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Gym Injuries –What You Need to Know About Your Legal Rights.

//Gym Injuries –What You Need to Know About Your Legal Rights.

Gym Injuries –What You Need to Know About Your Legal Rights.

Gym InjuriesGym Injuries –What You Need to Know About Your Legal Rights. Summer is around the corner and you want to look your best at the beach? Just want to get healthier, fitter, toner, or lose some baby weight? Got a dad bod? Been slacking? Thinking about joining the gym or did you already do so? Whatever reasons you may have for joining a gym, did you ever think about what would happen if you got injured there? What happens if you slip and fall in the bathroom? What about running on the treadmill and you hurt yourself? What if an equipment failed and landed on your foot? What about lifting weights and you get injured? Can you pursue compensation for your injuries from the gym? I’m going to try to explain what your rights are if you are injured at the gym – most of it, is not good.

Well let’s start with what every gym makes you do when you sign up. They make you sign a contract normally, sometimes it’s a commitment for six or twelve months. Even without a commitment, they make you sign a very important, and often unread legal document. It’s the waiver of liability. This is sometimes called a release agreement or release of liability. Whatever it’s called, the concept is the same. You are releasing the gym from some future harm that it or its employees will cause you in the future.

The waiver of liability or release agreement usually says that you waive any and all rights to sue the gym if you are injured while at the gym. Here’s an example from a recently published case against L.A. Fitness:

“IMPORTANT: RELEASE AND WAIVER OF LIABILITY AND INDEMNITY. You hereby acknowledge and agree that use by Member…of L.A. Fitness’ facilities, services, equipment or premises, involves risks of injury to persons and property, including those described below, and Member assumes full responsibility for such risks. In consideration of Member…, being permitted to enter any facility of L.A. Fitness (a “Club”) for any purpose … Member agrees to the following: Member hereby releases and holds L.A. Fitness … harmless from all liability to Member … for any loss or damage, and forever gives up any claim or demands therefore, on account of injury to Member’s person or property, … whether caused by the active or passive negligence of L.A. Fitness or otherwise, to the fullest extent permitted by law, while Member … is in, upon, or about L.A. Fitness premises or using any L.A. Fitness facilities, services or equipment….Anderson v. Fitness International, LLC (2016) 4 Cal.App.5th 867, 871.

Sounds like it could cover anything and everything, right? Wrong. See that last part where it says “to the fullest extent permitted by law.” Well that’s where the courts have said, no, not so fast. You can make a contract that releases you (gym) from future ordinary negligence so long as such contracts do not violate public policy. It violates public policy if your (gym’s) actions or inactions amounts to gross negligence.

ORDINARY NEGLIGENCE VERSUS GROSS NEGLIGENCE

These types of waivers of liability only relieve the gym from liability if what the gym did or didn’t do amounts to ordinary negligence. The courts have long held that it does not shield a gym from liability if the gym’s actions or inactions amounted to gross negligence. That is against public policy and it will not be enforced. Ok, so what the heck is “ordinary negligence versus gross negligence.”  What the heck is negligence? Well, “negligence” is the same as “ordinary negligence.” For this article, I will use ordinary negligence because I have to distinguish between ordinary and gross negligence.

The difference between ordinary negligence and gross negligence is a matter of degree. Basically, think of this concept on a horizontal spectrum. All the way on the left of the spectrum is somebody that never acts or does anything unreasonable. That is the reasonable person. Towards the middle of the spectrum, is the unreasonable person. He or she would do things that no reasonable person would have done under similar circumstances. Ordinary negligence consists of the failure to exercise the degree of care in a given situation that a reasonable person under similar circumstances would employ to protect others from harm. Anderson v. Fitness International, LLC (2016) 4 Cal.App.5th 867, 881.

