APPEAL from a judgment of the Superior Court of Los Angeles County, James A. Kaddo, Judge. Affirmed. (Los Angeles County Super. Ct. No. LC074874).
The opinion of the court was delivered by: Mosk, J.
CERTIFIED FOR PUBLICATION
Plaintiff and appellant Susana Ontiveros (plaintiff) sustained personal injuries while exercising on a stair step machine at a fitness center owned and operated by defendant and respondent 24 Hour Fitness USA, Inc.*fn1 (defendant). She sued defendant, asserting, inter alia, a claim for strict product liability. The trial court granted defendant's summary judgment motion as to that claim on the grounds that plaintiff acknowledged in her membership agreement that defendant could not be held liable for defectiveexercise equipment and that defendantprovided "recreational services."
On appeal, plaintiff contends that there are triable issues of fact concerning whether the dominant purpose of plaintiff's transaction with defendant was for the use of defendant's exercise machines or for the provision of fitness services. We hold that the undisputed evidence shows that the dominant purpose of plaintiff's membership agreement with defendant was for the provision of fitness services and that as a result, defendant is not strictly liable to plaintiff under a product liability theory of recovery. We therefore affirm the judgment.
At the premises where plaintiff was injured, defendant operated a fitness center at which members could utilize various exercise equipment and participate in aerobic exercise classes, among other activities, pursuant to the terms of a membership agreement between defendant and the member. According to defendant's risk management analyst, each of defendant's exercise facilities offered the following equipment, services, and amenities: free weights; cardio-vascular conditioning machines and other specialized fitness equipment; group exercises such as aerobics, dance classes, and yoga; testing centers to record certain physical characteristics such as blood pressure and weight; an optional introductory membership program that included three sessions with staff trainers; and locker rooms. For additional fees, a member could obtain personal training and nutritional counseling.
Plaintiff entered into a membership agreement with defendant, which was thereafter modified to provide an upgraded membership. Both her original agreement and upgraded agreement contained liability release provisions that included the following language: "You understand and acknowledge that [defendant] is providing recreational services and may not be held liable for defective products. By signing below, you acknowledge and agree that you have read the foregoing and know of the nature of the activities at [defendant's facilities] and you agree to all the terms of the front and back pages of this agreement and acknowledge you have received a copy of it and the membership policies."
The upgraded membership agreement entitled plaintiff to use defendant's facilities, described as "Active," "Express," and "Sport." An "Active" facility referred to a facility that is less than 25,000 square feet, offering fitness amenities such as group exercise classes, weight training, cardiovascular equipment, and locker rooms. A "Sport" facility referred to a facility generally 25,000 to 50,000 square feet, offering the same amenities as the other facilities, as well as further amenities.*fn3
As to the incident in question, defendant referred to plaintiff's allegations that she was injured while exercising on stair step equipment at defendant'sfacility in Panorama City. According to plaintiff's allegations, due to the failure of a component part, both "steps" of the machine lost all resistance as she was using it, causing plaintiff to fall backwards off the machine onto the floor.
B. Plaintiff's Evidence*fn4
Plaintiff did not dispute defendant's facts set forth above or argue that there were conflicting inferences that could be drawn from those facts. Instead, she provided the additional facts set forth in this section.
Plaintiff purchased a membership with defendant because she wanted to lose weight and believed that exercising using defendant's exercise equipment would help her achieve that goal. Plaintiff could not afford to purchase exercise equipment on her own and believed that using defendant's equipment ...