California Court of Appeals, Third District, Sacramento
ETELVINA JIMENEZ ET AL. et al., Plaintiffs and Appellants,
24 HOUR FITNESS USA, INC., Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Sacramento County, No. 34201100096852-CUPOGDS David I. Brown, Judge.
[Copyrighted Material Omitted]
Moseley Collins III and Thomas G. Minder for Plaintiffs and Appellants.
Bruce L. Davis and Jack C. Nick for Defendant and Respondent.
Plaintiffs Etelvina and Pedro Jimenez appeal from summary judgment in favor of defendant 24 Hour Fitness USA, Inc. (“24 Hour”) in plaintiffs’ negligence action stemming from a catastrophic injury sustained by Etelvina while using a treadmill at 24 Hour. Plaintiffs asserted that 24 Hour was grossly negligent in setting up the treadmill in a manner that violated the manufacturer’s safety instructions. 24 Hour moved for summary judgment, contending that it was not liable as a matter of law because Etelvina signed a liability release when she joined the gym. The trial court agreed and granted summary judgment.
On appeal, plaintiff contends that the trial court erred in granting summary judgment in 24 Hour’s favor because: (1) the liability release is not enforceable against plaintiffs’ claim of gross negligence; (2) the release was obtained by fraud and misrepresentation; and (3) the release only encompasses reasonably foreseeable risks and Etelvina’s injury was not reasonably foreseeable at the time she signed the release.
The third contention is forfeited for purposes of this appeal, but we agree with the first two contentions. Accordingly, we reverse.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs filed a complaint against 24 Hour stating causes of action for premises liability, general negligence, and loss of consortium. The action arose out of injuries Etelvina sustained on January 16, 2011, while exercising at a 24 Hour facility in Sacramento, California. Etelvina’s expert opined that she fell backwards off of a moving treadmill and sustained severe head injuries when she hit her head on the exposed steel foot of a leg exercise machine that 24 Hour placed approximately three feet ten inches behind the treadmill.
24 Hour filed an answer to the complaint generally denying the allegations and claiming several affirmative defenses, including the defense that plaintiffs’ claims were barred by a liability release.
At the time of her injuries, Etelvina was a member of 24 Hour. She joined 24 Hour approximately two years before the day she sustained her injury, and thereafter, she used the facilities regularly several times per week. On the day she joined, she was directed to the Membership Manager, Justin Wilbourn. She was then required to sign a membership agreement. However, Etelvina could not read or speak English, and Wilbourn did not speak Spanish. Wilbourn knew Etelvina did not read or speak English. Nevertheless, he did not call a Spanish-speaking employee to help him translate. Instead, he pointed to his computer screen to a figure, $24.99, indicating the membership fee, and made pumping motions with his arms like he was exercising. Etelvina understood the numbers, which are identical in Spanish, and she understood Wilbourn’s physical gestures to mean that if she paid that amount, she could use the facility. She could not read anything else. Wilbourn then pointed to the lines in the agreement for Etelvina to sign.
The membership agreement contained a liability release provision, which provided: “Using the 24 Hour 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 the negligence of 24 Hour or anyone on 24 Hour’s behalf or anyone using the facilities whether related to exercise or not.... 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.”
Wilbourn did not point out the release to Etelvina or make any other indications about the scope of the agreement aside from his gestures mimicking exercise and the fee. Etelvina believed she signed an agreement only to pay the monthly fee of $24.99. In her declaration supporting plaintiffs’ separate statement, Etelvina declared that “Wilbourn misrepresented the agreement and deceived [her]. He hid from [her] that she was also signing a release of liability.” Etelvina also declared that Wilbourn “misled” and “defrauded” her, and she relied on Wilbourn’s “indication of the meaning of the contract.”
Etelvina has no memory of the incident leading to her injuries. However, Laurence H. Neuman, an expert on civil engineering and accident reconstruction, investigated the incident. In the course of his investigation, Neuman determined that the 24 Hour location in question had 21 treadmill machines. In the area where Etelvina fell, “the distance directly behind the running belt of the treadmill to the closest piece of equipment was 3 feet 10 inches.” Neuman determined that other treadmills in the gym were placed with an even shorter distance between the running belts and other gym equipment, approximately three feet. These measurements reflect the same conditions present at the time of Etelvina’s injuries.