Farther along the spectrum, towards the far right, is a person, even knowing that their actions or inactions will have a substantial likelihood of causing harm to somebody, that person does it anyways and somebody gets hurt. There is no intention of actually harming anybody, but for their recklessness, for lack of a better word, they injure someone. This is gross negligence.  Gross negligence is conduct that substantially or unreasonably increased the inherent risk of an activity or actively concealed a known risk. It is also actions or inactions that shows a want of even scant care, or that evinces an extreme departure from normal standard of care. The courts have used all of the above definitions in someway or another to try to define gross negligence.

Ok, that’s a lot of legalese and I hope you are still with me. I’m going to try to explain the difference by giving you case examples. You will see how hard it is to pursue a claim against a gym because of the signed waiver of liability and assumption of risk defense. A plaintiff’s case against a gym is usually DOA – Dead on Arrival. I say this because if there was no waiver of liability signed, then a plaintiff need only show ordinary negligence to possibly win. That is a much lower bar. Some of the cases below could have been won, but for the fact that the waiver was signed.

In Anderson, the plaintiff, a 60-year-old man slipped and fell in the shower breaking his upper arm. He sued L.A. Fitness, but the case was ultimately dismissed because there was no evidence that L.A. Fitness’s actions or inactions amounted to gross negligence. Anderson signed a waiver of liability so he could not pursue a claim based on ordinary negligence. The court held that allegations of the shower room being routinely covered in oily and soapy residue is a condition that one would expect in a health club shower facility. It is not an extreme departure from what one would expect at a health club. Also, Anderson fell a few times in this same shower before this incident, so the inherent risk was known to him. Anderson’s prior notification to L.A. Fitness’ staff about his and other members’ falls and L.A. Fitness inactions to guard or warn against it, at most, could have amounted to ordinary negligence, but not gross negligence.

In Sanchez, the court of appeals held that Sanchez’ claims against Bally’s Total Fitness was barred by the release agreement she signed five years earlier. Sanchez v. Bally’s Total Fitness Corp. (1998) 68 Cal.App. 4th 62. Sanchez was injured while participating in a slide aerobics class offered by the gym. Slide aerobics is when a person wears a special sock and slides from side to side on a six-foot mat with rubber bumpers at each end, creating an aerobic exercise. Sanchez participated in this, slipped and fell and injured her wrist. The court held that Sanchez, a senior real estate officer, who routinely deals with contracts, admitted to reading the contracting and signing it. She had the capacity to understand what she was signing. Furthermore, Sanchez, knew that there would be a risk of injuries that would occur in the course and scope of using the facilities, including participating in slide aerobics. Sanchez’ case was dismissed.

In Rostai, Rostai suffered a heart-attack after participating in his first workout program under the guidance of a personal trainer, named Shoultz. Shoultz was an independent contractor that had an arrangement with Gold’s Gym to train his clients.  Rostai sued Shoultz and Gold’s Gym claiming that they should have known of his physical condition. They failed to tailor a workout program to his condition and they failed to monitor his condition during the workout. As a result of their failures, Rostai suffered a heart-attack.

The court dismissed the lawsuit against Shoultz based on theory “Primary Assumption of Risk. The doctrine of primary assumption of risk applies where conditions or conduct might be viewed as dangerous, often are an integral part of the sport or activity itself. Rostai v. Neste Enterprise (2006) 138 Cal.App.4th 326, 332. Some cases refer to this as a defense, and other refer to it as an express assumption of risk that negates the defendant’s duty of care, an element of the plaintiff’s case. Jimenez v. 24 Hour Fitness USA, Inc. (2015) 237 Cal. App.4th 546, 554. I will not go into the scholarly arguments for either side. It is sufficient to say that this is a defense and if proven, a plaintiff’s case will get dismissed. To get around this defense, the defendant’s conduct must amount to gross negligence.

