Santa Clara County Superior Court Superior Court No. 112CV236937 Hon. William J. Elfving, Trial Judge.
Gwilliam, Ivary, Chiosso, Cavalli & Brewer, Steven R. Cavalli and Jayme L. Walker for Plaintiffs and Appellants.
Prindle, Amaro, Goetz, Hillyard, Barnes & Reinholtz Jack C. Nick and Robert R. Willis for Defendant and Respondent.
Walsh, J. [*]
Plaintiffs Stacey and Ruben Chavez appeal from a judgment entered in favor of defendant 24 Hour Fitness USA, Inc. (24 Hour) after the trial court granted 24 Hour’s motion for summary judgment. Stacey suffered a traumatic brain injury while exercising at one of 24 Hour’s facilities in San
Jose, California. She and her husband, Ruben, who sought recovery for loss of consortium, sued 24 Hour for ordinary and gross negligence, premises liability, and strict products liability.
On appeal, plaintiffs contend there is a triable issue of fact as to whether 24 Hour was grossly negligent. We agree and shall reverse.
I. Factual and Procedural Background
Stacey became a member of 24 Hour’s Parkmoor facility on January 3, 2011. On that date, she signed a membership agreement that included a release of liability. Under the release provision, Stacey agreed, among other things, that 24 Hour would not be liable for any injury she suffered as a result of 24 Hour’s negligence
Stacey was injured on February 28, 2011, when the back panel of a “FreeMotion” cable crossover machine (“cross-trainer”) struck her in the head at the 24 Hour’s Parkmoor facility. As a result of the traumatic brain injury she sustained, Stacey experiences lapses of consciousness, severe
headaches, photophobia, poor memory, stuttering, dizziness, nausea, changes in her ability to taste, decreased appetite, and personality changes that have interfered with her work, marriage, and other relationships. Plaintiffs filed a complaint against 24 Hour alleging claims for ordinary and gross negligence, premises liability, and strict products liability on November 30, 2012.
On October 25, 2013, 24 Hour moved for summary judgment. It argued that the written release of liability in the membership agreement was a complete defense to plaintiffs’ claims for negligence and premises liability. As to the products liability claim, 24 Hour argued it was not subject to liability because it was a service provider and not in the chain of distribution. Finally, 24 Hour maintained plaintiffs could not show “extreme departure from the ordinary standard” of “care or failure to exercise scant care, ” as required to state a gross negligence claim because 24 Hour “employed a technician to routinely inspect and perform preventative maintenance on the equipment.”
In support of its motion for summary judgment, 24 Hour submitted the declaration of John Reb, the area manager of facilities responsible for overseeing equipment maintenance for 24 Hour facilities in Northern California, including the Parkmoor 24 Hour. Reb declared that 24 Hour employs a facilities technician at each club who is responsible for maintenance, inspection, and repair of exercise equipment. The facilities technician is tasked with performing monthly preventative maintenance on each piece of exercise equipment. In doing so, the facilities technician is to “follow and complete” the preventative maintenance chart provided. A copy of the February 2011 preventative maintenance chart for the Parkmoor facility was attached to Reb’s declaration. According to Reb, that chart showed the facilities technician “would have been responsible for performeing [sic] preventative maintenance” on the cross-trainer during the week of February 7, 2011, which would have involved removing the back panel. The cross-trainer is among the pieces of equipment listed on the February 2011 preventative maintenance chart for the week of February 7, 2011.
Reb further declared that the facilities technician also is responsible for repairing equipment as needed. A maintenance log of such repairs is stored in a computer program called “Accruent.” A printout of the Accruent maintenance log for the Parkmoor facility from August 2009 through April 2011 was attached to Reb’s declaration. That printout showed six work orders for the cross-trainer. According to Reb, one of those work orders, dated March 1, 2010, “would have likely required removal of the back panel of the equipment to perform the repair.”
24 Hour also submitted the declaration of Gabriel Galan, who was the service manager of the Parkmoor facility in February 2011. Galan declared 24
Hour employs facilities technicians to inspect exercise equipment during daily walk-throughs and to perform monthly preventative maintenance. According to Galan, “facilities technicians are required to complete a Preventative Maintenance Chart, documenting the preventative maintenance performed on the equipment.” Referencing the same February 2011 preventative maintenance chart for the Parkmoor facility that Reb discussed, Galan declared it showed the cross-trainer “underwent preventative maintenance the week of February 7, 2011.”
On November 8, 2013, two weeks after 24 Hour moved for summary judgment, plaintiffs subpoenaed Mark Idio to appear for a deposition on December 23, 2013. 24 Hour had identified Idio in a May 2013 discovery response as the person responsible for equipment maintenance at the Parkmoor facility when Stacey was injured. After identifying Idio, 24 Hour represented it would produce him. ...