Zipusch v. La Workout, Inc., B194195.

Decision Date03 October 2007
Docket NumberNo. B194195.,B194195.
Citation66 Cal.Rptr.3d 704,155 Cal.App.4th 1281
CourtCalifornia Court of Appeals Court of Appeals
PartiesYoko ZIPUSCH, Plaintiff and Appellant, v. LA WORKOUT, INC., Defendant and Respondent.

The Mandell Law Firm and Mara E.J. Burnett, Northridge, for Plaintiff and Appellant.

Law Offices of Virgil L. Roth, Virgil L. Roth, South Pasadena, and Anthony A. Dimonte, Pasadena, for Defendant and Respondent.

JOHNSON, Acting P.J.

Yoko Zipusch appeals from a summary judgment entered in favor of Northridge GG, Inc. (Northridge) in her negligence action for personal injuries sustained when her foot became stuck to a sticky substance on a treadmill at a health club owned by Northridge.1 Zipusch contends the trial court erroneously concluded there were no triable issues of material fact regarding two matters: first, whether the liability release contained in the signed membership agreement exculpated the health club from its own negligence; and second, whether the health club negligently failed to inspect and clean its exercise equipment. On de novo review, we conclude (1) the release is too ambiguous to insulate the health club from liability to Zipusch for its own negligence, and (2) triable issues of material fact exist regarding whether the health club negligently failed to inspect and maintain its exercise equipment. Accordingly, we reverse the judgment and remand the matter for further proceedings.


Zipusch signed a "Membership Agreement" in October 2004 and thereafter became a member of LA Workout. The double-sided membership agreement contains a readily identifiable assumption of risk provision located at the bottom of the front page which states: "The use of the facility at LA Workout naturally involves the risk of injury to yourself or your guest, whether you or someone else cause [sic ] it. As such you understand and voluntarily accept this risk and agree that LA Workout will not be liable for injury, including without limitation, personal, bodily or mental injury, economic loss or damage to you, your spouses [sic ], guests, unborn child, or relatives resulting from the negligence or other acts of anyone else using LA Workout. If there is any claim by anyone based on injury loss or damage described here, which involves you or your guest, you agree to (1) defend LA Workout against such claims and pay LA Workout for all expenses relating to the claim and (2) indemnify LA Workout for all liabilities to you, your spouse, guests, relatives, or anyone else, resulting from such claims. The member or guest will defend and indemnify LA Workout for any negligence EXCEPT the sole negligence of the club. This agreement is not effective until you sign and date it. By signing below, you agree to the terms above."

On or about December 10, 2004, Zipusch allegedly sustained injuries when her foot became stuck to a sticky substance on a treadmill at the health club, causing her to lose her balance. Zipusch filed a complaint against LA Workout for general negligence and premises liability alleging its failure to inspect and maintain the exercise equipment resulted in the sticky substance remaining on the treadmill, causing her to lose her balance when her foot became stuck to it.

Northridge answered the complaint and later moved for summary judgment. In the motion, Northridge argued the release provision of the membership agreement exculpated the health club from claims arising during a member's use of the athletic facilities. Circumventing the exact wording of the release, Northridge argued in the health club context parties reasonably contemplate release provisions bar claims arising while exercising. Thus, Northridge appeared to argue, the unambiguous existence of a release exculpates a health club from claims arising while exercising without examining what the release's exact wording actually covers. Additionally, irrespective of the release provision, Northridge argued Zipusch could not raise a triable issue of material fact regarding any alleged negligence on the part of the health club, including its actual or constructive notice of the sticky substance on the treadmill.

Zipusch opposed the motion for summary judgment, arguing the release only barred claims against the health club caused by negligent third party conduct and, alternatively, the release contained an ambiguity which should be construed against the drafter, LA Workout. Either way, Zipusch argued the release did not bar claims against the health club for its own negligence. After addressing the threshold issue of the release, Zipusch presented evidence indicating the health club negligently inspected and maintained its equipment. First, Zipusch stated in her declaration, based on her own observations, 85 minutes had elapsed between the time of the accident and the last time a gym employee had inspected and cleaned the equipment. Zipusch argued a reasonable trier of fact could find the health club negligently inspected and maintained its exercise equipment by inferring the sticky substance was on the treadmill for this time period and concluding it was unreasonable and negligent to not remove the sticky substance during this time period. Additionally, at his deposition, an assistant manager of the health club testified the undersides of treadmill belts are not inspected in the normal course by gym employees monitoring the exercise area throughout the day. Zipusch argued a reasonable trier of fact could find this failure, in combination with the 85 minute gap between inspections, constituted negligence.

The trial court granted summary judgment in favor of Northridge based on the assumption of risk provision of the membership agreement, finding that while the release did not bar all claims arising during use of the health club, it did bar all claims involving third party conduct. The trial court found Zipusch had presented no evidence establishing the sticky substance materialized'on the treadmill by non-third party conduct.


Summary judgment is proper only where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law.2 "We review the trial court's decision de novo, considering all of the evidence the parties offered in connection with the motion ... and the uncontradicted inferences the evidence reasonably supports. [Citation.]"3 In the trial court, a defendant "has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant ... has met that burden, the burden shifts to the plaintiff ... to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto."4

As our Supreme Court has made clear, a defendant moving for summary judgment "has shown that the plaintiff cannot establish at least one element of the cause of action by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence: The defendant must show that the plaintiff does not possess needed evidence, because otherwise the plaintiff might be able to establish the elements of the cause of action; the defendant must also show that the plaintiff cannot reasonably obtain needed evidence, because the plaintiff must be allowed a reasonable opportunity to oppose the motion [citation]."5 The defendant does not meet its burden on summary judgment "simply" by pointing out the " 'absence of evidence to support' an element of the plaintiffs cause of action [citation]...."6


The assumption of risk provision of LA Workout's membership agreement contemplates two types of potential injuries: injuries to a member caused by others, and injuries to others caused by a member. The provision begins with an introductory sentence warning about the inherent risks of using an exercise facility. Read as a whole, the most reasonable interpretation of the risk provision is the parties' intention to exculpate the health club from injuries, whether self-inflicted or caused by other members, sustained from the inherent risks of exercising at a health club. For example, the health club would be exculpated if a member, either negligently or non-negligently, dropped a heavy weight on himself or another member. However, the risk section does not contemplate exculpating the health club from its own negligence. Thus, as discussed more fully below, the trial court improperly granted summary judgment.

A. Contractual Ambiguity Should be Construed against the Drafter, Rendering a Purported Release Unenforceable.

The interpretive doctrine of construing contractual ambiguity against the drafting party is well established.7 While "a release need not achieve perfection[,]"8 it must, nonetheless, be clear, explicit and comprehensible "to an ordinary person untrained in the law[.]"9 When examining a release, it must be "clear, explicit, and comprehensible in itself and when considered and read in whole with the entire agreement."10 If an alternative, "`semantically reasonable'" meaning exists the release is ambiguous.'11 "The threshold determination of whether a document contains ambiguities is subject to independent review."12

In the recreational sports context, parties are free to contractually redistribute risk because release provisions "do not implicate the public interest and therefore are not void as against public policy."13 Unsurprisingly, a line of California cases have upheld unambiguous release provisions involving health clubs. Some of these releases are broad with exculpation extending beyond injuries resulting from the inherent risk of exercising at a health club.

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