However, the treadmill manufacturer’s owner’s manual instructed in a section titled “Treadmill Safety Features”: “[I]t is important to keep the area around the treadmill open and free from encumbrances such as other equipment. The minimum space requirement needed for user safety and proper
maintenance is three feet wide by six feet deep... directly behind the running belt.” (Italics added.) The manufacturer’s assembly guide for the treadmill also says to provide a minimum six-foot clearance behind the treadmill for “user safety” and maintenance. Neuman determined that none of the 21 treadmills at this 24 Hour location had a six-foot safety clearance. Neuman concluded that 24 Hour’s act of placing other exercise equipment within the six-foot safety zone increased the risk of injury to persons using the treadmills.
Dr. James P. Dickens assessed Etelvina’s injuries, her medical records, and Neuman’s findings, and he determined that Etelvina fell backward while using the treadmill and “struck her head, fracturing the right occipital bone and right temporal bone.” Dr. Dickens noted that while the gym floor is covered with shock-absorbing material, there was a leg exercise machine with an exposed steel foot that was approximately three feet ten inches behind the treadmill’s moving belt. Dr. Dickens opined that it was unlikely that Etelvina would have suffered the skull fractures had her head landed on the shock-absorbing floor coverings behind the treadmill and she likely hit her head on the leg machine. Additionally, Barton Waldon, a certified personal fitness trainer, opined that it is foreseeable that treadmill-users occasionally trip, stumble, or fall off treadmills. Waldon declared that “[f]or the safety of the users and in order to minimize injury, it is important that a safety zone behind the treadmill be kept clear of other machines and obstacles so that users falling off or pushed off the rear of the treadmill do not strike such objects.” Accordingly, Waldon opined that 24 Hour’s act of placing exercise equipment inside the safety zone “greatly increased the risk of injury to [Etelvina].”
In his deposition, Wilbourn, the Membership Manager for 24 Hour, said that he did not remember meeting Etelvina, although he identified himself as the employee who assisted her based on his signature on her membership agreement. Wilbourn testified that typically, when he encountered a potential customer who only spoke Spanish, his habit and custom was to have a Spanish-speaking employee handle the sign-up for that potential customer.
Motion for Summary Judgment
24 Hour filed a motion for summary judgment, or in the alternative, summary adjudication, asserting that plaintiffs’ claims were barred by the release. As for the loss of consortium cause of action, 24 Hour argued the claim was barred because it was derivative of plaintiffs’ negligence and premises liability causes of action. Plaintiffs opposed the motion, contending that the release was invalid because 24 Hour was grossly negligent and because 24 Hour obtained the release through fraud. However, plaintiffs did not specifically raise the argument that the release did not encompass
Etelvina’s injury because it was not reasonably foreseeable to her at the time she signed the release that 24 Hour would intentionally increase her risk of injury.
Plaintiffs argued that due to 24 Hour’s fraud in obtaining Etelvina’s signature on the release, the release was ineffective. Plaintiffs further argued that the holding in Randas v. YMCA of Metropolitan Los Angeles (1993) 17 Cal.App.4th 158, 163 [21 Cal.Rptr.2d 245] (Randas), does not apply here, because in this case, unlike in Randas, there was overreaching and fraud. The court inquired how Etelvina could know that Wilbourn misrepresented the nature of the release if she could not understand English. Plaintiffs’ counsel replied that Wilbourn communicated with her about the purported contents of the membership agreement through gesturing and pointing at the numbers on the computer screen. The court then inquired about the gross negligence exception to enforcing releases, pointing out that plaintiffs did not specifically allege a cause of action for gross negligence in their complaint. Plaintiffs responded that under California law, there is not a distinct cause of action for gross negligence and alleging general negligence suffices. Plaintiffs also contended that the question of gross negligence is a question of fact to be resolved by the jury rather than a matter of law to be resolved on summary judgment. The court questioned whether there was an industry standard on the appropriate safety clearance behind treadmills. Plaintiffs contended that the industry standard is evidenced in the manufacturer’s directions and Waldon’s declaration. The court expressed concern that Waldon’s “assumption is predicated upon the fact that she was on the treadmill. If you assume she was not on the treadmill, and we don’t have any ...