inc., 206 Wis. 2d 76, 80, 557 N.W.2d 60 (1996); see Richards v. Richards, 181 Wis. 2d 1007, 1011, 513 N.W.2d 118 (1994). Although the standard for our review is de novo, we benefit from the analysis of the circuit court.Yahnke v. Carson, 2000 WI 74, P10, 236 Wis. 2d 257, 613 N.W.2d 102. Wisconsin Stat. § 802.08(2) states, in relevant part, that the circuit court may appropriately grant summary judgment if evidence shows “that there is no genuine issue as to any material [**8] fact and that the moving party is entitled to a judgment as a matter of law.”

[*P12] This case turns on the interpretation of Swimwest’s guest registration and waiver form, and whether it relieves Swimwest of liability for harm caused by its negligence. Merten v. Nathan, 108 Wis. 2d 205, 210, 321 N.W.2d 173 (1982). Wisconsin case law does not favor such agreements. Richards, 181 Wis. 2d at 1015; Dobratz v. Thomson, 161 Wis. 2d 502, 468 N.W.2d 654 (1991). While this court has not held that an exculpatory clause is invalid per se, we have held that such a provision must be construed strictly against the party seeking to rely on it. Yauger, 206 Wis. 2d at 81; Merten, 108 Wis. 2d at 210-11.

[*P13] Generally, exculpatory clauses have been analyzed on principles of contract law, see Dobratz, 161 Wis. 2d 502; Arnold v. Shawano County Agr. Soc’y, 111 Wis. 2d 203, 330 N.W.2d 773 (1983), overruled on other grounds, Green Spring Farms v. Kersten, 136 Wis. 2d 304, 317, 401 N.W.2d 816 (1987), and on public policy grounds. See Yauger, 206 Wis. 2d 76; [**9] Richards, 181 Wis. 2d 1007; Merten, 108 Wis. 2d 205; see generally, Restatement (Second) of Contracts, § 195 (1981). n5 However, lately the contractual analysis has not been emphasized, as many of the factors previously reviewed on a contractual basis were reached in the more recent cases, like Richards and Yauger, on public policy grounds. Yauger, 206 Wis. 2d at 86. For a contractual inquiry, we need only “look to the contract itself to consider its validity. Specifically, we examine the facts and circumstances of [the] agreement . . .” Arnold, 111 Wis. 2d at 211, to determine if it was broad enough to cover the activity at issue. If not, the analysis ends and the contract should be determined to be unenforceable in regard to such activity. If the language of the contract does cover the activity, as it does here, we then proceed to an analysis on public policy, which remains the “germane analysis” for exculpatory clauses. Yauger, 206 Wis. 2d at 86.

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n5 Restatement (Second) of Contracts § 195 states, in relevant part:

(1) A term exempting a party from tort liability for harm caused intentionally or recklessly is unenforceable on grounds of public policy.

(2) A term exempting a party from tort liability for harm caused negligently is unenforceable on grounds of public policy if:

(a) the term exempts an employer from liability to an employee for injury in the course of his employment;

(b) the term exempts one charged with a duty of public service from liability to one to whom that duty is owed for compensation for breach of that duty, or

(3) A term exempting a seller of a product from his special tort liability for physical harm to a user or consumer is unenforceable on grounds of public policy unless the term is fairly bargained for and is consistent with the policy underlying that liability.

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – [**10]

[*P14] We generally define public policy as “’that principle of law under which freedom of contract or private dealings is restricted by law for the good of the community.’” Merten, 108 Wis. 2d at 213 (quoting Higgins v. McFarland, 196 Va. 889, 86 S.E.2d 168, 172 (1955)). In such a review of exculpatory clauses, this court “attempts to accommodate the tension between the principles of contract and tort law that are inherent in such an agreement.” Richards, 181 Wis. 2d at 1016. n6 For guidance on the application of these public policy principles, we examine our two most recent cases considering exculpatory contracts in Wisconsin.

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n6 The basic principles of contract and tort law as applied to exculpatory provisions were made clear in Richards v. Richards, 181 Wis. 2d 1007, 1016, 513 N.W.2d 118 (1994):

The law of contract is based on the principle of freedom of contract; people should be able to manage their own affairs without government interference. Freedom of contract is premised on a bargain freely and voluntarily made through a bargaining process that has integrity. Contract law protects justifiable expectations and the security of transactions. The law of torts is directed toward compensation of individuals for injuries resulting from the unreasonable conduct of another. Tort law also serves the “prophylactic” purpose of preventing future harm; tort law seeks to deter certain conduct by imposing liability for conduct below the acceptable standard of care. Id. (citing Merten v. Nathan, 108 Wis. 2d 205, 211-12, 321 N.W.2d 173).

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – [**11]

[*P15] In Yauger, this court based its determination of the enforceability of an exculpatory clause on two grounds: “First, the waiver must clearly, unambiguously, and unmistakably inform the signer of what is being waived. Second, the form, looked at in its entirety, must alert the signer to the nature and significance of what is being signed.” Yauger, 206 Wis. 2d at 84. Yauger involved a wrongful death action against the owner of a ski hill area. The claim, brought by the parents of a girl who fatally collided with the concrete base of a chair lift tower while skiing, alleged that the defendant negligently failed to pad the lift tower. The defendant filed for summary judgment, relying on the exculpatory provision contained in the family ski pass signed by the girl ‘s father. The waiver read, in part: “’There are certain inherent risks in skiing and that we agree to hold Hidden Valley Ski Area/Skiing Enterprises Inc. harmless on account of any injury incurred by me or my Family member on the Hidden Valley Ski Area premises.’” Id. at 79.

[*P16] In applying the two factors, the court in Yauger held that the release was void as [**12] against public policy. First, this court held that the release was not clear because it failed to include language “expressly indicating Michael Yauger’s intent to release Hidden Valley from its own negligence.” Id. at 84. Without any mention of the word “negligence,” and the ambiguity of the phrase “inherent risks of skiing,” the court held that Yauger was not adequately informed of the rights he was waiving. In regard to the second factor, this court held that the form, in its entirety, did not fully communicate to Yauger its nature and significance, because it served the dual purposes of an application for a season pass and a release of liability. Id. at 87. Furthermore, the waiver was not conspicuous. It was one of five paragraphs on the form and did not require a separate signature. Id.

[*P17] In Richards, the court adopted a slightly different approach to determining the enforceability of exculpatory contracts. Richards involved the wife of a truck driver signing a “Passenger Authorization” release form issued by her husband’s employer. The form claimed to waive liability for “intentional, reckless, and negligent conduct.” She [**13] brought suit to recover for injuries she suffered while riding in her husband’s truck as a passenger. We used a combination of factors to determine that the exculpatory language was contrary to public policy. Richards, 181 Wis. 2d at 1017. The first factor was that the contract served two purposes, neither of which was clearly identified or distinguished. Second, the court held that the release was broad and all-inclusive. Finally, there was little or no opportunity to negotiate or bargain over the contract. Id.at 1011.

[*P18] Applying the factors from Yauger and Richards, we hold that Swimwest ‘s exculpatory clause is in violation of public policy. n7 First, this exculpatory waiver, which uses the word “fault,” is overly broad and all-inclusive. Yauger, 206 Wis. 2d at 85-86; Richards, 181 Wis. 2d at 1017-18. Second, the form, serving two functions and not requiring a separate signature for the exculpatory clause, thus not sufficiently highlighting that clause, does not provide the signer adequate notification of the waiver’s nature and significance. Yauger, 206 Wis. 2d at 86-87. Third, [**14] there was little or no opportunity to bargain or negotiate in regard to the exculpatory language in question. Richards, 181 Wis. 2d at 1019. n8 Under this framework, the waiver in question is unenforceable as against public policy.

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n7 We acknowledge that Yauger v. Skiing Enters., Inc., 206 Wis. 2d 76, 557 N.W.2d 60 (1996) and Richards place different weight on the public policy factors used to invalidate exculpatory clauses. See Rose v. Nat’l Tractor Pullers Ass’n, Inc., 33 F. Supp. 2d 757, 765 (1998). In Yauger, for example, “the presence of a single objectionable characteristic (was) sufficient to justify invalidating an exculpatory agreement.” Id. On the other hand, in Richards, the court stated that “none of these factors alone would necessarily have warranted invalidation of the exculpatory contract.” Richards, 181 Wis. 2d at 1020; see Rose, 33 F. Supp. at 765. Because all of the factors listed in those cases are present here, we do not address whether a single objectionable factor is sufficient to invalidate an exculpatory clause. [**15]

n8 According to the court in Yauger, it did not address this factor from Richards because both of the factors it had already addressed were sufficient to void the exculpatory clause in question. Yauger, 206 Wis. 2d 76, 86 n.1.

