LAW OFFICES
OF
ANDREA LYNN RICE
A Professional Corporation
12100 Wilshire Boulevard
Suite 780
Los Angeles, California 90025
Telephone (310) 207-3717
Facsimile (310) 207-6785
LIABILITY UPDATE
January 18, 2008
In Zipusch v. LA Workout, Inc. 2007 Daily Journal D.A.R 15353, the Second Appellate District of the California Court of Appeal held that failure to inspect or maintain equipment is not an inherent risk of exercising at a health club.
Yoko Zipusch (Zipusch) signed a “Membership Agreement” with LA Workout, the predecessor-in-interest of defendant Northridge GG, Inc. (Northridge). The double-sided membership agreement contained a readily identifiable assumption of risk provision located at the bottom of the front page which states: “The use of the facility at LA Workout naturally involves the risk of injury to yourself or your guest, whether you or someone else cause [sic] it. As such you understand and voluntarily accept this risk and agree that LA Workout will not be liable for injury, including without limitation, personal, bodily or mental injury, economic loss or damage to you, your spouses [sic], guests, unborn child, or relatives resulting from the negligence or other acts of anyone else using LA Workout. If there is any claim by anyone based on injury loss or damage described here, which involves you or your guest, you agree to (1) defend LA Workout against such claims and pay LA Workout for all expenses relating to the claim and (2) indemnify LA Workout for all liabilities to you, your spouse, guests, relatives, or anyone else, resulting from such claims. The member or guest will defend and indemnify LA Workout for any negligence EXCEPT the sole negligence of the club. . . .”
Zipusch allegedly sustained injuries when her foot became stuck to a sticky substance on a treadmill at the health club, causing her to lose her balance. Zipusch filed a complaint against LA Workout 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, causing her to lose her balance when her foot became stuck to it. Northridge answered the complaint and later moved for summary judgment. The trial court granted summary judgment in favor of Northridge based on the assumption of risk provision of the membership agreement, finding that while the release did not bar all claims arising during use of the health club, it did bar all claims involving third party conduct. The trial court found Zipusch had presented no evidence establishing the sticky substance materialized on the treadmill by non-third party conduct. Zipusch appealed, and the Court of Appeal reversed.
The appellate court found that the assumption of risk provision of LA Workout’s membership agreement contemplated two types of potential injuries: injuries to a member caused by others, and injuries to others caused by a member. “The provision begins with an introductory sentence warning about the inherent risks of using an exercise facility. Read as a whole, the most reasonable interpretation of the risk provision is the parties’ intention to exculpate the health club from injuries, whether self-inflicted or caused by other members, sustained from the inherent risks of exercising at a health club. For example, the health club would be exculpated if a member, either negligently or non-negligently, dropped a heavy weight on himself or another member. However, the risk section does not contemplating exculpating the health club from its own negligence. Thus, as discussed more fully below, the trial court improperly granted summary judgment.”
The court pointed out that in Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351, a health club member sustained injuries while adjusting an overhead television in preparation for using an elliptical exercise machine. Though repositioning a television is arguably unrelated to the inherent risks associated with exercising, the court affirmed summary judgment because the plaintiff had signed an unambiguous release exculpating the health club from all injuries sustained while on the premises irrespective of whether the injury related to exercise. Similarly, in Capri v. L.A. Fitness International, LLC (2006) 136 Cal.App.4th 1078, a health club member who signed a broad release and waiver of liability and later slipped and fell on algae growing on a swimming pool deck, was barred from bringing a general negligence claim against the health club, despite the court’s determination the risk of algae growing on a pool deck was not an inherent risk of swimming. “Provided a release is clear, explicit and comprehensible, guaranteeing both parties contemplated the redistribution of risk, a release can relieve a health club of due care it otherwise would be obligated to provide.”
The court observed, however, if a release is ambiguous, and it is not clear the parties contemplated redistributing the risk causing the plaintiff’s injury, then the contractual ambiguity should be construed against the drafter, voiding the purported release. Such was the case here. “The assumption of risk provision does not release LA Workout or Northridge from its own negligence. After an introductory sentence, which alludes to the inherent risks of exercising at a health club, the assumption of risk provision contemplates two types of injuries: injuries to the member caused by others, and injuries to others caused by the member. Zipusch agreed to exculpate LA Workout from the former type of injury and indemnify for the latter type. The distinction between the exculpatory and the indemnification clauses is important. . . . [T]he exculpatory clause precludes lawsuits against LA Workout from unpreventable injuries caused by third party conduct in the natural course of exercising. The indemnification clause obligates a third party who causes injury to reimburse LA Workout for its share of any resulting judgment. In other words, the exculpatory clause concerns the scope of lawsuits which can be brought against LA Workout while the indemnification clause concerns responsibility for paying damages arising from those lawsuits.”
