Headline: Water is Wet – Defendant Wins Health Club Locker Room Slip and Fall Case (OH)


Daher v. Bally’s Total Fitness (Ohio)

The plaintiff was a member of the defendant’s health club.  On a visit to the club, she slipped and fell on a wet surface in the locker room.  Plaintiff filed an action against the defendant alleging negligent maintenance of the premises.  The defendant filed a motion to summary judgment based upon the “open & obvious doctrine” and the contract signed by members containing clear and unequivocal release language.  The plaintiff did not oppose the motion, and the trial court granted the defendants’ motion.  Despite not having opposed the motion, the plaintiff appealed the ruling.

On appeal, the Court of Appeals of Ohio affirmed the trial court ruling.  First, the Court explained that despite the fact that the plaintiff had not opposed the motion, the defendant was not entitled to summary judgment absent proof that such judgment was appropriate.  Looking at the evidence, the Court concluded that “the wet condition of the locker room near the pool area was open and obvious.”  Plaintiff argued that the doctrine should not apply because “there was no alternative route or other means available for [her] to protect herself from the hazard posed by the wet floor,” but the Court was unconvinced.

The Court explained that the defendant was not an insurer of the plaintiff’s (an invitee) safety.  At the time of the incident, the plaintiff was returning from the pool area in her wet swimsuit, and the Court stated “[w]et floors in locker room areas adjacent to swimming pools are not extraordinary conditions but rather are conditions which a reasonable person would expect in such areas.”  The plaintiff had testified that she was aware that the area of the incident became slippery and that she needed to exercise care when using that area.  The defendant did not cause the condition and there was no evidence that it had any actual knowledge of the condition.  There was no evidence as to how long the condition existed, and no member of the club had reported the condition on that day.  It was not the exclusive route that plaintiff could have traveled.  Although there weren’t any handrails or floor mats placed in the area of the incident, the Court noted that there were no such requirements under any statute or building code.

On the issue of the release language in the membership agreement, the defendant presented evidence to show that in order to gain admittance to the club, the plaintiff had to swipe her membership card on each visit, and the card contained her name, photograph, and the following language: “Use of this card or club acknowledges agreement to comply with club rules and written membership contract, including but not limited to the waiver and release of liability from any and all claims or causes of action arising out of our negligence for personal injury or theft of property.”  The defendant’s published rules and regulations contained detailed waiver and release and assumption of risk language.  Plaintiff conceded that she had a membership card and that she used it to access the club, but she denied seeing the language printed on her card and denied having seen the defendant’s rules and regulations.  She further denied having ever signed a waiver and release or assumption of risk document at the club.  The trial court had granted the defendant’s motion in part due to the release language associated with plaintiff’s membership, and on appeal the plaintiff contended that the trial court erred in that respect because there was no evidence that she had actually executed a contract with release language.  On appeal, the Court determined the issue to be “moot” in light of the fact that the Court had affirmed the trial court’s decision based on the open and obvious doctrine.

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