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[*P19] In addressing the first factor, we find the waiver’s broadness raises questions about its meaning and demonstrates its one-sidedness. Id. At 1018. The language chosen by Swimwest is not clear and could potentially bar any claim arising under any scenario. The waiver begins: “I AGREE TO ASSUME ALL LIABILITY FOR MYSELF WITHOUT REGARD TO FAULT. . . .” This language never makes clear what type of acts the word “fault” encompasses. Although Swimwest alleges that negligence is synonymous with fault, we find that fault is susceptible to a broader interpretation. Fault is currently defined as “an error or defect of judgment or of conduct; any deviation from prudence or duty resulting from inattention, incapacity, perversity, bad faith, or mismanagement.” Black’s Law Dictionary 623 (7^th ed. 1999). This definition is broad enough to cover [**16] a reckless or an intentional act. A waiver of liability for an intentional act would clearly place the exculpatory clause in violation of public policy. Merten, 108 Wis. 2d at 212; Restatement (Second) of Contracts § 195(1) (1981). We again emphasize that exculpatory language must be strictly construed against the party seeking to rely on it. Yauger, 206 Wis. 2d at 81.

[*P20] If Swimwest wanted to make clear that the signer is releasing it from negligent acts, it could have included the word “negligence” in the waiver. While this court has never specifically required exculpatory clauses to include the word “negligence,” we have stated that “we consider that it would be very helpful for such contracts to set forth in clear and express terms that the party signing it is releasing others for their negligent acts. . . .” Dobratz, 161 Wis. 2d at 525.

[*P21] Likewise, the broadness of the exculpatory language makes it difficult to ascertain exactly what was within Wilson’s or Swimwest’s contemplation. We have consistently held that “only if it is apparent that the parties, in light of all [**17] the circumstances, knowingly agreed to excuse the defendants from liability will the contract be enforceable.” Id. at 520 (citing Arnold, 111 Wis. 2d at 213). For example, in Arnold, we voided an exculpatory clause, because the accident that occurred was not within the contemplation of the parties when they signed the agreement. The case involved a waiver signed by a racecar driver, whereby he agreed not to hold liable the race promoter, the racing association, the track operator, the landowner, and any other driver in the race for injuries arising from the race. The plaintiff was severely injured after he crashed his car, and the rescue personnel sprayed chemicals into his burning car. The fumes that the spray created were toxic and caused the driver severe brain damage. In rendering the exculpatory language unenforceable, we held that “an issue of material fact exists as to whether the risk of negligent rescue operations was within the contemplation of the parties at the time the exculpatory contract was executed.” Arnold, 111 Wis. 2d at 212.

[*P22] Like the plaintiff in Arnold, Wilson likely would not have contemplated [**18] drowning in a four-foot deep pool with a lifeguard on duty, when she signed the guest registration and waiver form. The question is not whether swimming carries with it the risk of drowning, but rather whether Wilson, herself, likely contemplated that risk.

[*P23] Here, the guest registration and waiver form does not provide adequate notice of the waiver’s nature and significance. See Yauger, 206 Wis. 2d at 84. In this case, the form provided by Swimwest served two purposes. It was both a “Guest Registration” application and a “Waiver Release Statement.” Just as in Richards and Yauger, the exculpatory language appeared to be part of, or a requirement for, a larger registration form. In Yauger, for example, the plaintiff signed a one-page document that served as an application for a season ski pass and also contained a release of liability. Yauger, 206 Wis. 2d at 87. The waiver in this case could have been a separate document, providing Wilson with more adequate notice of what she was signing. Also, a separate signature line could have been provided, but was not. “Identifying and distinguishing clearly between those two contractual [**19] arrangements could have provided important protection against a signatory’s inadvertent agreement to the release. “ Richards, 181 Wis. 2d at 1017.

[*P24] Another problem with the form was that there was nothing conspicuous about the paragraph containing the “Waiver Release Statement.” See Yauger, 206 Wis. 2d at 87. “The form, looked at in its entirety, must be such that a reviewing court can say with certainty that the signer was fully aware of the nature and the significance of the document being signed.” Id. at 88. Here, the entire form was printed on one card, with the same size, font, and color. The fact that the release statement is in capital letters is irrelevant since all of the words on the guest registration were also in capital letters. Furthermore, the only place to sign the form was at the very end. This supports the conclusion that the waiver was not distinguishable enough.

[*P25] We also conclude that there was no opportunity for Wilson to bargain over the exculpatory language in the guest registration and waiver form. According to the deposition testimony of Swimwest employee Kleinert, Wilson had an opportunity [**20] to read the form and ask questions. She was told that the form included a waiver, and allegedly took her time reading the card. This information alone, however, is not sufficient to demonstrate a bargaining opportunity. The form itself must provide an opportunity to bargain. See Richards, 181 Wis. 2d at 1019.

[*P26] We were faced with an analogous situation in Richards. In that case, the plaintiff was forced to choose between signing a standardized waiver or not riding with her husband in his employer’s truck. The court invalidated the contract, in part, because she “simply had to adhere to the terms of the written form.” Id. We held that an exculpatory clause would not be enforced when it is part of a standardized agreement that offers little or no opportunity to bargain. Id. Similarly, Wilson was without an opportunity to negotiate in regard to the standard exculpatory language used in the form. She was forced to either sign the form or not swim at Swimwest. n9 We hold, therefore, that such an exculpatory clause, where there is no opportunity to bargain in regard to its terms, presents another significant factor in the analysis of public policy. [**21]

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n9 In Karen Kittelson’s deposition, she states: “You have to pay the fee and sign the waiver. You are not allowed to use the facility unless you sign the waiver.”

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[*P27] All of the factors discussed lead us to conclude that the exculpatory clause in the Swimwest form violates public policy, and, therefore, is unenforceable.

III

[*P28] The final issue we address is whether Atkins is permitted to bring a wrongful death claim against Swimwest. Under Wisconsin law, a wrongful death action may be brought under such circumstances “as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages. . . .” Wis. Stat. § 895.03. n10

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n10 Wisconsin Stat. § 895.03 states, in relevant part:

Whenever the death of a person shall be caused by a wrongful act, neglect or default and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liable, if death had not ensued, shall be liable to an action for damages notwithstanding the death of the person injured; provided, that such action shall be brought for a death caused in this state.

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[*P29] As the son of Wilson, Atkins was a proper claimant for a wrongful death claim against Swimwest, pursuant to Wis. Stat. § 895.04. n11 However, because the circuit court determined that Wilson would have been barred from bringing suit, the court consequently determined that Atkins was also barred. While caselaw does establish that wrongful death claims are derivative to any claim Wilson could have maintained, see Ruppa v. Am. States Ins. Co., 91 Wis. 2d 628, 646, 284 N.W.2d 318 (1979), having found the exculpatory clause unenforceable as against public policy, Swimwest is no longer shielded from liability, since Wilson could have brought a claim against it. Accordingly, Swimwest must now face the derivative wrongful death claim filed by her son, Benjamin Atkins.

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n11 Wisconsin Stat. § 895.04(1) states, in relevant part: “An action for wrongful death may be brought by the personal representative of the deceased person or by the person to whom the amount recovered belongs.”

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IV

[*P30] In summary, we conclude that the exculpatory language in Swimwest’s form is unenforceable, since it is contrary to public policy. The waiver of liability language is, first, overly broad and all-inclusive. The use of the word “fault” on the form did not make clear to Wilson that she was releasing others from intentional, as well as negligent, acts. Second, the form served two purposes, guest registration and waiver of liability for “fault,” and thus failed to highlight the waiver, making it uncertain whether Wilson was fully notified about the nature and significance of the document she signed. Finally, Wilson did not have any opportunity to bargain. If she had decided not to sign the guest registration and waiver form, she would not have been allowed to swim. The lack of such opportunity is also contrary to public policy. Accordingly, we reverse and remand, concluding also that Atkins is entitled to pursue his wrongful death claim.

