Archive for the ‘Membership Application’ Category

Maintenance Mystery – Gross Negligence is an Issue of Fact for Jury in Fitness Club Equipment Case (CA)

August 7, 2015

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

Plaintiff suffered a traumatic brain injury when the back panel of a “FreeMotion cable crossover machine struck her in the head at the defendant’s workout facility.  Plaintiff filed a complaint alleging claims for ordinary and gross negligence and strict product liability.  The defendant moved for summary judgment arguing (1) the written release of liability in its membership application was a complete defense to the negligence claims, (2) it could not be liable under a products liability claim because it was a service provide and it was not in the chain of commerce, and (3) the plaintiff could not reasonably demonstrate an extreme departure from the ordinary standard of care or a failure to exercise scant care which was required to state a claim for gross negligence because the defendant’s technician routinely inspected the equipment and performed preventative maintenance on it.

Plaintiff opposed the motion, and, in the alternative, sought a continuance of the motion based on the fact that the defendant claimed that it was unable to produce the maintenance technician for deposition because he was not longer employed by defendant and he could not be found.  The trial court denied plaintiff’s motion to continue, noting that the maintenance technician had been identified many months before the defendant filed its motion for summary judgment, but plaintiff elected not to subpoena him until after it received the motion.  The trial court then granted the defendant’s motion finding (1) the primary purpose of the membership agreement was the provision of fitness services such that defendant could not be held strictly responsible under the products liability claim, (2) the ordinary negligence and premises liability claims were barred by the release of liability in the membership agreement, and (3) the defendant had met its burden to show it was not grossly negligent by establishing “it had a system of preventative and responsive maintenance of its equipment.”  Plaintiff appealed the trial court decision, but only as to the ruling on its motion to continue and as to the gross negligence claim. (more…)

¡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…)

Up the Creek Without a Row Machine – Claim of Man Injured at Fitness Facility Barred by Membership Agreement (DE)

July 13, 2015

Ketler v. PFPA, LLC (Delaware)
(unpublished trial court disposition)

Plaintiff purchased a gym membership from Planet Fitness and agreed to the terms of the facility’s membership agreement.  Plaintiff thereafter sustained personal injuries at the defendant’s workout facility when a cable broke on a seated rowing machine that he was using.  He and his wife filed a lawsuit against Planet Fitness, alleging negligence, and Planet Fitness filed an answer asserting primary assumption of the risk as an affirmative defense based on the language of the membership agreement.  The defendant then filed a motion for a judgment on the pleadings.

The plaintiff did not dispute that he signed the membership agreement, but he argued that the agreement did not include a specific reference to the negligent wrongdoing alleged.  The court disagreed, noting that the agreement clearly provided that plaintiff could not hold the defendant liable for any injury even if the defendant’s own negligence caused the injury.  The court found the membership agreement to be “an unambiguous and express release.”

Plaintiff contended that he was entitled to factual discovery before the court cold resolve the issue.  However, the court stated that the language of the membership agreement was controlling and no further discovery was needed.  The court explained that “Delaware’s decisional law on contract interpretation permit the Court to give full force and effect to the Release.”

Mirror Mirror Off the Wall – Fitness Member’s Injury Claim Relating to Falling Mirror Survives Release Motion (IL)

June 16, 2015

Hawkins v. Capital Fitness, Inc. (Illinois)

Plaintiff was a member of the defendant’s fitness club.  He was injured when a mirror fell from the wall and struck him in the head.  As a result, he filed a personal injury action, alleging the negligent failure to secure the mirror or warn patrons about the mirror.  The defendant filed a motion for summary judgment based on the “Disclaimers, Waiver, Release, and Indemnification” language found in the defendant’s membership agreement.  The trial court granted the motion, entering judgment for the defendant, and the plaintiff appealed. (more…)

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

April 28, 2015

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. (more…)

Legal Workout – Fitness Club Defends Negligence, Gross Negligence, Products Claims (CA)

March 23, 2015

24 hour fitness logoGrebing v. 24 Hour Fitness USA, Inc. (California)

In 2012, a member of a 24 Hour Fitness facility in La Mirada, California was injured while using a “low row” machine during a workout.  The clip holding the weight on the machine failed, causing the machine’s handlebar to strike the plaintiff in the forehead and allegedly causinghead, back, and neck injuries.  Plaintiff filed a complaint against the fitness facility for (1) negligence, (2) negligent products liability, (3) strict products liability, and (4) breach of implied warranty of merchantability.
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Paying the Price (Twice)

November 7, 2007

Heilig v. Touchstone Climbing, Inc. (California–UNPUBLISHED)
(Rock Climber Falls During a Competition; Release Precludes Negligence Claims; No Allegations or Evidence of “Gross Negligence”; Defendant Entitled to Attorneys Fees Pursuant to Release)

The plaintiff was an experienced and professional rock climber. He was injured in a fall during a rock climbing competition at one of the defendant’s indoor “climbing gyms.” Plaintiff had climbed indoor climbing walls at some of defendant’s six facilities in the Bay Area during the several years preceding the incident. He had been intermittently a member of defendant’s facility, which entitled him to use any of its climbing facilities. Defendant had periodically required plaintiff to sign releases of liability in order to use their facilities.

Plaintiff had taken a few years off from competitive climbing, but had then joined the defendant at its Concord facility on February 4, 2004. At that time, he signed the most recent “Release of Liability and Assumption of Risk Agreement” (“Release”). The Release, in standard form language, specifies that the climber recognizes and assumes the significant risks of climbing, “both known and unknown, whether caused or alleged to be caused by the negligent acts or omission” of the defendant. Pursuant to the Release, plaintiff also agreed to release, discharge, and indemnify or hold harmless defendant from “any and all claims, demands, or causes of action, which are in any way connected with my participation in this activity” or use of defendant’s equipment or facilities, including any “claims which allege negligent acts or omissions” of defendant.

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Sticking To It

October 24, 2007

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.

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She Got Hosed

July 3, 2007

Jones v. Loews Santa Monica Hotel, Inc. (California-NOT PUBLISHED)
(Health Club Member Tripped and Fell on Hose Trying to Access Club; Waiver and Release Barred Premises Liability)

The plaintiff joined a health club located in the defendant hotel. In order to join, she was required to (and did) sign a membership agreement that included waiver and release language exculpating the hotel from liability. Thereafter, plaintiff was walking on a sidewalk on the hotel premises to gain access to the health club when she tripped and fell on a hose, suffering personal injury. She filed a lawsuit against the hotel for general negligence and premises liability. The defendant filed a motion for summary judgment based upon the waiver and release language found in the membership agreement. The trial court granted the motion, and the plaintiff appealed.

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