Metropolitan News-Enterprise


Wednesday, January 29, 2020


Page 1


Court of Appeal:

Operator of Gym Not Liable for Death of Man While Exercising

Personal Injury Lawyers John Girardi, Alan Romero Forfeited Contention of Statutory Violation On Part of Defendant 24 Hour Fitness by Failing to Raise It in the Trial Court, Opinion Declares


By a MetNews Staff Writer


Div. Two of the Fourth District Court of Appeal yesterday affirmed a judgment in favor of 24 Hour Fitness in a wrongful death action brought against it by the widow and children of a man who died from cardiac arrest while exercising at one of its facilities, with the court spurning a theory the plaintiffs’ heavyweight personal injury attorneys failed to put forth in the trial court.

The plaintiffs argued on appeal that Riverside Superior Court Daniel A. Ottolia erred in summarily adjudicating a cause of action for negligence per se in favor of the defendant because 24 Hour failed to meet its burden of showing compliance with the mandate of Health and Safety Code §104113 of training its personnel in the use of automatic external defibrillators (“AED”).

Justice Frank J. Menetrez, after noting that “negligence per se is not an independent cause of action” but is an “evidentiary doctrine,” said the argument has been forfeited. He noted, in his unpublished opinion, that the lawyers at trial—John Girardi of Girardi|Keese and Pasadena attorney  Alan J. Romero—failed to raise the contention in the Superior Court.

Statutory Requirement

Sec. 104113(e)(2)(D), applicable to “health studios,” provides:

“For every automatic external defibrillator unit acquired, up to five units, no less than one employee per automatic external defibrillator unit shall complete a training course in cardiopulmonary resuscitation and automatic external defibrillator use that complies with the regulations adopted by the Emergency Medical Services Authority and the standards of the American Heart Association or the American Red Cross.”

Menetrez wrote that “plaintiffs never raised” below “their present argument—that 24 Hour failed to show that Harris’s training complied with the regulations of the Emergency Medical Services Authority and the standards of the American Heart Association or the American Red Cross.”

He declared:

“The failure to preserve the argument in the trial court constitutes a forfeiture.”

Liability Release

The plaintiffs sought to avoid a clause in the membership application signed by the decedent, Estiban Mejia, bearing the heading, “Release of Liability and Assumption of Risk” which specified non-liability in the event of death on the premises. They argued that enforcement of the clause is statutorily barred and, in any event, cannot be applied in the face of gross negligence.

 “The liability release is prohibited by statute in part—it cannot release claims that arise from a violation of statutory law, such as section 104113,” Menetrez said. “But for the reasons already discussed, plaintiffs’ claim that 24 Hour violated section 104113 does not survive the summary adjudication motion.”

He added:

“Moreover, the court correctly concluded that there was no triable issue of material fact as to gross negligence.”

Civil Code §1668

The plaintiffs pointed to Civil Code §1668 which provides:

“All contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for…violation of law, whether willful or negligent, are against the policy of the law.”

That section would bar application of the release to a violation of §104113, the jurist said.

“But the trial court summarily adjudicated the statutory claims by ruling that 24 Hour complied with section 104113, and plaintiffs have forfeited their only challenge to that ruling on appeal,” he continued. Thus, Civil Code section 1668 does not ultimately save the negligence per se cause of action.”

The case is Hernandez v. 24 Hour Fitness USA, Inc., E071926

Romero and Girardi represented the plaintiffs on appeal, joined by Kali V. Fournier of Girardi|Keese. Martin N. Buchanan acted for 24 Hour.

Romero, announcing the filing of the action in a press release, advised:

“As 24 Hour Fitness was involved in another near-fatal failure to rescue a club patron with an AED device at another location, there is reason to believe that there exists the likelihood of substantial harm to individuals or the public interest as a result of these alleged violations of California Health & Safety Code § 104113.  Any member of the public with knowledge or evidence of similar alleged violations pertaining to AED devices at such a health studio are advised to consult with this office.”


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