By the Court.-The decision of the circuit court is reversed and the cause is remanded for further proceedings consistent with this opinion.

Concur by: Patience Drake Roggensack

Concur:

[*P31] Patience Drake Roggensack, J. (concurring). [**24] While I agree with the mandate to reverse and remand this matter, I write separately for two reasons: (1) because the court paints with too broad a brush when it strikes down the waiver due to its conclusion that Swimwest Family Fitness Center did not give Charis Wilson the opportunity to bargain on the terms of the release, without explaining that while the opportunity to bargain is desirable, it is not a separate component that may be dispositive of a waiver’s validity, and (2) because whether Wilson contemplated the possibility of her own death when she signed the waiver of liability is a question of fact that we should not decide on appeal.

[*P32] In the absence of legislation that prohibits them, waivers of liability, also known as exculpatory contracts, generally have been upheld. Arnold v. Shawano County Agric. Soc’y, 111 Wis. 2d 203, 209, 330 N.W.2d 773 (1983). However, exculpatory contracts, such as the one Wilson signed to obtain the opportunity to swim in the Swimwest pool, are not favored in the law. Id.

[*P33] When an exculpatory contract is reviewed by a court upon a claim that the contract violates public policy, there is a tension [**25] that is always present. On one hand, the court must consider the right to contract freely in the management of one’s affairs without government interference, and on the other hand, the court must consider that the shifting of responsibility for a tortfeasor’s negligent acts may tend to permit more negligent conduct. Id. at 209, n.2. We have balanced this tension by consistently requiring that exculpatory contracts contain two components in order to survive a public policy challenge: (1) a description that “clearly, unambiguously, and unmistakably inform[s the signer] of the rights he [or she is] waiving,” Yauger v. Skiing Enters., Inc., 206 Wis. 2d 76, 86, 557 N.W.2d 60 (1996), and (2) a description that “clearly and unequivocally communicates to the signer the nature and significance of the document being signed.” Id. at 86-87. In regard to these components, releases that serve two purposes and those that are not conspicuously labeled have been held to be insufficient to draw the signer’s attention to the fact that he is waiving liability for other parties’ negligence, as well as his own. Richards v. Richards, 181 Wis. 2d 1007, 1017, 513 N.W.2d 118 (1994). [**26] And a release that is so broad as to be interpreted to shift liability for a tortfeasor’s conduct under all possible circumstances, including reckless and intentional conduct, and for all possible injuries, catastrophic as well as minor, will not be upheld. Id. at 1017-18.

[*P34] In Richards, we also identified a third consideration that may be examined when exculpatory contracts are reviewed: Whether the injured party has had an opportunity to bargain in regard to the breadth of the release. Id. At 1019. However, contrary to our discussion of the two components set out above, which previous cases had evaluated, we offered no citation to precedent that would establish that the lack of an opportunity to bargain is a component necessary to a valid exculpatory contract. Instead, we linked the lack of an opportunity to bargain to the component requiring releases to clearly state the circumstances and scope of injuries contemplated in order to inform the signer of the rights that he or she is waiving. Id. at 1019-20.

[*P35] In a more recent decision where we invalidated a waiver because it “failed to clearly, unambiguously, [**27] and unmistakably inform [the signer] of the rights he was waiving,” Yauger, 206 Wis. 2d at 86, and failed to “clearly and unequivocally communicate to the signer the nature and significance of the document being signed,” id. at 86-87, we also explained:

We need not address the third ground articulated in Richards, i.e., standardized agreement which offers little or no opportunity for negotiation or free and voluntary bargaining, inasmuch as either of the above principles was sufficient to void this contract.

Id. at 87 n.1. In so explaining that a lack of either of the two necessary components set out at pages 86-87 of our decision was sufficient to set aside an exculpatory contract, we chose not to establish as a third and necessary component of a public policy analysis a requirement that there be an opportunity to bargain on the terms of the release. Rather, the lack of an opportunity to bargain was a fact that a court could consider in evaluating the totality of the circumstances surrounding the execution of a waiver.

[*P36] It is against this background that the majority opinion strikes down the contract [**28] between Wilson and Swimwest, while concluding that one of the infirmities leading to invalidation is that Wilson was not given an opportunity to bargain about the terms of the release. Majority op., P18. It also opines that, “because all of the factors listed in [earlier] cases are present here, we do not address whether a single objectionable factor is sufficient to invalidate an exculpatory clause.” Id., P18 n.7. In so doing, it adds the lack of an opportunity to bargain as a component of the public policy analysis, rather as reasoning used to determine whether the release was overly broad, as we employed it in Richards. It also implies that the lack of an opportunity to bargain could be sufficient to invalidate a release when it asserts, “The form itself must provide an opportunity to bargain.” Majority op., P25. This is an unnecessary broadening of the law that heretofore has set the framework for the analysis of an exculpatory contract on public policy grounds.

[*P37] My concern may seem like a minor matter, but it is very important in a practical sense. For example, the reception desk of a recreational facility is not always staffed by the owner of the facility, [**29] but rather, it may be staffed by an employee, as was the case here. It would be unrealistic to require that an employee be authorized to “bargain” about the terms of a release of liability, and it would be unrealistic that an owner always be present at the facility. Additionally, what give and take has to occur in order that there be an actual opportunity to bargain? What if a potential swimmer does not want to waive any potential claims for liability, but the owner is able to afford insurance only for catastrophic injuries, does the owner have the right to say that the person cannot swim in his pool? Those are only a few of the questions that could arise. Accordingly, I would not employ the opportunity to bargain in any way other than in an attempt to determine if the language in the release described the circumstances for which potential liability claims were being waived.

[*P38] Additionally, in holding that the opportunity to bargain is a component of a contractual waiver, the court has effectively removed the ability of most businesses that operate paid recreational facilities to limit any type of liability by contract. In my view, this will result in an increase in lawsuits [**30] and in fewer swimming and other paid recreational facilities for Wisconsin citizens to enjoy, a result that does not further the public good.

[*P39] Exculpatory contracts may be invalidated on a contractual basis, as well as on a public policy basis, if the injury that occurred was not within the contemplation of the parties when the agreement was signed. Arnold, 111 Wis. 2d at 211. As we have explained, “Exculpatory agreements that are broad and general in terms will bar only those claims that are within the contemplation of the parties when the contract was executed.” Id. We have also explained that the determination of what risks the parties to the contract intended to include in the release are questions of fact for the jury. Id. at 212.

[*P40] An overly broad and generally stated release that may prevent the formation of a valid contract because there was no meeting of the minds by the contracting parties presents a question similar to that presented by a failure to establish the components necessary to a public policy analysis. However, under a contract analysis, the question presents as a fact question, unless the facts are undisputed [**31] and capable of only one interpretation, see Energy Complexes, Inc. v. Eau Claire County, 152 Wis. 2d 453, 466-67, 449 N.W.2d 35 (1989), and in a public policy analysis the question presents as a question of law, Richards, 181 Wis. 2d at 1011. The foundations are so similar that we have cited to cases that were decided under a contract-type analysis as support for a decision based on public policy. See, e.g., id. at 1015-16 (a policy-based decision, citing Dobratz v. Thomson, 161 Wis. 2d 502, 520, 468 N.W.2d 654 (1991), a contract-based decision).

[*P41] Here, the contract-formation question presented is whether Wilson contemplated the possibility of her own death when she signed the release. The record provides that she was a swimmer and that the part of the pool in which she was swimming was only about four feet deep. Therefore, if she tired of swimming, all she had to do to keep from sinking below the water’s surface was to stand up. Additionally, statements in the coroner’s report included in the record, which repeated findings from the autopsy, relate that although Wilson’s cause of death is listed [**32] as “drowning,” she did not die from the aspiration of water into her lungs, as one would expect when breathing continues after a person is submerged under water. The physician who conducted the autopsy labeled this phenomenon a “dry drowning.” Although he did not assign any specific finding, such as a heart attack, as the cause of Wilson’s failing to breathe, several possibilities were mentioned. Accordingly, there may have been medical circumstances that contributed to Wilson’s death that had nothing to do with her being submerged in a swimming pool when she was found unconscious. This presents the court with material factual questions about what risks Wilson contemplated when she signed the release. In my view, there must first be a finding of what caused Wilson’s death before a court can evaluate whether she could have agreed to waive that cause. This cannot be decided on summary judgment.

