Court of Appeal:
Assumption of Risk of Using Gym Included Alleged Battery
Woman Who Expressly Waived Liability on the Part of Fitness Center Has No Cause of Action Based on Employee Purportedly Moving Her, Without Her Consent, After She Fell in Alighting From Treadmill, Stratton’s Opinion Says
By a MetNews Staff Writer
An agreement signed by a woman as a condition of gaining membership in a fitness club under which she assumed the risk of injuries from use of the equipment or as the result of negligence “active or passive” on the part of the personnel extends to a claim that her injuries from a fall were exacerbated by an employee moving her, without her consent, the Court of Appeal for this district held yesterday.
The club member tripped and fell while getting off a treadmill in 2016 at a Chatsworth facility, apparently as the result of her leg being caught on some metal object. She broke her hip.
Presiding Justice Maria E. Stratton of Div. Two wrote the unpublished opinion rejecting the contention of plaintiff/appellant Vida Tebbi that her waiver of liability did not extend to actions of an employee of Fitness International, LLC in taking her from one part of the gym to another without her consent. The opinion affirms a summary judgment in favor of the defendant awarded by Los Angeles Superior Court Judge Michael E. Whitaker.
Waiver Not Overcome
Stratton agreed with Whitaker that Tebbi failed to show gross negligence or an intentional tort, which would defeat the waiver she signed.
That waiver provides, in part:
“IMPORTANT: RELEASE AND WAIVER OF LIABILITY AND INDEMNITY. You hereby acknowledge and agree that use by Member… of L.A. Fitness’ facilities, services, equipment or premises, involves risks of injury to persons and property, including those described below, and Member assumes full responsibility for such risks. In consideration of Member…being permitted to enter any facility of L.A. Fitness (a “Club”) for any purpose including, but not limited to, observation, use of facilities, services or equipment, or participation in any way, Member agrees to the following: Member hereby releases and holds L.A. Fitness, its directors, officers, employees, and agents harmless from all liability to Member…for any loss or damage, and forever gives up any claim or demands therefore, on account of injury to Member’s person or property, including injury leading to the death of Member, whether caused by the active or passive negligence of L.A. Fitness or otherwise, to the fullest extent permitted by law, while Member…[is] in, upon, or about L.A. Fitness premises or using any L.A. Fitness facilities, services or equipment.”
In granting summary judgment, Whitaker explained:
“…Plaintiff has failed to demonstrate that Defendant’s employee’s actions in moving her after the fall equates to gross negligence. Such actions on the employee’s part may amount to ordinary negligence, but without more, such actions do not constitute gross negligence.”
He also ruled that Tebbi failed to show gross negligence in placing treadmills too close to each other.
Tebbi argued on appeal:
“…Defendant’s employee’s actions in moving Tebbi after her fall was un-consensual and Defendant’s employee Mario didn’t accidently move Tebbi, he intended to move her. Therefore, not only did his action constitute gross negligence, it constituted battery.”
Stratton said the “only evidence” concerning the employee’s conduct came in a response by Tebbi to an interrogatory in which she said:
“[Fitness’s] employee, ‘Mario’, moved Plaintiff after she flew off the treadmill, without her consent, from the treadmill area of the gym to the reception area, causing her injuries and pain to exacerbate.”
The presiding justice wrote:
“We would assess these facts even more critically than the trial court, which found that the employee action might amount to ordinary negligence. We find these facts do not permit any assessment of the level of care exercised by the employee, even when considered with the fact that Tebbi’s hip was subsequently discovered to have been broken in her fall.”
She added in a footnote:
“We disregard Tebbi’s statement that the movement exacerbated her injuries. As phrased, this is simply an unsupported conclusion.”
Stratton remarked that “[m]oving an injured person need not involve negligence,” observing in a footnote:
“Although not discussed by the trial court, battery requires an intent to harm or offend the victim…and there are no facts from which a trier of fact could infer such an intent on the part of an employee who has no apparent connection to Tebbi.”
She also said there was no error in finding that a triable issue did not exist as to whether placing the treadmills in close proximity to each other constituted gross negligence.
Leave to Amend
Tebbi protested in her brief that even if Whitaker “believed there needed to be more, at a minimum” to show gross negligence in moving her, she had a motion pending for leave to amend and “the Court should have granted Plaintiff an opportunity to present more by amending her complaint rather than to grant summary judgment.”
Stratton found no abuse of discretion in denying leave to amend, saying:
The trial court is referring to more evidence, not more allegations. As discussed above, because Tebbi did not allege facts showing gross negligence in her complaint, she was required to offer evidence of gross negligence to avoid summary judgment….Tebbi was able to offer some evidence about her movement by the employee, and we see nothing that would have prevented her from offering more evidence about the circumstances of her movement to show gross negligence. She chose not to do so.”
Lack of Notice
Los Angeles Superior Court Judge Stephen I. Goorvitch had been presiding in the case. The appellant argued in her opening brief:
“Tebbi was not given any notice that there was a new judge assigned to her case. She had no opportunity to exercise a preemptory challenge under Code of Civil Procedure section 170.6….Therefore, the Court lacked jurisdiction over Tebbi’s case to render a decision, the lack of notice violated Tebbi’s due process right….”
“Tebbi has not cited any legal authority to support her argument, except section 170.6, which details the procedures for challenges. She does not cite any authority to support her claim that the lack of notice resulted in a lack of jurisdiction. She does not cite any cases discussing the requirements for a due process violation in this or any context. This deficient argument alone is sufficient to forfeit this claim….
“In addition, Tebbi made no attempt to bring this issue to the attention of the trial court at any time before, during, or after the hearing at which she presumably learned of the assignment. This failure also results in a forfeiture of her claim on appeal.”
The case is Tebbi v. Fitness International, B313092.
Attorneys on appeal were Farah Faramarzi of the Mission Viejo firm of Lioness Law Group and Alice Chen Smith and Christine C. De Metruis of the Los Angeles firm of Yoka & Smith for Fitness International.
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