The court found the following allegations by Rostai to be insufficient to amount to gross negligence. The evidence shows that at the time of the workout, Rostai was 46 years old, overweight, and did not exercise. Shoultz put Rostai on the treadmill, the incline bench, and when Rostai asked for a break several times, Shoultz replied “later”, “don’t be a p**sy”, and pointed to a nearby woman and said “Come on, don’t you want get some of that ass?” At one point, Rostai started to feel chest pain, told Shoultz that he was out of breath, and said to call 911. The court held that at most, all this shows is Shoultz did not accurately assess Rostai’s level of physical fitness. Shoultz could have interpreted Rostai’s tiredness, shortness of breath, and profuse sweating as the usual signs physical exertion. There is no evidence that Shoultz acted with intent to injure the plaintiff or acted recklessly and increased the risk inherent in the activity itself.  Basically, there is no evidence of gross negligence to defeat the primary assumption of risk defense.

As for Gold’s Gym, the court held that it had no duty (just like Shoultz) to monitor the health of Rostai. Rostai knew of the inherent dangers of the exercise program and assumed the risk. Because Shoultz was not liable, Gold’s Gym was not as well.

In Lund, the plaintiff, who had previously had neck surgery to fuse two vertebrae in her neck was told by her doctors not to lift weights over her head. She joined Bally’s and signed a written waiver. She purchased training sessions with a personal trainer that worked for Bally’s. She told the personal trainer that she could not lift weights over her head. The personal trainer said he could show her how to use the weight machine without injuring herself. With the guidance of the personal trainer, Lund proceeded to use an inclined bench machine with a 10-pound weight. She lifted it 15 times and felt pressure on her neck. She lifted it three more times and re-injured her cervical spine. The injury caused her to undergo another neck surgery. She sued Bally’s. Her case was dismissed because she had signed a waiver and the injuries she suffered were due to using equipment at the gym. She was unable to show anything that amounted to gross negligence to get pass the signed waiver. The fact that she got assurances from the personal trainer that he would teach her to lift weights without getting injured was irrelevant. In hindsight, the court actually called it foolish to rely on the personal trainer’s assurances.  Lund v. Bally’s Aerobic Plus, Inc. (2000) 78 Cal.App.4th 733.  There was nothing here to show that the gym or the personal trainer acted with gross negligence.

In Honeycutt, the court held that even a gym member who was injured in a kickboxing class could not sue the health club because of the waiver of liability she signed. Honeycutt was a member of Meridian Sports Club, LLC. Prior to the incident, Honeycutt had never participated in a kickboxing class. The kickboxing class was taught by Alexander, a certified personal trainer and a martial arts instructor. While practicing a roundhouse kick, Alexander noticed that Honeycutt was performing it incorrectly. Alexander wanted to show her the correct way. Alexander held her right leg while instructing Honeycutt to rotate, open her hips, and pivot her left planted foot. This would allow her to do the roundhouse kick. Honeycutt did so and snapped her left knee. She suffered a torn ACL.

Honeycutt sued Meridian and Alexander, claiming that Alexander instructed her improperly and Alexander was not a certified trainer in kickboxing. Honeycutt produced a certified kickboxing trainer who stated that the kickboxing maneuver should only be instructed verbally as to prevent injuries. This certified trainer also said that because Alexander held onto her right leg, Alexander increased the risk inherent in the sport of kickboxing. Basically, Honeycutt tried arguing that this amounted to gross negligence. The court disagreed. The court held that the knee injury Honeycutt sustained is inherent in the activity of kickboxing. Knee injuries are a usual part of the sport. Honeycutt knew of this and Honeycutt assumed the risk by signing the waiver of liability. It also stated that even if Alexander used a different method of training Honeycutt (holding her right leg), this did not amount to gross negligence. It said that a mere difference of opinion as to how student should be instructed does not constitute evidence of gross negligence. Honeycutt v. Meridian Sports Club, LLC (2014) 231 Cal.App.4th 251. Even with an expert simply declaring that this was gross negligence was insufficient without more.