[*P42] Furthermore, the majority opinion does not decide that as a matter of law Wilson could not have contemplated the possibility of her own death when she signed the release. Therefore, I would send the case back to the circuit court for determinations of what caused Wilson to stop breathing [**33] and whether Wilson and Swimwest intended the release to cover that catastrophic event. In my view, until it is known why Wilson stopped breathing, it will not be possible to determine whether she contemplated that event when she signed the waiver of liability. If the injury-causing event is found to be one that Wilson did not contemplate, the waiver she signed will have no effect on liability for her death.

[*P43] For the reasons set forth above, I respectfully concur.

DISSENTBY: JON P. WILCOX

DISSENT:

[*P44] JON P. WILCOX, J. (dissenting). I dissent. While I certainly do not believe that all exculpatory agreements should be upheld, the majority opinion will render it virtually impossible to enforce any exculpatory agreement in Wisconsin. The majority concludes that the agreement in this case is unenforceable as against public policy for three reasons: 1) the agreement is overly broad; 2) the agreement serves two purposes; and 3) there was no opportunity for the signer to bargain or negotiate over the exculpatory language. Majority op., P18. These factors originate from this court’s decision in Richards v. Richards, 181 Wis. 2d 1007, 1017-19, 513 N.W.2d 118 (1994). [**34] I disagree with the majority’s application of factors one and two and while I am bound to accept the legitimacy of the third factor, I question the manner in which the third factor is applied in this case. Further, the majority fails to articulate a clear test as to what types of exculpatory agreements are enforceable in this state. The majority applies the above three factors in such a fashion so as to leave little possibility that any exculpatory agreement could be enforceable in this state.

[*P45] The law governing the enforceability of exculpatory agreements in Wisconsin has been anything but consistent and this court has, through its various articulations of standards applicable to such agreements, failed to ever adhere to a consistent test for determining their validity. While parties wishing to execute such agreements certainly have a plethora of cases explaining when such agreements are not enforceable, our jurisprudence has not provided a beacon for litigants to successfully navigate the rocky waters of this area of the law.

[*P46] The last time this court had the opportunity to examine the validity of exculpatory agreements in Wisconsin, we noted that our previous [**35] cases had used a variety of tests to evaluate the legitimacy of such agreements. Yauger v. Skiing Enters., Inc., 206 Wis. 2d 76, 81-83, 557 N.W.2d 60 (1996). We explained that although our past cases had not adhered to a single test, they all had a single common thread tying them together: “these cases, in different ways, involved an exculpatory clause that failed to disclose to the signers exactly what rights they were waiving.” Id. at 81. After analyzing our prior jurisprudence, including Richards, this court distilled a two-part test governing the legitimacy of exculpatory agreements:

While the law grudgingly accepts the proposition that people may contract away their liability right to recovery for negligently caused injuries, the document must clearly, unambiguously, and unmistakably express this intention. Furthermore, the document when looked at in its entirety must clearly and unequivocally communicate the nature and significance of the waiver.

Id. at 88-89. The majority in this case reverts back to the test used in Richards while ignoring the lessons of Yauger.

[*P47] Before analyzing [**36] the exculpatory agreement, it is important to set forth precisely the nature and contents of the agreement and consider the form on which it appears as a whole. n12 The agreement in question is contained on an index card that is five and one-half inches by five and one-half inches.

The card reads:

GUEST REGISTRATION

NAME__________________________________________________

ADDRESS_______________________________________________

CITY____________________________STATE_________________

ZIP______________________HOME PHONE___________________

REASON FOR VISIT______________________________________

HOW DID YOU HEAR OF SWIMWEST?_________________________

I WOULD LIKE MEMBERSHIP INFORMATION?

YES NO DATE_________________________

WAIVER RELEASE STATEMENT

I AGREE TO ASSUME ALL LIABILITY FOR MYSELF WITHOUT REGARD TO FAULT, WHILE AT SWIMWEST FAMILIY FITNESS CENTER. I FURTHER AGREE TO HOLD HARMLESS SWIMWEST FITNESS CENTER, OR ANY OF ITS EMPLOYEES FOR ANY CONDITIONS OR INJURY THAT MAY RESULT TO MYSELF WHILE AT THE SWIMWEST FITNESS CENTER. I HAVE READ THE FOREGOING AND UNDERSTAND ITS CONTENTS. SIGNED DATE

That is the entirety of the agreement at question in this case.

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n12 A copy of the agreement is attached as an exhibit at the end of this dissent.

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – [**37]

[*P48] The first reason the majority provides for striking down the exculpatory agreement contained on this card is: “this exculpatory waiver, which uses the word ‘fault,’ is overly broad and all-inclusive.” Majority op., P18. The majority reasons that the language is ambiguous, could potentially cover a variety of claims, does not include the word “negligence,” and states that it is unclear whether the risk of drowning was within the signer’s contemplation. Majority op., PP19-22.

[*P49] “Fault,” as understood by a layperson, is defined as “[a] mistake; an error” or “responsibility for a mistake or an offense; culpability.” The American Heritage Dictionary of the English Language 665 (3d ed. 1992). Thus, the clear meaning of the first clause in the waiver is that the signer agrees to assume all liability for herself, without regard to who is responsible for any mistake leading to an injury. This language plainly covers negligent conduct. The fact that the legal definition of “fault” covers reckless and intentional acts, majority op., P19, is not dispositive. As the majority correctly indicates, waivers may not be enforced to prevent liability for reckless or intentional [**38] conduct. Id. However, neither reckless nor intentional conduct is at issue in this case. The fact that the waiver may be unenforceable as to other tortious acts is not germane; the relevant inquiry is whether “the exculpatory clause . . . fails to disclose to the signers exactly what rights they were waiving[,]” and whether the agreement unambiguously and unmistakably covers the tortious act at issue. Yauger, 206 Wis. 2d at 81, 86.

[*P50] When read in context of the remaining language of the waiver release statement, the meaning of the first sentence, containing the word “fault,” becomes even clearer. See Folkman v. Quamme, 2003 WI 116, P28 n.11, P29, 264 Wis. 2d 617, 665 N.W.2d 857 (words and phrases of a contract are to be read in context of the contract’s other language in determining ambiguity). The second sentence of the waiver provides: “I FURTHER AGREE TO HOLD HARMLESS SWIMWEST FITNESS CENTER, OR ANY OF ITS EMPLOYEES FOR ANY CONDITIONS OR INJURY THAT MAY RESULT TO MYSELF WHILE AT THE SWIMWEST FITNESS CENTER.” Thus, when the first two sentences of the waiver are read together in context, an ordinary reader would understand that she [**39] is agreeing to hold Swimwest harmless for any injuries she suffers while at Swimwest that are due to mistakes or errors for which Swimwest is responsible. In other words, a layperson would understand that the waiver applies to any negligent acts of Swimwest or its employees.

[*P51] However, the majority argues that the decedent would not have contemplated the injury that occurred, majority op., P22, and focuses on the fact that the agreement does not contain the word “negligence.” Majority op., P20. The decedent in this case went to a facility called “Swimwest” in order to swim laps as part of her physical therapy. Majority op., P3. She took her time to read the waiver and then signed it. Id., PP5, 25. Yet, the majority somehow concludes that the decedent did not contemplate the risk of drowning. Regardless of whatever other activities the waiver may or may not cover, it is almost inconceivable that a reasonable person would not understand that, at a minimum, a waiver at an aquatic facility would cover the risk of drowning. What else would such a waiver cover if not the risk of drowning?

[*P52] Must a business list in the waiver each and every conceivable form [**40] of negligence that may result in injury to a patron? The majority opinion would seem to so indicate. Majority op., P22 (“Wilson likely would not have contemplated drowning in a four-foot deep pool with a lifeguard on duty.”). Listing the myriad of ways in which the proprietor or its agents could be negligent would be unduly burdensome to a business and would necessitate a waiver that is much more than one page in length. Such a waiver, in addition to being quite lengthy, would certainly not be easy to read or understand.

