Archive for the ‘Execution’ Category

¡Peligro! – Woman Falls from Treadmill; Waiver Fraud and Gross Negligence Alleged (CA)

July 17, 2015

Jimenez v. 24 Hour Fitness USA, Inc. (California)

The plaintiff fell backwards off a moving treadmill at the defendant’s workout facility and suffered severe head injuries when she hit her head on the exposed steel foot of a leg exercise machine that had been placed behind the treadmill.  Plaintiff filed an action against the workout facility, alleging premises liability, general negligence, and loss of consortium.  Plaintiff contended that the defendant was grossly negligent in setting up the treadmill in a manner that violated the manufacturer’s safety instructions.  The defendant moved for summary judgment based on the liability release that plaintiff signed when she joined the facility.  The trial court granted the defendant’s motion, and the plaintiff appealed. (more…)

Stuck Between a Dumbbell and a Hard Place – Fitness Club Members Claims RE Smashed Finger Dismissed (TX)

May 12, 2015

 

Grijalva v. Bally Total Fitness (Texas)

Plaintiff had been a member of defendant’s health and fitness club for many years.  When he joined, plaintiff signed a detailed Membership Application, which included waiver and release and assumption of risk language.  About a year after he joined, plaintiff was injured while lifting weights.  His finger was caught between his own weights and a set of weights that was left on the floor by another member, causing disfigurement and loss of use.  Plaintiff sued the defendant club for premises liability, negligence, intentional infliction of emotional distress, breach of common law warranty, fraudulent inducement, and breach of contract.  In particular, plaintiff alleged that there were “several weights or dumbbells left around the various benches nearby [the bench where he was lifting weights] that were not returned to their regular and specific rack locations.”  A set of those weights left by another member caused plaintiff’s injury.  The intentional conduct claim was based on plaintiff’s allegation that the defendant failed to assist him “in mitigating the extent of his injuries to his finger” by “failing to summon medical assistance immediately.”

Defendant moved for summary judgment, contending (1) plaintiff had waived his right to pursue his negligence claims by executing the waiver and release provisions of the Membership Application, and (2) plaintiff could not provide evidence of all essential elements of his remaining claims.  Initially, plaintiff asserted that he did not sign a waiver and release in the Membership Agreement (he claimed that while he signed the second page of the agreement, the waiver and release provision is on the third page, which he did not sign), that he did not “speak and write English properly,” and that the club did not discuss the waiver and release with him.  He also argued that the waiver and release in the Membership Application did not meet Texas’ “fair notice requirement” because it was not conspicuous.  The trial court granted the club’s motion, dismissing plaintiff’s claims, and plaintiff appealed.

(more…)