Oliveri v. Osteostrong

• Decision Date: 17 May 2021
• Docket Number: NO. 2019-L-104,2019-L-104
• Citation: 171 N.E.3d 386
• Court: Ohio Court of Appeals
• Parties: Beatrice OLIVERI, Plaintiff-Appellant, v. OSTEOSTRONG, et al., Defendant-Appellee.

171 N.E.3d 386

Beatrice OLIVERI, Plaintiff-Appellant,

v.OSTEOSTRONG, et al., Defendant-Appellee.

NO. 2019-L-104

Court of Appeals of Ohio, Eleventh District, Lake County.

Decided May 17, 2021

Mitchell A. Weisman and R. Matthew Weisman, Weisman Law Firm, 25201 Chagrin Boulevard, Suite 270, Beachwood, Ohio 44122 (For Plaintiff-Appellant).

Carol K. Metz, Travelers Insurance, P.O. Box 64093, St. Paul, Minnesota 55164 (For Defendant-Appellee).

THOMAS R. WRIGHT, J.

{¶1} Appellant, Beatrice Oliveri, appeals the decision awarding summary judgment in favor of appellee, OsteoStrong. We reverse and remand.

{¶2} In May 2016, Oliveri was given two free sessions to work out at OsteoStrong after attending a presentation at a senior center. Before she went to OsteoStrong, Oliveri, who suffers from osteoporosis

, consulted her doctor who advised her to be careful.

{¶3} At her first session, Oliveri completed a wellness assessment that includes participant information and a release from liability. The end of the assessment states:

I am physically capable of participating in an exercise program or the OsteoStrong system. I have either received permission from my doctor to perform the exercise and the OsteoStrong system or I decided to participate in the OsteoStrong program without consulting my physician and I assume all responsibilities for my decision to engage in the OsteoStrong program. I waive my right to pursue legal action against OsteoStrong, its owners, partners, and agents for any physical or mental anguish that I may incur as a result of my participating with the OsteoStrong system.

{¶4} After signing the assessment, Oliveri met with an instructor and told him that she was afraid to try the exercises. The instructor assured her that the program was "completely different" and "there was minimal, very minimal risk." Oliveri completed the first session in two to five minutes and experienced no pain.

{¶5} At her second session, Oliveri's instructor was Justin Ramey. This session consisted of four exercises. As she completed her fourth exercise, Ramey told her to repeat it and to "do it harder, harder." When Oliveri attempted to do so, she felt and heard a "pop" that took her breath away. She was eventually diagnosed with a thoracic compression fracture

.

{¶6} Oliveri filed suit against OsteoStrong; Bill Atterbury and Dennis Durkin, the owners of OsteoStrong; and True Wellness, LLC, the manufacturer of the OsteoStrong machines. She alleged they were negligent by failing to warn of a known dangerous condition; by failing to instruct her on the use of the machine; by allowing its employees, agents, and consumers to use dangerous machines; by failing to supervise employees on the proper methods to use the machines; and by failing to inspect and maintain the equipment.

{¶7} Oliveri eventually voluntarily dismissed her claims against True Wellness, LLC, Bill Atterbury, and Dennis Durkin. OsteoStrong, the sole remaining defendant, moved for summary judgment claiming (1) that Oliveri waived her right to pursue legal action against it by signing the written waiver and (2) that she assumed the risk of injury under the theories of express assumption of the risk, primary assumption of the risk, and implied assumption of the risk.

{¶8} Oliveri argued in opposition that the written waiver was ambiguous and therefore invalid. She also argued she did not assume the risk of her injuries and that genuine issues of material fact remained as to whether the OsteoStrong program is inherently dangerous.

{¶9} The trial court held that summary judgment was warranted on the grounds of waiver and express assumption of the risk, finding the waiver clear and unambiguous. In light of its decision finding Oliveri expressly waived her right to sue for her injuries, it did not address the arguments regarding primary and implied assumption of the risk.

{¶10} We collectively address Oliveri's assignments of error:

{¶11} "[1.] The trial court erred by granting summary judgment based on its determination that Appellee's ‘waiver’ is clear and unambiguous, the interpretation of which is a question of fact for a jury since reasonable minds could come to different conclusions.

{¶12} "[2.] The trial court erred by granting summary judgment on the grounds of express assumption of risk because Appellee did not expressly specify that Ms. Oliveri was waiving her right to sue for injuries due to Appellee's negligence."

{¶13} Oliveri contends there are genuine issues of material fact as to whether the waiver she signed is clear and unambiguous and whether she expressly assumed the risk of her injury.

{¶14} "Summary judgment is appropriate when (1) no genuine issue as to any material fact exists; (2) the party moving for summary judgment is entitled to judgment as a matter of law; and (3) viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can reach only one conclusion adverse to the nonmoving party." Allen v. 5125 Peno, LLC , 11th Dist., 2017-Ohio-8941, 101 N.E.3d 484, ¶ 6, citing Holliman v. Allstate Ins. Co. , 86 Ohio St.3d 414, 415, 715 N.E.2d 532 (1999). "The initial burden is on the moving party to set forth specific facts demonstrating that no issue of material fact exists and the moving party is entitled to judgment as a matter of law." Allen at ¶ 6, citing Dresher v. Burt , 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). "If the movant meets this burden, the burden shifts to the nonmoving party to establish that a genuine issue of material fact exists for trial." Id.

