In Grebing v. 24 Hour Fitness (pub. ordered 2/19/15) B255866, plaintiff was injured on a low row machine when the clip connecting a handlebar to a cable/pulley assembly attached to weights failed. Plaintiff had read a warning on the machine advising users to be sure the safety clip was in working order prior to use. Additionally his membership agreement with defendant health club stated that he assumed the risk of using defendant’s health club services even if defendant was negligent.
Defendant filed a motion for summary judgment in Los Angeles Superior Court. Plaintiff submitted a declaration from another health club member, Lozoya, that 15 minutes before plaintiff was injured, he noticed that the clip on another machine, the pull-down, was crooked and reported this to the health club manager. Prior to that date, he had complained of problems with various machines concerning missing clips, presuming them to have been stolen. Defendant presented proof a routine daily inspection was performed that day, it did not manufacture the equipment, and that the clip in use that day on the machine in question was typically used on a different machine, but there was no specific clip that must be used on this low row machine.
The trial court granted defendant’s motion for summary judgment on all of the causes of action, including negligence, products liability and implied warranty. Plaintiff appealed claiming there was a triable issue of gross negligence, the release was not effective, and defendant was within the chain of distribution concerning products liability. The Court of Appeal, Second Appellate District, Division Three, disagreed and affirmed.
The appellate court rejected plaintiff’s argument that the release did not cover failure to properly maintain or assemble the machine; this was a risk reasonably related to the use of the exercise facility and encompassed in the release. It is not necessary that the plaintiff have specific knowledge of the particular risk that caused this injury.
Because a release of liability for future gross negligence is generally unenforceable as a matter of public policy, the release did not preclude this form of liability. The club manager here testified a more appropriate clip for the low row machine would have been a heavier duty one. The club technician testified that it was not the defendant’s practice to use this less heavy duty clip on this machine, but it was capable of supporting the same amount of weight as the heavy duty one. Considering this evidence vis-à-vis plaintiff’s evidence, the appellate court agreed with the trial court that there was no triable issue of material fact concerning gross negligence. Given the undisputed safety measures taken by defendant, the appellate court was unwilling to say that a failure to act upon a related complaint within 15 minutes raised a triable issue of gross negligence.
Finally, the Court of Appeal saw no triable issue as to products liability/warranty because it was clear that the dominant purpose of the club membership agreement was to provide fitness services rather than to supply a product.
From an appellate practice perspective, one might ask why the appellate court chose to publish this opinion that it had previously issued as an unpublished opinion. One thought I have is that this opinion is of general public interest in light of the multitude of people who join health clubs to try to stay (or get) fit. Especially because most clubs have exculpatory contract clauses, club members and guests need to be aware of the importance of personally inspecting the equipment used.