[*P53] In Yauger, this court cited with approval guidelines originally developed for the Uniform Commercial Code that govern warranty disclaimers. Yauger, 206 Wis. 2d at 87 n.2. One of the guidelines is that “the language of the negligence waiver should be readable. . . . and should not be written in legal jargon.” Id. (quoting Stephanie J. Greer & Hurlie H. Collier, The Conspicuousness Requirement: Litigating and Drafting Contractual Indemnity Provisions in Texas After Dresser Industries, Inc. v. Page Petroleum, Inc., 35 S. Tex. L. Rev. 243, 265-70, Apr. 1994). By focusing on the absence of a legal term of art in the [**41] waiver—“negligence”—and the fact that the waiver did not precisely mention the exact negligent act leading to injury in this case, the majority’s rationale runs afoul of the principle that waivers should be easy to read and should not contain legal jargon.

[*P54] Next, the majority concludes that the waiver does not provide “adequate notice of the waiver’s nature and significance” because it serves two purposes. Majority op., P23. The majority states that as in Richards and Yauger, the exculpatory language here is part of a larger registration form. Majority op., P23. However, the waiver in this case is part of a simple five and one-half inch by five and one-half inch index card. The only part of the card containing contiguous complete sentences is the waiver. The remainder of the form is comprised of mere blank lines for the reader to fill in his or her contact information.

[*P55] Thus, the waiver is the only part of the form for a patron to read. The form of the waiver in this case stands in stark contrast to the waiver in Yauger, which was “one paragraph in a form containing five separate paragraphs” that did not stand out from the other language. [**42] Yauger, 206 Wis. 2d at 87. Here, the exculpatory language is the only language on the form to be read. This is not a case where the exculpatory language is located in fine print at the end of a multi-page document or even a case where the waiver is located in the midst of several paragraphs on a single page form. Aside from the blanks for contact information, the waiver is the form.

[*P56] While the top portion of the card does contain blanks for the signer to supply his or her contact information, such information would seem to be a necessary part of the waiver itself, as if injury did occur, it seems logical that the facility would be in need of the injured patron’s contact information. The fact that the top portion of the card is entitled “GUEST REGISTRATION” does not somehow alter the inherent nature of the form. Indeed, one of the guidelines cited in Yauger is that the waiver should be separately labeled to distinguish it from other parts of the agreement. Yauger, 206 Wis. 2d at 87 n.2.

[*P57] The majority also stresses that there is not a separate signature line for the waiver. Majority op., P23. However, the signature [**43] line on the form is located directly under the exculpatory language, unlike the waiver in Richards, 181 Wis. 2d at 1013. One has to wonder why there would need to be a separate signature line under the blank lines in the top portion of the form.

[*P58] The exculpatory language in this case satisfies the guidelines cited in Yauger, 206 Wis. 2d at 87 n.2. The waiver is conspicuous, as it is the only “paragraph” on the form. The waiver is set off from the remainder of the form in a separately titled section. The waiver is easy to locate. The waiver appears directly above a signature line and the waiver is the only portion of the document requiring a signature. The heading before the waiver is not misleading. The waiver itself is written in plain, easy to read language and does not contain an abundance of legal jargon. The waiver is written in large print. In other words, there is no doubt that the waiver is conspicuous and informs the signer of its nature and significance.

[*P59] Yet, the majority concludes that the waiver “was not distinguishable enough.” Majority op., P24. Apparently, the waiver would have been distinguishable if it appeared [**44] on a separate card, or if the form was multicolored and had but one more signature line, or if Swimwest had not utilized capital letters when asking for contact information. Id., PP23-24. This type of analysis elevates form over substance and fails to consider the form on which the exculpatory clause appears as whole.

[*P60] The majority states that it is clarifying the law in Wisconsin concerning exculpatory clauses. Majority op., P10. However, its application of these first two factors has done just the opposite. In Yauger we stated that a waiver appearing on a form with other language should be conspicuously labeled, set apart, and should stand out from the rest of the form. Yauger, 206 Wis. 2d at 87 & n.2. Here, this was done. Yet, the majority uses the very fact that the “Waiver Release Statement” is labeled separately from the “Guest Registration” portion to conclude that the form serves two purposes and thus does not provide adequate notice of the significance and nature of the waiver. Majority op., P23. In Yauger, we suggested that a waiver should be easy to read and should not be written in legalese. Yauger, 206 Wis. 2d at 87 & n.2. [**45] Yet, the majority faults Swimwest for not utilizing a legal term of art—“negligence”—in its waiver, and for not listing the precise act of negligence that allegedly occurred in this case. Majority op., PP20, 22.

[*P61] Further, as close reading of Yauger indicates, a document “serving two purposes” is not in and of itself questionable. Rather, the concern arises that the signer may not be aware of the nature and significance of the waiver when a document serves two purposes and the waiver is not conspicuous. Yauger, 206 Wis. 2d at 86-88. This concern is not present here because the waiver is conspicuous and, read in context, clearly indicates what is being waived. Thus, the fact that the form on which it appears arguably serves two purposes should not be dispositive.

[*P62] Finally, the majority concludes that the waiver is not valid because “there was no opportunity for Wilson to bargain over the exculpatory language[.] “ Majority op., P25. This “bargaining” requirement originated in Richards, 181 Wis. 2d at 1019-20, and was not based on any existing case law. The “bargaining” requirement was not utilized in Yauger. The dissent [**46] in Richards, which I joined, indicated that this requirement was not based on existing law and discussed the inherent problems with such a requirement. Richards, 181 Wis. 2d at 1035-43 (Day, J., dissenting). In particular, the dissent in Richards queried:

What does it mean to “negotiate” in this context, and how would [a] company ensure that the negotiations were “equal”? Are we to assess the competency of [the plaintiff] to negotiate and assume that any deficiencies must somehow be compensated for in substance by the company? . . . Or is it suggested that the company must appoint someone to help [the plaintiff] draft a counter-proposal? Must the company then negotiate—in good faith, of course—about which terms of its own release it might be willing to drop in “negotiations”? And what if, despite very skilled and fair negotiations on both sides, [the plaintiff] nevertheless agrees to accept the full release.

Richards, 181 Wis. 2d at 1041 (Day, J., dissenting).

[*P63] It is entirely impractical to require “bargaining” in this context. Almost all releases are printed on standardized forms and are a condition [**47] precedent to the use of recreational facilities. Such releases are utilized by aquatic facilities, athletic clubs, ski resorts, canoeing and rafting outfits, and other high-risk ventures such as skydiving and bungee jumping. Many of these businesses are small firms whose continued existence is based on high customer volume. Must the owner of such business, or other person with the authority to negotiate, be present at the desk of such facility during all hours of operation? Must the proprietor employ a full-time attorney whose duties include negotiating with every person in the long line of skiers waiting to brave the slopes? These businesses would grind to a halt under such practices or, at the very least, face long lines of angry customers.

[*P64] The reality is that there is almost never an opportunity to “bargain “ over exculpatory clauses, as the majority describes it. Rarely do ordinary consumers in today’s fast-paced global economy have an “opportunity” to bargain over any of the terms of a contract (other than perhaps the price), as the majority describes “bargaining.” The only meaningful “bargaining” tool that an ordinary consumer possesses is his or her choice to frequent [**48] another business.

[*P65] While Richards has not been overruled and I am bound to accept the lack of the “opportunity to bargain” as a legitimate factor in the analysis of exculpatory agreements, the use of the “bargaining” factor in this case is particularly troublesome in light of the majority’s refusal to set forth a workable standard describing what would satisfy the “opportunity to bargain” requirement and its failure to decide whether a single objectionable factor is sufficient to render an exculpatory clause invalid. Majority op., P18 n. 7. Richards, which utilized the “bargaining” test, noted that no one factor alone was sufficient to invalidate an exculpatory agreement. Richards, 181 Wis. 2d at 1011. Yauger, which did not discuss the bargaining factor, came to the opposite conclusion and held the presence of one factor was sufficient to invalidate an exculpatory clause. Yauger, 206 Wis. 2d at 87 n.1.

[*P66] The majority fails to resolve this dispute and leaves open the possibility that even an exculpatory clause that is expertly drafted, conspicuous, and appears on a separate document may be invalidated merely because [**49] the signer had no “opportunity to bargain.” As such, the majority places the legitimacy of all exculpatory agreements in doubt. If this court wishes to invalidate all exculpatory clauses, then it should so hold, rather than burdening businesses with confusing requirements that are impossible or unlikely to be met in any case.

[*P67] Individuals have a right to know what the law is so that they may conduct their affairs in an orderly fashion. The majority has failed to articulate a clear, useable test that will provide meaningful guidance to those wishing to execute exculpatory agreements. Because the majority fails to articulate such a test, fails to apply the first two factors in accordance with the guidelines set forth in Yauger, and leaves open the possibility that the lack of an “opportunity to bargain” alone is sufficient to invalidate an exculpatory agreement, I respectfully dissent.