{¶15} Not every factual dispute precludes summary judgment; only disputes as to material facts that may affect the outcome preclude summary judgment. Bender v. Logan , 4th Dist., 2016-Ohio-5317, 76 N.E.3d 336, ¶ 49, citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

{¶16} Oliveri contends the trial court erred in finding that the waiver in her wellness assessment was clear and unambiguous. She argues the contract language does not mention negligence or liability and that "physical anguish" has more than one meaning. Thus, she claims summary judgment was not warranted.

{¶17} "Express assumption of risk * * * arise[s] where a person expressly contracts with another not to sue for any future injuries which may be caused by that person's negligence." Anderson v. Ceccardi , 6 Ohio St.3d 110, 114, 451 N.E.2d 780 (1983). Express assumption of the risk is the same as waiving the right to recover. See Holmes v. Health & Tennis Corp. of Am. , 103 Ohio App.3d 364, 367, 659 N.E.2d 812 (1st Dist. 1995).

{¶18} "For express assumption of risk to operate as a bar to recovery, the party waiving his right to recover must make a conscious choice to accept the consequences of the other party's negligence." Id. at 367, 659 N.E.2d 812, citing Anderson at 114, 451 N.E.2d 780. "It follows that in order for a conscious acceptance to be made, an agreement purporting to constitute an express assumption of risk must state a clear and unambiguous intent to release the party from liability for its negligence." Holmes at 367, 659 N.E.2d 812, citing Tanker v. N. Crest Equestrian Ctr. , 86 Ohio App.3d 522, 621 N.E.2d 589 (9th Dist. 1993).

{¶19} Further, " ‘[r]eleases from liability for future tortious conduct are generally not favored by the law and are narrowly construed.’ " Reo v. Allegiance Admrs. LLC , 11th Dist. Lake No. 2017-L-112, 2018-Ohio-2464, 2018 WL 3110756, ¶ 20, quoting Brown-Spurgeon v. Paul Davis Sys. of Tri-State Area, Inc. , 12th Dist. Clermont No. CA2012-09-069, 2013-Ohio-1845, 2013 WL 1883214, ¶ 50, citing Glaspell v. Ohio Edison Co. , 29 Ohio St.3d 44, 46-47, 505 N.E.2d 264 (1987). However, courts routinely apply releases from future tort liability if the intent of the parties regarding what kind of liability and what individuals or entities are being released is clear and unambiguous. Reo at ¶ 20. The words "release" or "negligence" are not necessary to clearly and unambiguously waive a right. See Hall v. Woodland Lake Leisure Resort Club, Inc. , 4th Dist. Washington No. 97CA945, 1998 WL 729197, *6 (Oct. 15, 1998).

{¶20} When a writing is clear and unambiguous, the interpretation is a question of law. Pruitt v. Strong Style Fitness, 8th Dist. Cuyahoga No. 96332, 2011-Ohio-5272, 2011 WL 4842485, ¶ 8, citing Alexander v. Buckeye Pipe Line Co. , 53 Ohio St.2d 241, 246, 374 N.E.2d 146 (1978). "Ambiguity exists only when a provision at issue is susceptible of more than one reasonable interpretation." Lager v. Miller-Gonzalez , 120 Ohio St.3d 47, 2008-Ohio-4838, 896 N.E.2d 666, ¶ 16. Moreover, we must read the clauses as a whole, not piecemeal. Gomolka v. State Auto. Mut. Ins. Co. , 70 Ohio St.2d 166, 172, 436 N.E.2d 1347 (1982).

{¶21} In interpreting contracts, "Courts must give common words their ordinary meaning unless manifest absurdity would result or some other meaning is clearly evidenced from the face or overall contents of the written instrument." JP Morgan Chase Bank, Natl. Assn. v. Heckler , 3d Dist. Union No. 14-12-26, 2013-Ohio-2388, 2013 WL 2639137, ¶ 20, citing In re All Kelley & Ferraro Asbestos Cases , 104 Ohio St.3d 605, 2004-Ohio-7104, 821 N.E.2d 159, ¶ 29. And, although not always explicitly referenced or relied on, the rules of grammar are elemental whenever reading and understanding any writing, especially a contract. "Proper contract interpretation includes the application of ordinary rules of grammar." 17A C.J.S. Contracts § 406 ; see Gahanna v. Ohio Mun. Joint Self-Ins. Pool , 10th Dist., 2021-Ohio-445, 168 N.E.3d 58, ¶ 12 ("The court must read words and phrases in context and apply the rules of grammar and common usage.").

{¶22} As stated, the wellness assessment includes a waiver before Oliveri's signature:

I am physically capable of participating in an exercise program or the OsteoStrong system. I have either received permission from my doctor to perform the exercise and the OsteoStrong system or I decided to participate

...