California Court of Appeals, Second District, Third Division
APPEAL from a judgment of the Superior Court of Los Angeles County, No. VC062167, Samantha P. Jessner, Judge.
Wingert Grebing Brubaker & Juskie, Charles R. Grebing, Andrew A. Servais, and Dwayne H. Stein for Plaintiff and Appellant.
Prindle, Amaro, Goetz, Hillyard, Barnes & Reinholtz, Jack C. Nick and Robert R. Willis for Defendant and Respondent.
LAVIN, J. [*]
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.
FACTUAL AND PROCEDURAL BACKGROUND
1. Factual Background
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: “Using the 24 Hour Fitness USA, Inc. (24 Hour) facilities involves the risk of injury to you or your guest, whether you or someone else causes it. Specific risks vary from one activity to another and the risks range from minor injuries to major injuries, such as catastrophic injuries including death.
In consideration of your participation in the activities offered by 24 Hour, you understand and voluntarily accept this risk and agree that 24 Hour, its officers, directors, employees, volunteers, agents and independent contractors will not be liable for any injury, including, without limitation, personal, bodily, or mental injury, economic loss or any damage to you, your spouse, guests, unborn child, or relatives resulting from any negligence of 24 Hour or anyone on 24 Hour’s behalf or anyone using the facilities whether related to exercise or not. You agree to indemnify, defend and hold 24 Hour harmless against any liability, damages, defense costs, including attorney fees, or from any other costs incurred in connection with claims for bodily injury, wrongful death or property damage caused by your
negligence or other wrongful acts or omissions. You further agree to hold harmless, defend and indemnify 24 Hour from all liability, damages, defense costs, including attorney fees, or from any other costs incurred in connection with claims for bodily injury, wrongful death or property damage brought by you, your guests, or minors, even if 24 Hour was negligent. Further, you understand and acknowledge that 24 Hour does not manufacture fitness or other equipment at its facilities, but purchases and/or leases equipment. You understand that 24 Hour 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 24 Hour and you agree to all the terms on pages 1 through 4 of this agreement and acknowledge that you have received a copy of it and the membership policies." (Original boldface and 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 ...