The assumption of risk provision does not clearly, explicitly and comprehensibly exculpate LA Workout or Northridge from its own negligence. Accordingly, it was improper for the trial court to rule the assumption of risk provision barred Zipusch’s negligence and premises liability action.
The court acknowledged that, even absent a contractual release from liability, Northridge nonetheless could prevail on summary judgment if Zipusch’s alleged injury was an inherent risk of exercising at a health club. “As our Supreme Court has made clear [in Knight v. Jewett (1992) 3 Cal.4th 296], ‘resolution of the question of the defendant’s liability in such cases turns on whether the defendant had a legal duty to avoid such conduct or to protect the plaintiff against a particular risk of harm.’ Rather than examining the ‘plaintiff’s subjective knowledge or appreciation of the potential risk[,]’ the inquiry depends upon whether the defendant breached its general duty ‘to use due care not to increase the risks to a participant over and above those inherent in the sport.’ . . .”
In determining whether the accident was an inherent risk of exercising at a health club, the court turned “to the record and common sense.” “Generally, defective or unnecessarily dangerous equipment is not considered an inherent risk of a sport. This is entirely sensible. . . . [¶] Here [however], Zipusch alleges the health club negligently inspected and maintained its exercise equipment, allowing a risk to remain for an unreasonable amount of time. . . . [W]e find nothing to support the contention the negligent inspection and maintenance of exercise equipment is an inherent risk of exercising at a health club. Unlike those who run outside on cracked sidewalks speckled with gum, Zipusch and other health club members pay dues in exchange for access to a safe and well-maintained exercise environment. Instead of chilling exercise at a health club, reasonably inspecting and maintaining exercise equipment should have the opposite effect. Further, Northridge acknowledges it already monitors and cleans the exercise facility. Accordingly, we find the negligent inspection and maintenance of exercise equipment is not an inherent risk of exercising at a health club.”
----Andrea Lynn Rice
OF
ANDREA LYNN RICE
A Professional Corporation
12100 Wilshire Boulevard
Suite 780
Los Angeles, California 90025
Telephone (310) 207-3717
Facsimile (310) 207-6785
LIABILITY UPDATE
January 18, 2008
In Zipusch v. LA Workout, Inc. 2007 Daily Journal D.A.R 15353, the Second Appellate District of the California Court of Appeal held that failure to inspect or maintain equipment is not an inherent risk of exercising at a health club.
Yoko Zipusch (Zipusch) signed a “Membership Agreement” with LA Workout, the predecessor-in-interest of defendant Northridge GG, Inc. (Northridge). The double-sided membership agreement contained a readily identifiable assumption of risk provision located at the bottom of the front page which states: “The use of the facility at LA Workout naturally involves the risk of injury to yourself or your guest, whether you or someone else cause [sic] it. As such you understand and voluntarily accept this risk and agree that LA Workout will not be liable for injury, including without limitation, personal, bodily or mental injury, economic loss or damage to you, your spouses [sic], guests, unborn child, or relatives resulting from the negligence or other acts of anyone else using LA Workout. If there is any claim by anyone based on injury loss or damage described here, which involves you or your guest, you agree to (1) defend LA Workout against such claims and pay LA Workout for all expenses relating to the claim and (2) indemnify LA Workout for all liabilities to you, your spouse, guests, relatives, or anyone else, resulting from such claims. The member or guest will defend and indemnify LA Workout for any negligence EXCEPT the sole negligence of the club. . . .”
Zipusch allegedly sustained injuries when her foot became stuck to a sticky substance on a treadmill at the health club, causing her to lose her balance. Zipusch filed a complaint against LA Workout 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, causing her to lose her balance when her foot became stuck to it. Northridge answered the complaint and later moved for summary judgment. The trial court granted summary judgment in favor of Northridge based on the assumption of risk provision of the membership agreement, finding that while the release did not bar all claims arising during use of the health club, it did bar all claims involving third party conduct. The trial court found Zipusch had presented no evidence establishing the sticky substance materialized on the treadmill by non-third party conduct. Zipusch appealed, and the Court of Appeal reversed.
