Marshall v. Bally's Pacwest, Inc.

• Decision Date: 12 February 1999
• Docket Number: No. 22946-3-II,22946-3-II
• Court: Washington Court of Appeals
• Parties: Kim MARSHALL, a single woman, Appellant, v. BALLY'S PACWEST, INC., a Washington corporation, f/k/a Pacific West Health And Tennis Club, a/k/a, Bally Total Fitness; and Life Fitness, an Illinois corporation; Washington Athletic Repair, Inc., a Washington corporation, a/d/b/a Athletic Equipment Repair of Wa, Inc.; and Gary Severson and "Jane Doe" Severson, husband and wife, individually and as principals of Washington Athletic Repair, Inc., Respondents.

94 Wash. App. 372

972 P.2d 475

KIM MARSHALL, Appellant, v. BALLY'S PACWEST, INC., ET AL., Respondents.

No. 22946-3-II

COURT OF APPEALS OF WASHINGTON, DIVISION TWO

February 12, 1999, Filed

John R. Christensen of Messina Law Firm, for appellant.

Linda B. Clapham and Michael H. Runyan of Lane Powell Spears Lubersky, L.L.P.; Tyna L. Ek of Merrick, Hofstedt & Lindsey, P.S.; and Tamara S. Clower of Law Office of John F. Kennedy, for respondents.

Authored by David H. Armstrong. Concurring: J. Dean Morgan, Karen G. Seinfeld.

Armstrong, A.C.J. -- Kim Marshall sustained personal injuries while exercising on a treadmill at her health club, Bally's Pacwest. The treadmill was manufactured by Life Fitness and installed and maintained by Washington Athletic Repair. Marshall filed a negligence action against Bally's, Life Fitness, and Washington Athletic Repair. Marshall testified at her deposition that she had no recollection of how the accident occurred. The trial court granted summary judgment in favor of the defendants, principally because in the absence of any evidence as to how the accident occurred, Marshall could not show that the alleged fault of the defendants was a proximate cause of her injuries. On appeal, Marshall argues that the trial court erred in (1) concluding proximate cause could not be established; (2) granting summary judgment in light of newly discovered evidence; and (3) failing to recognize her claim of spoliation. We affirm.

FACTS

On May 16, 1993, Kim Marshall was injured on a treadmill at Bally's Pacwest in Tacoma. The treadmill was designed, manufactured and owned by Life Fitness, which leased it to Bally's. Life Fitness contracted with Washington Athletic Repair to install the treadmill and perform any necessary maintenance.

On April 6, 1993, Washington Athletic assembled the treadmill along with other identical treadmills at Bally's. After installing the machines, Washington Athletic ran the treadmills to ensure they were operating correctly. All treadmills operated properly.

Marshall alleges the following version of events in her amended complaint and answers to interrogatories. On May 16, 1993, she was exercising on the treadmill at Bally's when it stopped abruptly in the middle of her program. After the treadmill stopped, Marshall reprogrammed it and pushed the "start" button. But the treadmill allegedly restarted at 6.2 miles per hour rather than its usual 2.5 miles per hour. Marshall contends that because of the sudden and unexpected start, she was violently thrown from the treadmill, causing severe injuries when her head struck a Plexiglas wall behind the machine. But Marshall testified in her April 17, 1997, deposition that (1) she did not recall how abruptly the treadmill reached full speed; (2) she did not recall being "thrown" from the treadmill; and (3) she did not recall hitting the glass behind the wall. Rather, the last thing Marshall recalls is resetting the machine after it stopped.

In response to the trial court's questions regarding her lack of memory, Marshall's counsel stated, "She has a two-week lapse in memory because of this. She does not recall what happened." Further, Marshall concedes on appeal that she does not recall the specifics of how fast the machine restarted.

After Marshall's accident, the treadmill was used continuously and routinely cleaned and maintained. On November 18, 1993, Washington Athletic installed new central processing units (CPUs) in all Life Stride 9500 model treadmills, including the subject treadmill. No request was made to retain or preserve the CPU removed from the machine. The treadmill was operational until its frame broke on April 22, 1997, nearly four years after Marshall's accident. At the request of Life Fitness, Bally's returned the machine to Life Fitness in Chicago for replacement.

Marshall sued on March 20, 1996, alleging: (1) Bally's negligently failed to maintain safe premises; (2) Life Fitness negligently designed and manufactured the treadmill; and (3) Washington Athletic negligently failed to repair and maintain the treadmill. On September 8, 1997, over four years after the accident, Marshall's attorney requested an inspection of the Life Stride treadmill for the first time. On October 14, 1997, Bally's informed Marshall that the treadmill had been sent back to Chicago on June 4, 1997. On October 17, 1997, Marshall's expert was allowed to inspect an identical treadmill at Bally's. But he stated he could not fully form an opinion without inspecting the actual treadmill.