In Grebing, the plaintiff was injured while using an exercise equipment known as a low row machine. The low row machine is operated by sitting with one’s leg extended on pads and lifting weights by pulling a metal handlebar with both hands. A clip or snap hook connects the handlebar to a cable or belt attached to the weights. As Grebing was pulling 240lbs on his fourth set, during the fourth rep, the clip failed and the handlebar broke free hitting him in the forehead. Grebing sued, but Grebing had signed a waiver of liability and in order for the lawsuit to proceed, there would have to be evidence of gross negligence on the part of 24 Hour Fitness. Grebing argued that the wrong type of clip was used on this machine and that there were prior instances that other machines did not have clips, therefore, this amounted to gross negligence. The court disagreed and held that even if the wrong type of clip was used, the actual clip that was used for this machine supported the same amount of weights. Furthermore, even if someone reported 15 minutes earlier that other machines were missing clips, the failure to respond in that time period is not gross negligence. Also, the fact is, this particular machine was not missing the clip. Grebing v. 24 Hour Fitness USA, Inc. (2015) 234 Cal.App.4th 631.

All these cases have several things in common: (1) A waiver was signed; (2) The injured member participated in an activity knowing the risk of injury and assumed the risk; (3) a plaintiff has to show something more than ordinary negligence; and (4) the gym and its employees did nothing that extremely departed from the standard of conduct, or substantially increased the risk inherent in the activity, or recklessly acted or did not act in any way.

As you can see, it is very difficult to pursue a claim against a gym because of the waiver of liability and assumption of risk defense. The following cases however, shows how one can pursue a claim against a gym for injuries. It is under very limited circumstances.

In Leon, the Court held that the waiver of liability did not include injuries to a member from a collapsing sauna bench. Leon v. Family Fitness Center (1998) 61 Cal. App. 4th 1227.  When someone signs a waiver of liability, they are assuming certain risk inherent in the activity they are about to engage in. When you sign a contract for a gym membership, you should know that there are risks involved in exercising or using the equipment. For example, you may have a sprained ankle due to improper exercise, a broken toe because of a dropped weight, injuries due to equipment failures, or slipping in the locker-room shower. However, in this case, simply lying on a flat sauna bench has no relation to an individual’s participation in a health club’s fitness regime. The waiver of liability only covers activities where a person is engaging some exercise or use of a gym equipment for fitness exercise. Here, being injured while laying on a sauna is not an inherent part of that activity. No one can foresee that they will be injured while laying on a sauna. Nor can it be said that this is some form of exercise. The court said that the waiver of liability did not apply and the plaintiff was allowed to proceed with the lawsuit on the theory of ordinary negligence.

In Jimenez, the plaintiff fell backwards off a treadmill, and hit her head on an exposed steel foot of a leg exercise machine that 24 Hour placed approximately three feet ten inches behind the treadmill. Jimenez sustained a severe head injury, fracturing her right occipital bone and right temporal bone. Jimenez signed a waiver so she had to show something that amounted to gross negligence. The court found that 24 Hour Fitness’s failure to provide a minimum six-foot safety zone around a treadmill represented an extreme departure from the ordinary standard of conduct representing gross negligence. This minimum six-foot safety zone was in the owner’s manual and assembly guide. Furthermore, a personal trainer agreed that the minimum safety zone behind the treadmill should be six-foot. Because the actual space behind the treadmill was only three feet ten inches, this was an extreme departure from the ordinary standard of conduct. Also, the three ten inches of space increased the likelihood of injury if someone were to have fallen.  The court allowed the case to proceed further. Jimenez v. 24 Hour Fitness USA, Inc. (2015) 237 Cal. App.4th 546.

Most of the cases are against the plaintiff and their cases were dismissed because there was insufficient evidence of gross negligence. It is a very high bar for a plaintiff to succeed. A knowledgeable personal injury attorney should know what to look for in these types of cases to improve the chances of winning. If you are injured at the gym, call the The Law Firm of R. Sam immediately to discuss your case.

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By | 2018-05-24T20:00:05+00:00 March 15th, 2017|Categories: Recent Posts|0 Comments

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