Judge: Craig Griffin, Case: "Latimer vs. Ultimate Fitness Group, LLC", Date: 2022-08-22 Tentative Ruling

The motion by defendant MJD LLC (“MJD”) for summary judgment or alternatively summary adjudication in its favor and against plaintiff Kelly Latimer (“plaintiff”) is DENIED. 

Summary Judgment Standards

The pleadings define the issues for a summary judgment motion. (Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351, 1355)

Under CCP 437c(p)(2), a defendant seeking summary judgment must show that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action.

“The party moving for summary judgment bears the initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850) The burden will shift to the plaintiff only if a defendant meets its initial burden. (Mackey v. Board of Trustees of California State University (2019) 31 Cal.App.4th 640, 662).

Plaintiff’s Complaint states one cause of action for gross negligence.

On 10/8/2018, plaintiff, a member of OrangeTheory Fitness (“OTF”) gym was attending a “stations class” where members work out on the floor, rowing machines and treadmills.  (Complaint ¶¶8-11) She stumbled and fell while running on the treadmill, (Id. at ¶12) and was tossed into the rowing machines located directly behind the treadmill. (Id. at ¶13) Upon hitting the rowing machines, plaintiff was tossed forward and sustained significant injuries. (Id. at ¶14)

At the time of the incident, the owner’s manual for the subject treadmill required at least eight feet of clearance behind the treadmill and two feet of clearance on either side to prevent injury. (Id. at ¶16) However, the treadmill plaintiff was running on had approximately 3 feet of clearance behind it and 6 inches of clearance on each side. (Id. at ¶17)

Defendants had access to the owner’s manual for the treadmill and knew or should have known about the clearance requirements, (Id. at ¶18) but intentionally placed all such machines, including the treadmill plaintiff was using, in a manner that violated the manufacturer’s explicit safety zone requirements, (Id. at ¶20) Defendants placed the exercise machines too close together so they could have more machines for more customers in a smaller space for more profit. (Id. at ¶36) Placing exercise machines in the safety zone greatly increases the risk of injury to the gym user. (Id. at ¶32) Defendants’ failure to follow the manufacturer’s requirements was a breach of duty and extreme departure from the ordinary standard of care (Id. at ¶39) and caused plaintiff’s injuries because she fell in the safety zone area. (Id. at ¶¶21, 41)  

Merits

MJD moves for summary judgment or alternatively summary adjudication of two issues: (1) that plaintiff’s claim is barred by the express release of liability contained in plaintiff’s Membership Agreement and Client Intake Form and (2) that MJD’s 10^th affirmative defense of assumption of the risk or 12^th affirmative defense - the doctrine of waiver - bar the “negligence claims”.

Waiver/Express Release of Liability

MJD established that prior to participating in the fitness class, plaintiff executed two Membership Agreements and a Client Intake Form. (MJD UMF 1, 4-7) The Agreements contain a “Disclaimer of Liability” which provides that the member knowingly and voluntarily waives any cause of action of any kind whatsoever arising as a result of any physical activity from which any liability may or could accrue to MJD dba OTF. (MJD UMF 2). Plaintiff signed that she understood the Agreement and agreed to comply in full with the terms and conditions stated therein. (MJD UMF 3)

The Client Intake Form signed by plaintiff provides, in part, that she agreed to assume full responsibility while voluntarily participating in any training class at defendant’s facility and that she understood and agreed there is a risk of injury associated with participating in any exercise program. (MJD UMF 4-5).

The Client Intake Form also includes a waiver and release of liability providing, in part, that the use of defendant’s equipment shall be undertaken at plaintiff’s sole risk and that she assumed full responsibility for any and all damages and injuries or losses, “including without limitation those damages from acts of passive or active negligence on the part of the Studio, the Facility, the Studio instructors, officers, directors, employees, or agents.”  The waiver and release of liability clause further states that: “Client hereby waives all claims against the Studio Parties and/or any successor assigns and all claims, demands, injuries, damages, actions, or causes of action, whatsoever to my person or property arising out of or connected to the services, facilities, exercises classes, or the facility…” Plaintiff acknowledged that she had read that paragraph and fully understood that it was a waiver and release of liability.  (MJD UMF 4)

As noted above, plaintiff’s complaint pleads one cause of action for gross negligence. Gross negligence is pleaded by alleging the traditional elements of negligence including duty, breach, causation, and damages, along with conduct by the defendant involving either ‘want of even scant care’ or ‘an extreme departure from the ordinary standard of conduct.’. (Chavez v. 24 Hour Fitness USA, Inc. (2015) 238 Cal.App.4th 632, 640; Decker v. City of Imperial Beach (1989) 209 Cal.App.3d 349, 358)

“[A]n 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.” (City of Santa Barbara v. Superior Court (“Santa Barbara”) (2007) 41 Cal.4th 747, 750)

While releases of liability concerning ordinary negligence related to gymnasiums and fitness clubs have been upheld (See Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351) those cases are inapposite where gross negligence is alleged. 

MJD ignores that Latimer’s complaint alleges only one cause of action for gross negligence and instead treats the complaint as if it pleads ordinary negligence alone. MJD provides no evidence to demonstrate that its conduct regarding placement of the treadmill did not constitute gross negligence. Nor does it cite to authority holding that a release of liability such as the one signed by the plaintiff here is enforceable where gross negligence is alleged.

As MJD failed to make a prima facie showing that its conduct did not amount to gross negligence, it has also failed to establish that the waiver/release/disclaimer of liability that plaintiff signed bars her action.

Assumption of the Risk

A release containing a comprehensive assumption of all risks associated with a recreational activity may constitute a complete defense based on ordinary negligence. (Hass v. RhodyCo Productions (2018) 26 Cal.App.5th 11, 2328) Since plaintiff pleads gross negligence, MJD has not shown that the assumption of the risk clause in the Client Intake Form she signed constitutes a complete defense.

The primary assumption of the risk doctrine recognizes that some activities, including sports, are inherently dangerous, and that when the primary assumption of the risk doctrine applies to a recreational activity, the operators owe participants only the duty not to act so as to increase the risk of injury over that inherent in the activity. (Id. at p. 35-36) The primary assumption of the risk doctrine does not act as a complete bar to an action where there is a triable issue of material fact as to whether the defendant was grossly negligent. (Id. at pp. 40-41).

The test for application of the doctrine is whether the activity involves an inherent risk of injury to the participants where the risk cannot be eliminated without altering the fundamental nature of the activity. (Grotheer v. Escape Adventures, Inc. (2017) 14 Cal.App.5th 1283, 1297) Primary assumption of risk does not eliminate an operator’s duty to refrain from engaging in reckless conduct that unreasonably increases the risk of injury beyond those inherent in the activity. (Id. at p. 1298)

Because MJD did not establish that it was not grossly negligent with respect to placement of the subject treadmill or that its placement of the treadmill in violation of the owner’s manual recommendations did not unreasonably increase the risk of injury beyond that inherent in using a treadmill, MJD has also failed to establish that the primary assumption of the risk doctrine bars plaintiff’s complaint.

Although plaintiff did not oppose the motion, MJD failed to meet its burden on all issues, and thus the burden did not shift to plaintiff to raise a triable issue of material fact.

MJD’s motion is DENIED in its entirety.

MJD to give Notice of Ruling.