In Nebraska a release can defeat claims for gross negligence for health club injury

Posted: April 8, 2013 | Author: Recreation Law | Filed under: Health Club, Nebraska, Release (pre-injury contract not to sue) | Tags: Alegent Health, Defendant, Fitness Center, Gross negligence, Health club, Inc., Lakeside Wellness Center, Negligence, Plaintiff, Precor, Precor USA, Release, Treadmill | Leave a comment

Manufacturer of the health club equipment was able to squeak out a win by making sure the equipment met the applicable standards when the treadmill was manufactured.

This case is a health club fitness which is interesting because it covers several legal issues in ways that most courts will not. It also points out some simple things you can do to keep yourself out of court or losing in court.

A husband and wife, plaintiffs, joined a health club. After five weeks at the club the wife, went to get on a treadmill. She did not notice it was running and upon stepping on the treadmill she was thrown backwards into an elliptical trainer. The plaintiff had an injured hand and chest from the accident.

The area around the treadmill was allegedly, not well lit, however the plaintiff had not complained about the lighting. When she stepped on the treadmill she looked at the control panel but did not look at the belt. The treadmill was in a row of treadmills and the treadmills on either side of the treadmill in question were running. The plaintiff also said the treadmill area was loud.

The plaintiff had been using treadmills for 21 years. She had been using treadmills at the defendants approximately five times a week for five weeks and had used the treadmill in question 10 to 15 times. When she joined the defendant health club she received instructions from a trainer, but she stated she did not need instructions on how to operate a treadmill. The plaintiff also had a treadmill at home.

When the plaintiff and her husband joined the defendant health club she signed two documents which contained releases. The first was titled Membership agreement what had a release that included the word negligence in the language of the contract. The second form was a health history questionnaire which was signed by the plaintiff and also included release language.

The plaintiff and her husband sued the manufacturer of the treadmill, Precor, and the health club, Lakeside Wellness Center for her injuries. She claimed both defendants were negligent and were grossly negligent. Precor was allegedly negligent in making a treadmill without proper safety features and the health club was liable for not providing adequate lighting around the treadmill. There was also a claim that the health club had modified the treadmill belt so that it was unsafe.

The trial court granted both of the defendant’s motions for summary judgment. The plaintiff appealed saying the trial court erred in:

(1) granting summary judgment in favor of Lakeside and Precor;

(2) holding that the waiver and release contained in the membership agreement and health history questionnaire signed by Palmer were clear, understandable, and unambiguous; and

(3) holding that Palmer assumed the risk of using the treadmill.

Summary of the case

The court first looked at the issue of the release. The court ignored the issues of whether the release worked against negligence and reviewed the issues of releases and claims of gross negligence. However before starting its analysis, it dismissed Precor’s argument that it was a third party beneficiary of the release.

A third party beneficiary of a contract is usually identified as someone who is not named in the agreement, but obvious to all parties that they are to receive benefits of the agreement. An example would be a contract between a health club and a supplier of fitness equipment. The third party beneficiaries of that agreement would be the membership of the health club. When the third party beneficiary is not obvious in the agreement then the third parties as usually not construed as beneficiaries and do not have an interest in the contract.

In order for those not named as parties to recover under a contract as third-party beneficiaries, it must appear by express stipulation or by reasonable intendment that the rights and interest of such unnamed parties were contemplated and that provision was being made for them. The right of a third party benefited by a contract to sue thereon must affirmatively appear from the language of the instrument when properly interpreted or construed.

Here the court found that the agreement between a member and the health club did not identify the defendant manufacture by name or by any other identification. Because of that, the manufacturer could not be a third party beneficiary of the release.

Court then went back to the issue of the claim of gross negligence. Under Nebraska law gross negligence is defined as

Gross negligence is great or excessive negligence, which indicates the absence of even slight care in the performance of a duty. 5 Whether gross negligence exists must be ascertained from the facts and circumstances of each particular case and not from any fixed definition or rule.

Under Nebraska law the court could rule on whether the allegations of the complaint give rise to gross negligence. Here the court found the allegations did not. Inadequate lighting and the installation of a new belt on the treadmill did not meet the level needed to prove gross negligence.

Precor, the making of the treadmill in its motion to the trial court presented an affidavit stating that at the time the treadmill was made the treadmill “met or exceeded the voluntary guidelines set by the American Society for Testing and Materials” The affidavit included photographs of the treadmill to show what handrails existed and the fact that treadmill came with a clip that could be attached to the user’s clothing. If the clip was pulled it would disconnect and stop the treadmill. The treadmill was also made 7 years prior to the accident.

The plaintiff hired an expert who stated that the treadmill “should” have various safety features that were not on the treadmill. The court took note that the plaintiff’s expert did not say the treadmill had to have, did not speak in absolutes with regard to the safety features. Because the plaintiff’s expert was hesitant or could not be explicit on what was missing the court held that Precor was not negligent.

A third defense was raised on appeal, assumption of the risk, by the defendants. Because the court had dismissed the claims raised by the plaintiff already, the court did not get into that defense.

So Now What?

Obviously the better your release the greater your chances of winning. However there are several other issues here that you should pay attention too.

The plaintiff claimed that her injury was due to the fact the new belt on the treadmill did not contain markings that would indicate the treadmill was moving. If you replace or repair something, make sure you use equipment that meets the manufactures specs when you bought the machine or better. If the manufacturer had markings on the treadmill belt that indicated that the belt was moving you need to install a replacement belt that has similar markings.

Moreover, if you have the opportunity, whether or not the original belt was marked, to install a belt with markings, why not.

The assumption of the risk defense was not discussed by the court in its analysis, but was definitely part of the facts. In this case the defense team was able to elicit a lot of treadmill experience from the plaintiff. Many times, after an accident, the plaintiff will change their story. Getting experience or history up front is always safer.

And why not!

Why not include in your release language that protects everyone you can from litigation. There was a claim by the husband that one of the people running on the treadmill next to the one at issue had left that treadmill on. In some states, that would be enough to bring that other gym member into the suit. Write your release to keep you out of a lawsuit, also write it to keep everyone associated with your or that you benefit from out of the lawsuit. Just because you might not be named as the negligent party, you can still be brought in by the person who is named as the defendant. Protect you, your employees, other guests, visitors, volunteers, sponsors, and manufacturers dependent on what you do.

How many new customers are going to sign up as members if the word gets out you allowed one of them to be sued for an accident to another member.

If you do hear of problems from your guests or members, you need to respond. One issue that would have made the outcome different in this case would be a stack of “accident forms” or complaints about the lighting. If the plaintiff could prove that the lighting was bad because other people had complained about it or blamed it for their injuries, then I believe this would have had a different outcome. Don’t collect paperwork, solve problems.

Plaintiff: April Palmer

Defendant: Lakeside Wellness Center, Doing Business as Alegent Health, and Precor, Inc.

Plaintiff Claims: Negligence and Gross Negligence

Defendant Defenses: Release, Assumption of the Risk

Holding: for the defendants

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SUPREME COURT OF NEBRASKA

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

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Palmer v. Lakeside Wellness Center, 281 Neb. 780; 798 N.W.2d 845; 2011 Neb. LEXIS 62

Posted: April 8, 2013 | Author: Recreation Law | Filed under: Assumption of the Risk, Health Club, Legal Case, Nebraska, Release (pre-injury contract not to sue) | Tags: Alegent Health, Appeal, Appellant, Fitness Center, Gross negligence, Health club, Inc., Lakeside Wellness Center, Negligence, Precor, Release, Summary judgment, Treadmill, Waiver | Leave a comment

Palmer v. Lakeside Wellness Center, 281 Neb. 780; 798 N.W.2d 845; 2011 Neb. LEXIS 62

April Palmer, Appellant, v. Lakeside Wellness Center, Doing Business as Alegent Health, and Precor, Inc., Appellees.

No. S-10-974.

281 Neb. 780; 798 N.W.2d 845; 2011 Neb. LEXIS 62

June 24, 2011, Filed

PRIOR HISTORY: [***1]

Appeal from the District Court for Douglas County: JOSEPH S. TROIA, Judge.

DISPOSITION: AFFIRMED.

