Grebing v. 24 Hour Fitness USA, Inc.
| Decision Date | 29 January 2015 |
| Docket Number | B255866 |
| Citation | 184 Cal.Rptr.3d 155,234 Cal.App.4th 631 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Timothy GREBING, Plaintiff and Appellant, v. 24 HOUR FITNESS USA, INC., Defendant and Respondent. |
Wingert Grebing Brubaker & Juskie, San Diego, Charles R. Grebing, Andrew A. Servais, and Dwayne H. Stein for Plaintiff and Appellant.
Prindle, Amaro, Goetz, Hillyard, Barnes & Reinholtz, Long Beach, Jack C. Nick and Robert R. Willis for Defendant and Respondent.
Plaintiff Timothy Grebing was injured while exercising at defendant 24 Hour Fitness USA, Inc.'s (24 Hour) facility in La Mirada, California. He appeals from the judgment entered after the trial court granted 24 Hour's motion for summary judgment. The court ruled that Grebing had signed a valid release of liability and 24 Hour did not act with gross negligence. In his appeal, Grebing contends: (1) the release cannot relieve 24 Hour of liability for gross negligence, and there is a triable issue of fact whether 24 Hour was grossly negligent; (2) the release does not relieve 24 Hour of liability for its own negligence; and (3) 24 Hour was in the chain of distribution and therefore can be liable based on products liability. We affirm.
24 Hour operates health clubs under the name 24 Hour Fitness. Grebing became a member of 24 Hour Fitness on November 10, 2011. On this date, he signed a membership agreement which included a provision with the heading “Release of Liability—Assumption of Risk—Buyer's Right to Cancel—Communications—Agreement Term. ” The provision stated:
(Original boldface & underscoring.)
Grebing modified his membership agreement on December 15, 2011, by signing an “Upgrade Agreement” that contained the same provision quoted above.
Grebing was injured on May 9, 2012, while using exercise equipment known as a “low row machine” at 24 Hour's fitness facility in La Mirada. The low row machine is operated by sitting with one's legs 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 running through pulleys and attached to weights. Grebing performed three sets of exercises on this machine and increased the weight to 220 or 240 pounds for his fourth set. As he was pulling the handlebar during his third or fourth repetition on his fourth set, the clip failed causing the handlebar to break free from the cable and strike him in the forehead. Grebing suffered injuries to his head
, back, and neck.
Grebing admitted he had read the following warning label on the machine before he was injured: “PRIOR TO USE, BE SURE THAT THE ‘SAFETY CLIP’ IS IN PROPER WORKING CONDITION AND SHOWS NO SIGNS OF WEAR!” Although the clip that broke on Grebing's low row machine was typically used on crossover machines, there is no specific clip that must be used on the low row machine. In fact, the clips used on both machines take the same amount of weight. Before the accident, Grebing used the low row machine frequently, or twice every eight days.
24 Hour's facilities technician, Ricardo Alcaraz, ordinarily inspected the exercise equipment daily, including the clips on the machines. Alcaraz was absent from the health club on business on the day of Grebing's accident and did not inspect the equipment that day. However, Alcaraz testified that a service manager would have conducted the inspection on the day of the accident.1
In the last five or six years, another 24 Hour health club member, Rene Lozoya, reported various problems with the facility's exercise equipment once or twice per year. For example, Lozoya sometimes reported that the adjustments on bicycles were off or that seats on machines were not repaired for a long time. Prior to Grebing's accident, Lozoya stated that the only problem with clips was that some machines were missing clips. Specifically, Lozoya testified that the problem was not that the clips on the machines were broken,
On the day of Grebing's accident, Lozoya was exercising near Grebing but using a different type of machine, a pull-down machine. Lozoya noticed that the clip on the pull-down machine used by Lozoya was crooked. Accordingly, Lozoya reported the problem to a health club manager, Walleed Elsherif. However, Lozoya never advised Elsherif that the clip on Grebing's low row machine was the wrong clip, broken, or not working. Within 15 minutes or so after Lozoya's complaint, Grebing was injured while using the low row machine.
In October 2012, Grebing filed a complaint against 24 Hour asserting causes of action for (1) negligence, (2) negligent products liability, (3) strict products liability, and (4) breach of the implied warranty of merchantability. He alleges that 24 Hour negligently maintained and controlled the low row machine and the gym, creating a dangerous condition that resulted in his injury.2 Grebing also alleges that 24 Hour was in the business of designing, manufacturing, distributing, inspecting, and offering for sale exercise equipment, including the low row machine, and that 24 Hour failed to use reasonable care in these regards.
24 Hour moved for summary judgment or summary adjudication on each cause of action. It argued that the written release was a complete defense to the first, second, and fourth causes of action. 24 Hour also argued that since it was a service provider and not in the chain of distribution, it could not be liable for strict products liability as set forth in the third cause of action. Grebing argued in opposition to the motion that 24 Hour was grossly negligent and that, as a matter of law, the written release could not relieve 24 Hour of liability for gross negligence. He also argued that, as a matter of contract interpretation, the release did not relieve 24 Hour of liability for its own negligence. Further, Grebing argued that 24 Hour was in the chain of distribution and did not merely provide fitness services.
On February 28, 2014, the trial court granted 24 Hour's motion.3 The court concluded that the written release clearly stated that 24 Hour would not be liable for its own negligence, and there was no evidence of gross negligence. It explained that based “on the very short notice that [24 Hour] had about the problem with the clip coupled with the evidence of the care that [it] took to maintain” the facility, Grebing “failed to submit evidence that demonstrates an extreme departure from the ordinary standard of care or a want of even scant care.” In addition, the court noted that Lozoya only recalled reporting one clip issue to management prior to the accident, and that with regard to that clip issue, Lozoya only reported that a clip was missing. It entered judgment in favor of 24 Hour on April 1, 2014. Grebing timely appealed the judgment.
Grebing contends: (1) there is a triable issue of fact whether 24 Hour was grossly negligent, precluding summary adjudication of any cause of action based on the release; (2) the release does not relieve 24 Hour of liability for its own negligence; and (3) 24 Hour was in the chain of distribution and therefore can be liable based on products liability.
A party is entitled to summary judgment only if there is no triable issue of material fact and the party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A defendant moving for summary judgment must show that one or more elements of the plaintiff's cause of action cannot be established or that there is a complete defense. (Id. subd. (p)(2).) If the defendant meets this burden, the burden shifts to the plaintiff to present evidence creating a triable issue of material fact. (Ibid. ) A triable issue of fact exists if the evidence would allow a reasonable trier of fact to find the...
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