Sticking To It


Zipusch v. LA Workout, Inc. (California)
(Woman Falls Due to Sticky Substance on Treadmill; Poorly Worded Waiver and Release Fails to Protect the Health Club from Negligence Liability)

In October of 2004, the plaintiff signed a “Membership Agreement” and, thereafter, became a member of the defendant health club’s facility. On December 10, 2004, plaintiff allegedly sustained injuries when her foot became stuck to a sticky substance on a treadmill at the facility, causing her to lose her balance. Plaintiff filed a complaint against the facility for general negligence and premises liability, alleging its failure to inspect and maintain the exercise equipment resulted in the sticky substance remaining on the treadmill. The defendant filed a motion for summary judgment based upon the waiver and release and express assumption of the risk provisions in the agreement, and it alternatively argued that it did not have actual or constructive notice of the allegedly dangerous condition. The trial court granted the defendant’s motion, and the plaintiff appealed.

On appeal, the court analyzed the “readily identifiable” release and assumption of the risk language, which was located at the bottom of the front page on the double-sided membership agreement. The defendant argued that the provision exculpated the facility from all claims arising during a member’s use of the athletic facilities. However, the plaintiff argued that the release only barred claims against the facility caused by negligent third party conduct. Plaintiff also argued that the language of the agreement was ambiguous and that ambiguities should be read against the facility since they drafted it. In either event, plaintiff argued the agreement did not bar her claim against the facility for its own negligence.

Quoting the provision, the court noted that the pertinent provision provided that the plaintiff released the facility “from the negligence or other acts of anyone else using [the facility].” However, it did not explicitly protect the facility from its own negligent conduct. In fact, to the contrary, the provision stated that the plaintiff was required to “defend and indemnify LA Workout for any negligence EXCEPT the sole negligence of the club.” Therefore, the court concluded that the most reasonable interpretation of the release and assumption of risk provision was the parties’ intention to exculpate the facility from injuries, whether self-inflicted or caused by other members, sustained from the inherent risks of exercising at a the club. It did not contemplate exculpating the facility from its own negligence. The court further agreed with plaintiff that any ambiguity should be read against the drafter of the document. Accordingly, the court held that it was improper for the trial court to rule that the membership agreement barred plaintiff’s negligence and premises liability action.

Secondarily, the court also held that the plaintiff had raised a triable issue regarding whether the defendant had actual or constructive notice of the allegedly dangerous condition. Plaintiff, via declaration, stated that, based on her own observations, 85 minutes had elapsed between the time of the accident and the last time a gym employee had inspected and cleaned the equipment. Additionally, at his deposition, an assistant manager of the facility testified that the undersides of treadmill belts were not inspected in the normal course by gym employees monitoring the exercise area throughout the day. Plaintiff argued, and the court agreed, that a reasonable trier of fact could find that the facility should have known of the condition and that it negligently inspected and maintained its exercise equipment.

NOTE: This is yet another example of inadequate proactive risk management.  If prior to this incident the membership agreement had been reviewed, revised, and properly presented, it would have been sufficient to bar the plaintiff’s negligence-based claims.  From the moment the motion was denied until the point that this case is ultimately resolved via trial or settlement, the money spent by the insurer was unnecessary, and it certainly would have been better spent on risk management, including legal contracts reviews.  Based on the waiver and release and express assumption of the risk language found in the agreement, this appears to have been the correct result.

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