HEADNOTES

1. Summary Judgment: Appeal and Error. An appellate court will affirm a lower court’s granting of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.

2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, the court views the evidence in the light most favorable to the party against whom the judgment was granted, and gives that party the benefit of all reasonable inferences deducible from the evidence.

3. Contracts: Parties: Intent. In order for those not named as parties to recover under a contract as third-party beneficiaries, it must appear by express stipulation or by reasonable intendment that the rights and interest of such unnamed parties were contemplated and that provision was being made for them.

4. Contracts: Parties. The right of a third party benefited by a contract to sue must affirmatively appear from the language of the instrument when properly inter preted or construed.

5. Negligence: Words and Phrases. Gross negligence is great or excessive negligence, which indicates the absence of even slight care in the performance of a duty.

6. Negligence. Whether gross negligence exists must be ascertained from the facts and circumstances of each particular case and not from any fixed definition or rule.

7. Negligence: Summary Judgment. The issue of gross negligence is susceptible to resolution in a motion for summary judgment.

COUNSEL: Heather Voegele-Andersen and Brenda K. George, of Koley Jessen, P.C., L.L.O., for appellant.

David L. Welch and Ashley E. Dieckman, of Pansing, Hogan, Ernst & Bachman, L.L.P., for appellee Lakeside Wellness Center.

Albert M. Engles and Cory J. Kerger, of Engles, Ketcham, Olson & Keith, P.C., for appellee Precor, Inc.

JUDGES: HEAVICAN, C.J., CONNOLLY, GERRARD, STEPHAN, and MCCORMACK, JJ. WRIGHT and MILLER-LERMAN, JJ., not participating.

OPINION BY: HEAVICAN

OPINION

[**847] [*781] Heavican, C.J.

INTRODUCTION

The appellant, April Palmer, was injured while on a treadmill at Lakeside Wellness Center (Lakeside). The district court granted summary judgment in favor of Lakeside, doing business as Alegent Health, and Precor, Inc. Palmer appeals. We affirm.

FACTUAL BACKGROUND

Palmer’s Accident.

Palmer and her husband joined Lakeside in November 2006. The accident occurred several months later, on March 7, 2007. On that date, Palmer approached the treadmill in question to begin her workout. Unaware that the treadmill belt was running, Palmer stepped onto the treadmill from the back and was thrown off the belt and into an elliptical training [**848] machine located behind [***2] her. During her deposition, Palmer stated that she looked at the treadmill’s control panel before getting on, but did not look at the belt of the treadmill. Palmer indicated that had she looked at the belt, she probably would have been able to see that it was operating, but that since she assumed the treadmill was off, she did not look further. According to Palmer, she thought the area was poorly lit, though she had never complained about it to any Lakeside staff members. And Palmer indicated that the facility was loud and that she was unable to hear whether the machine was operating.

This treadmill was located in a row of treadmills, and the treadmills to the right and left of the machine in question were [*782] being used at the time of the accident. In Palmer’s husband’s deposition, he testified that the woman on a neighboring treadmill told him she had been on that treadmill briefly before switching to the neighboring machine and had mistakenly thought she had turned it off.

Palmer’s Familiarity With Treadmills.

During her deposition, Palmer was asked about her exercise history and her familiarity with treadmills. Palmer testified that she and her husband had been members of other gyms prior [***3] to joining Lakeside. Palmer testified that she received instruction from a trainer after joining Lakeside, though she stated that she did not need specific instruction on how to operate a treadmill. According to Palmer’s testimony, she had been using treadmills for approximately 21 years. At the time of the accident, Palmer had been using the Lakeside facility at least 5 times a week and had used that actual treadmill 10 to 15 times total prior to the accident. Palmer also testified that she had a treadmill in her home.

Palmer’s Membership Agreement and Health History Questionnaire.

At the time Palmer and her husband became members at Lakeside, Palmer filled out and signed a membership agreement and a health history questionnaire. The membership agreement provided:

WAIVER AND RELEASE–You acknowledge that your attendance or use of [Lakeside] including without limitation to your participation in any of [Lakeside’s] programs or activities and your use of [Lakeside’s] equipment and facilities, and transportation provided by [Lakeside] could cause injury to you. In consideration of your membership in [Lakeside], you hereby assume all risks of injury which may result from or arise out of your [***4] attendance at or use of [Lakeside] or its equipment, activities, facilities, or transportation; and you agree, on behalf of yourself and your heirs, executors, administrators, and assigns to fully and forever release and discharge [Lakeside] and affiliates and their respective officers, directors, employees, agents, [*783] successors and assigns, and each of them (collectively the “Releasees”) from any and all claims, damages, rights of action or causes of action, present or future, known or unknown, anticipated or unanticipated, resulting from or arising out of your attendance at or use of [Lakeside] or its equipment, activities, facilities or transportation, including without limitation any claims, damages, demands, rights of action or causes of action resulting from or arising out of the negligence of the Releasees. Further, you hereby agree to waive any and all such claims, damages, demands, rights of action or causes of action. Further you hereby agree to release and discharge the Releasees from any and all liability for any loss or theft of, or damage to, personal property. You acknowledge that you have [**849] carefully read this waiver and release and fully understand that it is a waiver [***5] and release of liability.

The health history questionnaire signed by Palmer stated in relevant part as follows:

1. In consideration of being allowed to participate in the activities and programs of [Lakeside] and to use its facilities, equipment and machinery in addition to the payment of any fee or charge, I do hereby waive, release and forever discharge [Lakeside] and its directors, officers, agents, employees, representatives, successors and assigns, administrators, executors and all other [sic] from any and all responsibilities or liability from injuries or damages resulting from my participation in any activities or my use of equipment or machinery in the above mentioned activities. I do also hereby release all of those mentioned and any others acting upon their behalf from any responsibility or liability for any injury or damage to myself, including those caused by the negligent act or omission of any way arising out of or connected with my participation in any activities of [Lakeside] or the use of any equipment at [Lakeside]. . . .

2. I understand and am aware that strength, flexibility and aerobic exercise, including the use of equipment are a potentially hazardous activity. [***6] I also understand that fitness activities involve the risk of injury and even death, [*784] and that I am voluntarily participating in these activities and using equipment and machinery with knowledge of the dangers involved. I hereby agree to expressly assume and accept any and all risks of injury or death. . . .

Palmer sued Lakeside and Precor for her injuries, which generally consisted of an injured hand and chest. Both Lakeside and Precor filed motions for summary judgment, which were granted. Palmer appeals.

ASSIGNMENTS OF ERROR

Palmer assigns that the district court erred in (1) granting summary judgment in favor of Lakeside and Precor; (2) holding that the waiver and release contained in the membership agreement and health history questionnaire signed by Palmer were clear, understandable, and unambiguous; and (3) holding that Palmer assumed the risk of using the treadmill.

STANDARD OF REVIEW

[1] [HN1] An appellate court will affirm a lower court’s granting of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as [***7] a matter of law. ¹

1 Wilson v. Fieldgrove, 280 Neb. 548, 787 N.W.2d 707 (2010).

[2] [HN2] In reviewing a summary judgment, the court views the evidence in the light most favorable to the party against whom the judgment was granted, and gives that party the benefit of all reasonable inferences deducible from the evidence. ²

2 Id.

ANALYSIS

Waiver and Release.

Palmer first argues that the district court erred in finding that the waiver and release contained in the membership agreement and health history questionnaire she completed and signed when joining Lakeside were clear, understandable, and unambiguous. We read Palmer’s argument as contending that the waivers, [**850] while perhaps applicable to instances of ordinary negligence, [*785] could not operate to relieve Lakeside or Precor from gross negligence or willful and wanton misconduct. We further understand Palmer to argue that both Lakeside and Precor committed gross negligence or willful and wanton misconduct–Precor by delivering a treadmill without proper safety features, and Lakeside by not providing adequate space or lighting around the treadmill and by modifying the treadmill’s belt such that the treadmill became unsafe.

[3,4] Before reaching the merits [***8] of Palmer’s argument, we note that contrary to Precor’s argument, Precor is not protected from liability as a result of the waivers signed by Palmer. Precor contends in its brief that it is a third-party beneficiary of these waivers. This court recently addressed a similar issue in Podraza v. New Century Physicians of Neb. ³ In Podraza, we noted that we have traditionally strictly construed who has the right to enforce a contract as a third-party beneficiary.