Bally's, Life Fitness, and Washington Athletic were dismissed by summary judgment on January 16, 1998, for lack of evidence establishing proximate cause. The trial court also based Bally's dismissal on waiver and release language in Marshall's membership contract. 1

Standard of Review

When reviewing a summary judgment order, we engage in the same inquiry as the trial court. Wilson v. Steinbach, 98 Wash. 2d 434, 437, 656 P.2d 1030 (1982). A summary judgment motion can be granted only if the pleadings, affidavits, depositions, and admissions on file demonstrate the absence of any genuine issues of material fact, and that the moving party is entitled to judgment as a matter of law. Barrie v. Hosts of America, Inc., 94 Wash. 2d 640, 642, 618 P.2d 96 (1980)). The court must consider all facts submitted and all reasonable inferences from the facts in the light most favorable to the nonmoving party. Yakima Fruit & Cold Storage Co. v. Central Heating & Plumbing Co., 81 Wash. 2d 528, 530, 503 P.2d 108 (1972) (citation omitted).

[1] After the moving party has submitted adequate affidavits, the nonmoving party must set forth specific facts rebutting the moving party's contentions and disclosing the existence of issues of material fact. Young v. Key Pharmaceuticals, Inc., 112 Wash.2d 216, 225, 770 P.2d 182 (1989). The nonmoving party may not rely on speculation or argumentative assertions that unresolved factual issues remain. Vacova Co. v. Farrell, 62 Wash. App. 386, 395, 814 P.2d 255 (1991). The motion should be granted only if, from all the evidence, reasonable persons could reach but one conclusion. Morris v. McNicol, 83 Wash. 2d 491, 494-95, 519 P.2d 7 (1974).

Proximate Cause

Marshall argues that she set forth sufficient facts connecting her injuries to the allegedly defective treadmill. Marshall points to isolated excerpts from her deposition testimony to link the respondents' alleged negligence to her injuries.

The mere occurrence of an accident and an injury does not necessarily lead to an inference of negligence. Tinder v. Nordstrom, Inc., 84 Wash. App. 787, 792-93, 929 P.2d 1209 (1997)). In order to prove actionable negligence, a plaintiff must establish the existence of a duty, a breach of this duty, and a resulting injury. Schooley v. Pinch's Deli Market, Inc., 134 Wash. 2d 468, 474, 951 P.2d 749 (1998). For legal responsibility to attach to negligent conduct, the claimed breach of duty must be a proximate cause of the resulting injury. Pratt v. Thomas, 80 Wash. 2d 117, 119, 491 P.2d 1285 (1971); Ferrin v. Donnellefeld, 74 Wash. 2d 283, 285, 444 P.2d 701 (1968). Even if negligence is clearly established, the respondents may not be held liable unless their negligence caused the accident.

While issues of negligence and proximate cause are not generally subject to summary adjudication, courts are not precluded from rendering such judgments. LaPlante v. State, 85 Wash.2d 154, 159, 531 P.2d 299 (1975) (citations omitted). Where the facts are undisputed and reasonable persons could reach but one conclusion, the question of proximate cause is one of law subject to review. Mejia v. Erwin, 45 Wash. App. 700, 705, 726 P.2d 1032 (1986).

Here, Marshall alleges a malfunctioning treadmill placed in an unsafe location caused her injuries. In answers to interrogatories, Marshall stated that she set the machine for 15 minutes, it stopped at 13 minutes, she reset the machine, it started at a faster pace of 6.2 miles per hour, and she was thrown off, hitting her head on the glass behind her. In her deposition, Marshall initially repeated this version of events. When questioned, however, she testified that she had no memory of any of these events other than resetting the machine after it stopped. And Marshall conceded that she could not recall if her boyfriend supplied the interrogatory answers. Further, at the summary judgment hearing, the court questioned Marshall's attorney:

THE COURT: Counsel, before you move off that, there's no facts here that your client hit something to the side. In fact, isn't it her version that she went straight back?

[COUNSEL]: No, it is not. She does not recall.

THE COURT: She doesn't recall how anything happened?

[COUNSEL]: She has a two-week lapse in memory because of this. She does not recall what happened. The medical records in this case document that she has a brain injury from a traumatic event to the head. Whether she hit that on the floor, whether she hit it on the side, I'm not sure.

Thus, it is undisputed that Marshall is unable to articulate specific facts about how the accident occurred.

Here, Marshall gave clear answers to unambiguous deposition questions that demonstrate her total lack of memory regarding the accident. As such, Marshall cannot now point to isolated excerpts from her deposition testimony as establishing a genuine issue of material fact.

"When a party has given clear answers to unambiguous [deposition] questions which negate the existence of any genuine issue of material fact, that party cannot thereafter create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony."

Duckworth v. Langland, Wash. App., 966 P.2d 1287, 1290 (1998) (quoting Marshall v. AC & S Inc., 56 Wash. App. 181, 185, 782 P.2d 1107 (1989) (quoting Van T. Junkins and Assocs., Inc. v. U.S. Indus., Inc., 736 F.2d 656, 657 (11th Cir.1984))).

Without any memory of the accident, Marshall...