The appellate court found that the assumption of risk provision of LA Workout’s membership agreement contemplated two types of potential injuries: injuries to a member caused by others, and injuries to others caused by a member. “The provision begins with an introductory sentence warning about the inherent risks of using an exercise facility. Read as a whole, the most reasonable interpretation of the risk provision is the parties’ intention to exculpate the health club from injuries, whether self-inflicted or caused by other members, sustained from the inherent risks of exercising at a health club. For example, the health club would be exculpated if a member, either negligently or non-negligently, dropped a heavy weight on himself or another member. However, the risk section does not contemplating exculpating the health club from its own negligence. Thus, as discussed more fully below, the trial court improperly granted summary judgment.”
The court pointed out that in Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351, a health club member sustained injuries while adjusting an overhead television in preparation for using an elliptical exercise machine. Though repositioning a television is arguably unrelated to the inherent risks associated with exercising, the court affirmed summary judgment because the plaintiff had signed an unambiguous release exculpating the health club from all injuries sustained while on the premises irrespective of whether the injury related to exercise. Similarly, in Capri v. L.A. Fitness International, LLC (2006) 136 Cal.App.4th 1078, a health club member who signed a broad release and waiver of liability and later slipped and fell on algae growing on a swimming pool deck, was barred from bringing a general negligence claim against the health club, despite the court’s determination the risk of algae growing on a pool deck was not an inherent risk of swimming. “Provided a release is clear, explicit and comprehensible, guaranteeing both parties contemplated the redistribution of risk, a release can relieve a health club of due care it otherwise would be obligated to provide.”
The court observed, however, if a release is ambiguous, and it is not clear the parties contemplated redistributing the risk causing the plaintiff’s injury, then the contractual ambiguity should be construed against the drafter, voiding the purported release. Such was the case here. “The assumption of risk provision does not release LA Workout or Northridge from its own negligence. After an introductory sentence, which alludes to the inherent risks of exercising at a health club, the assumption of risk provision contemplates two types of injuries: injuries to the member caused by others, and injuries to others caused by the member. Zipusch agreed to exculpate LA Workout from the former type of injury and indemnify for the latter type. The distinction between the exculpatory and the indemnification clauses is important. . . . [T]he exculpatory clause precludes lawsuits against LA Workout from unpreventable injuries caused by third party conduct in the natural course of exercising. The indemnification clause obligates a third party who causes injury to reimburse LA Workout for its share of any resulting judgment. In other words, the exculpatory clause concerns the scope of lawsuits which can be brought against LA Workout while the indemnification clause concerns responsibility for paying damages arising from those lawsuits.”
The assumption of risk provision does not clearly, explicitly and comprehensibly exculpate LA Workout or Northridge from its own negligence. Accordingly, it was improper for the trial court to rule the assumption of risk provision barred Zipusch’s negligence and premises liability action.
The court acknowledged that, even absent a contractual release from liability, Northridge nonetheless could prevail on summary judgment if Zipusch’s alleged injury was an inherent risk of exercising at a health club. “As our Supreme Court has made clear [in Knight v. Jewett (1992) 3 Cal.4th 296], ‘resolution of the question of the defendant’s liability in such cases turns on whether the defendant had a legal duty to avoid such conduct or to protect the plaintiff against a particular risk of harm.’ Rather than examining the ‘plaintiff’s subjective knowledge or appreciation of the potential risk[,]’ the inquiry depends upon whether the defendant breached its general duty ‘to use due care not to increase the risks to a participant over and above those inherent in the sport.’ . . .”
In determining whether the accident was an inherent risk of exercising at a health club, the court turned “to the record and common sense.” “Generally, defective or unnecessarily dangerous equipment is not considered an inherent risk of a sport. This is entirely sensible. . . . [¶] Here [however], Zipusch alleges the health club negligently inspected and maintained its exercise equipment, allowing a risk to remain for an unreasonable amount of time. . . . [W]e find nothing to support the contention the negligent inspection and maintenance of exercise equipment is an inherent risk of exercising at a health club. Unlike those who run outside on cracked sidewalks speckled with gum, Zipusch and other health club members pay dues in exchange for access to a safe and well-maintained exercise environment. Instead of chilling exercise at a health club, reasonably inspecting and maintaining exercise equipment should have the opposite effect. Further, Northridge acknowledges it already monitors and cleans the exercise facility. Accordingly, we find the negligent inspection and maintenance of exercise equipment is not an inherent risk of exercising at a health club.”
----Andrea Lynn Rice
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