[HN3] In order for those not named as parties to recover under a contract as third-party beneficiaries, it must appear by express stipulation or by reasonable intendment that the rights and interest of such unnamed parties were contemplated and that provision was being made for them. The right of a third party benefited by a contract to sue thereon must affirmatively appear from the language of the instrument when properly interpreted or construed.

Authorities are in accord that one suing as a third-party beneficiary has the burden of showing that the provision was for his or her direct benefit. Unless one can sustain this burden, a purported third-party beneficiary will be deemed merely incidentally benefited and will not be permitted [***9] to recover on or enforce the agreement. ⁴

3 Podraza v. New Century Physicians of Neb., 280 Neb. 678, 789 N.W.2d 260 (2010).

4 Id. at 686, 789 N.W.2d at 267.

A review of the record shows that Precor was not explicitly mentioned in the language of the waiver. Nor is there any other evidence that Precor was an intended third-party beneficiary. Precor has the burden to show its status as a third-party beneficiary, and it has failed to meet that burden. As such, Precor [*786] is not shielded from liability as a result of the waivers signed by Palmer.

Lakeside’s Gross Negligence or Willful and Wanton Conduct.

At oral argument, Palmer conceded that by virtue of these waivers, Lakeside was not liable to Palmer for damages caused by ordinary negligence. But, as noted above, Palmer contends that Lakeside is nevertheless liable, because its actions were grossly negligent or were willful and wanton.

Having examined the record in this case, we find that as a matter of law, Palmer’s allegations against Lakeside do not rise to the level of gross negligence. Palmer alleges that the Lakeside facility had inadequate lighting and inadequate spacing between equipment and that Lakeside’s employees modified the treadmill [***10] in question by installing a treadmill belt that did not contain markings.

[5-7] [HN4] Gross negligence is great or excessive negligence, which indicates the absence of even slight care in the performance of a duty. ⁵ Whether gross negligence exists must be ascertained from the facts and circumstances of each particular case and not from any fixed definition or rule. ⁶ [**851] The issue of gross negligence is susceptible to resolution in a motion for summary judgment. ⁷ We simply cannot conclude that the allegations against Lakeside–inadequate lighting and spacing and the installation of a new treadmill belt–rise to such a level. We therefore conclude that as a matter of law, any negligence by Lakeside was not gross negligence or willful or wanton conduct. As such, the district court did not err in granting Lakeside’s motion for summary judgment.

5 Bennett v. Labenz, 265 Neb. 750, 659 N.W.2d 339 (2003).

6 Id.

7 Id.

Precor’s Negligence.

We next turn to the question of whether the district court erred in granting summary judgment in favor of Precor. Because we concluded above that the waiver signed by Palmer did not [*787] act to relieve Precor from liability, we address whether there was a genuine issue of material [***11] fact on the issue of whether Precor breached any duty it had to Palmer.

In arguing that Precor was liable, Palmer alleges that Precor breached its duty by not equipping the treadmill with (1) a safety feature that would prevent the treadmill from operating when no one was on it and (2) handrails extending down the sides toward the back of the treadmill. Palmer originally argued that Precor was also liable because the belt on its treadmill failed to contain adequate markings, but it is this court’s understanding that Palmer no longer makes such allegations with regard to Precor because the belt on the treadmill at the time of the incident was not original to the treadmill and had been installed by Lakeside.

In response to Palmer’s allegations, Precor introduced evidence in the form of an affidavit from its director of product development, Greg May. May averred that at the time of manufacture and delivery, the treadmill met or exceeded the voluntary guidelines set by the American Society for Testing and Materials in that group’s international standard specifications for motorized treadmills in all ways, including handrails. Though there was no specific feature on this treadmill designed [***12] to stop the treadmill from running when no one was operating it, the machine was manufactured with a clip to be attached to the user’s clothing. The manual for this treadmill noted that “by taking this precaution, a tug on the safety switch cord trips the safety switch and slows the running speed to a safe stop.” May also averred that the treadmill in question left Precor’s control on July 29, 1999, or over 7 years prior to the date of the incident.

In addition to May’s affidavit, Precor also introduced photographs of the treadmill at issue, which photographs showed that the treadmill did have front handrails, though not side handrails.

In an attempt to rebut May’s affidavit and show a genuine issue of material fact, Palmer introduced the affidavit of a fitness consultant. That affidavit noted in part that

based on [the consultant’s] experience, in order for treadmills to meet appropriate safety standards from the late [*788] 1990s forward, treadmills should contain adequate safety features, emergency/safety stop mechanisms, warning labels, and markings on a treadmill belt. A treadmill should contain a safety stop mechanism such that the treadmill will turn off if no one is currently on the [***13] treadmill, adequate handrails extending towards the back of the treadmill and warning labels at the rear of the treadmill.

Even after drawing all reasonable inferences in favor of Palmer, we conclude that there is no genuine issue of material fact as to Precor’s alleged breach of duty. While the fitness consultant’s affidavit indicates that treadmills “should” contain [**852] various safety features, he does not speak in absolutes and does not refer specifically to this treadmill. On the other hand, May’s affidavit references the treadmill at issue in this case and details the safety features this treadmill possessed, as well as Precor’s compliance with all applicable, though voluntary, safety standards when manufacturing the treadmill. Because the record affirmatively shows that Precor did not breach any duty it owed to Palmer, we conclude that the district court did not err in granting Precor’s motion for summary judgment.

Assumption of Risk.

Palmer also argues that the district court erred in finding that she assumed the risk of injury when she used the treadmill. Because we conclude that the district court did not err in granting Lakeside’s and Precor’s motions for summary judgment for the [***14] foregoing reasons, we need not address Palmer’s assignment of error regarding the assumption of the risk.

CONCLUSION

The district court’s order granting summary judgment in favor of Lakeside and Precor is affirmed.

AFFIRMED.

Wright and Miller-Lerman, JJ., not participating.

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Delaware decision upholds a release signed by a parent against a minor’s claims

Posted: August 13, 2012 | Author: Recreation Law | Filed under: Delaware, Health Club, Playground | Tags: Adventure travel, DE, Delaware, Delaware Supreme Court, Hockessin Delaware, Minor, New Castle County Delaware, Release | Leave a comment

Hong v. Hockessin Athletic Club, 2012 Del. Super. LEXIS 340

One more state recognizes the need to allow people to decide to waive a claim to allow their children to participate.

In this case, the mother of the injured child filed a claim after the child was hurt on playground equipment at a health club. The child was three years old when he fell and broke his arm.

The release was contained in the Membership Application and Agreement. Both parents signed the agreement and listed their three children on the agreement as members of the club.

The plaintiffs sued for negligence, which was not clearly defined in the case or as set forth by the court in the complaint.

Summary of the case

Delaware requires that the language in a release be crystal clear and unequivocal. The parties to the release must contemplate a release when they make the agreement. The crystal clear and unequivocal language is met if the contract provisions include language “specifically referring to the negligence of the protected party.” The court in reviewing the release stated:

Here, Hong signed a comprehensive waiver of liability and release in connection with her Membership Agreement that expressly stated that she (and all others on her membership) assumed the risk of “any injury or damage incurred while engaging in any physical exercise or activity or use of any club facility on the premises,” including the use of “any equipment in the facility” and participation “in any activity, class, program, instruction, or any event sponsored by HAC.”

HAC is the acronym for the defendant health club, Hockessin Athletic Club.

The plaintiff argued that the release only applied to activities “sponsored” by HAC such as classes, not just injuries from being there.

The court then looked at the complaint on its whole and found the complaint failed to allege any claim of negligence with specificity. Consequently, the court found the complaint also was to be dismissed because the complaint failed to state a claim.

So Now What?

Maybe this will place Delaware in the category of a state where a parent can sign away a minor’s right to sue. However, this is a decision of the trial court, and this case can still be appealed to the Delaware Supreme Court. If this case is not appealed, it may be the start.

So for the time being, you cannot rely on this case, and you probably can only rely on it if it is not appealed for the County of New Castle Delaware.

This case also points out the importance of making sure your release is written correctly. Here the court stated that a release must include the word negligence of the defendant or person to be protected.

James H. “Jim” Moss

Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers, avalanche beacon manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us

Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management

Outdoor Recreation Insurance, Risk Management, and Law

and Law.

To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.

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Author: Outdoor Recreation Insurance, Risk Management and Law