Grebing v 24 Hour Fitness USA, Inc (2015) H&FLR 2015-21

Timothy Grebing v 24 Hour Fitness USA, Inc (2015) H&FLR 2015-21

California Court of Appeal (Second District)

29 January 2015

Coram: Kitching PJ, Lavin and Aldrich JJ

Appearing for the Plaintiff: Charles R. Grebing, Andrew A. Servais, and Dwayne H. Stein (of Wingert Grebing Brubaker & Juskie)
Appearing for the Defendant: Jack C. Nick and Robert R. Willis (of Prindle, Amaro, Goetz, Hillyard, Barnes & Reinholtz)

Catchwords: California – personal injury – faulty machine – waiver – negligence – product liability

Facts: The plaintiff was injured on 9 May 2012 while using a “low row” weight training machine at the defendant’s “24 Hour Fitness” club in La Mirada.  The clip securing the handlebar of the machine gave way, causing the plaintiff to suffer injuries to his head, back and neck.  The defendant conceded that the machine had been fitted with the wrong clip.

The plaintiff brought proceedings against the defendant for negligence, negligent products liability, strict products liability and breach of the implied warranty of merchantability.  The defendant sought and was granted summary dismissal of the proceeding based on the release signed by the plaintiff, relieving the defendant of liability for injury resulting from the negligence by it or anyone acting on its behalf: Grebing v 24 Hour Fitness USA, Inc (L.A. Co. Sup. Ct, Jessner J, 28 February 2014, unreported).  The plaintiff appealed.

Held: Per curiam, dismissing the appeal, that –

1. A release of liability for future negligence will be valid, unless it is barred by statute or is against the public interest.  The public interest is not generally considered to be impaired by releases relating to exercise facilities or recreational sport.

Tunkl v Regents of University of California (1963) 60 Cal.2d 92 and Capri v L.A. Fitness International LLC (2006) 136 Cal.App.4th 1078, followed.

2. A release of liability for future gross negligence will generally be considered unenforceable as a mater of public policy.  Gross negligence is considered to be an extreme departure from ordinary standards, or a “want of even scant care”.  The available evidence did not suggest the presence of gross negligence.

City of Santa Barbara v Superior Court (2007) 41 Cal.4th 747, followed.

3. The release covered the risk of defective maintenance or assembly of exercise equipment because this risk was reasonably related to use of the facility and equipment.

Leon v Family Fitness Center (#107), Inc. (1998) 61 Cal.App.4th 1227, followed.

4. The plaintiff’s claim based on product liability was defective.  A defendant is not liable in products liability if the dominant purpose of the transaction with the plaintiff is provision of services rather than a product, which was the case given the services supplied.

Ontiveros v 24 Hour Fitness USA Inc (2008) 169 Cal.App.4th 424


The Court’s judgment is available here.


Heather ad March 2015

Eriksson v Nunnink (2015) H&FLR 2015-10

Karan Eriksson and Stan Eriksson v Kristi Nunnink (2015) H&FLR 2015-10

California Court of Appeal (Fourth Appellate District)

27 January 2015

Coram: Richli AP; King and Miller JJ

Appearing for the Plaintiffs: Terrence L Butler (of Butler & Dodge)
Appearing for the Defendant: Garth M Drozin (of Soltman, Levitt, Flaherty & Wattles)

Catchwords: California – horse – release – waiver – wrongful death – parental consent – coach.

Facts: The plaintiffs were the parents of Mia Eriksson, a 17-year-old equestrienne who aspired to compete in eventing at an Olympic level.  In 2001 the plaintiffs retained the defendant as Mia’s coach.  In May 2006 Mia signed (and Karan Eriksson countersigned as her parent) an agreement releasing Nunnink from liability for damages aside from those caused by her “direct, willful and wanton negligence”.

On 20-22 October 2006 Mia competed in an eventing competition at Ram Tap. During the event her horse fell, suffering swelling on his chest and a concussion.  It was subsequently agreed that Mia and the same horse would compete in a competition at Galway Downs on 3-5 November 2006 (there was dispute as to precisely what events it was agreed she would compete in). Prior to competing at Galway Downs the horse was inspected by two event judges and a veterinarian and considered fit to compete.  On the second day of the competition (a cross country event) Mia’s horse refused to jump fences four times and she was disqualified.  However, she continued with the event and attempted to jump a further fence.  The horse struck the fence, causing a rotational fall in which the horse landed on its back (and on top of its rider). Mia suffered fatal injuries in the accident.

The plaintiffs sued the defendant in Riverside County Superior Court for wrongful death and negligent infliction of emotional distress.  The defendant sought and was granted summary dismissal of the plaintiffs’ claim (1).  This dismissal was reversed on appeal and the matter remitted for trial (2). At trial, the proceeding was dismissed after presentation of the plaintiff’s case and without hearing from the defendant (3).  The plaintiffs appealed.

Held: Dismissing the appeal, that –

1. Because Karan had signed the release as Mia’s parent, it became final and binding and could not be disaffirmed.  Karan did not, however, thereby become a party to the release or bound by the promises made by Mia in it.

Hohe v San Diego Unified School District (1990) 224 Cal.App.3d 1559; Aaris v Las Virgenes Unified School District (1998) 64 Cal.App.4th 1112, followed.
Daniels v Sunrise Senior Living Inc (2013) 212 Cal.App.4th 674, considered.

2. The release did, however, curtail the plaintiffs’ rights.  Although wrongful death claims do not derive from the deceased’s putatively-infringed rights and are an independent cause of action, the plaintiff in such a case is bound by the deceased’s agreement to waive the defendant’s negligence and assume the risk.  The relevant duty of care in such a case is that owed by the defendant to the deceased; this duty can be limited or eliminated by the deceased’s signing a release.  A defendant cannot owe a greater duty to a person bringing a wrongful death claim than was owed to the deceased.

Ruiz v Podolsky (2010) 50 Cal.4th 838; Horwich v Superior Court (1999) 21 Cal.4th 272, followed.
Coates v Newhall Land & Farming Inc (1987) 191 Cal.App.3d 1, considered

3. The claim for negligent infliction of emotional distress failed on a similar basis to the claim for wrongful death: the release removed the defendant’s duty of ordinary care toward the deceased and as a corollary also removed the defendant’s duty to protect her parents from the risk of the emotional distress.  A defendant is able to assert the same defences against claims by bystanders (the position of the plaintiffs) as the defendant could assert against the direct victim, including signing of a release.

Dillon v Legg (1968) 68 Cal.2d 728

4. Once the defendant had shown that the release was applicable, the burden was on the plaintiffs to show that the defendant had been grossly negligent.  The plaintiffs’ own evidence did not establish that the defendant had acted with either gross negligence or willful and wanton negligence.


The court’s judgment is available here.

Note: The plaintiffs’ determination to pursue this matter more understandable when one notes that they had previously sued unsuccessfully for the death of another daughter in a separate riding accident (4). It is difficult to imagine a worse set of tragedies for a parent.
(1) Eriksson v Nunnink [2011] Metropolitan News-Enterprise, 11 January 2011, at 1.
(2) Eriksson v Nunnink (2011) 191 Cal.App.4th 826
(3) Eriksson v Del Mar Eventing Inc (2012) Chronicle of the Horse, 1 February 2012.
(4) Eriksson v California State University Fresno (5th Dist. Ct App. Calif., Wiseman APJ, Levy and Gomes JJ, 25 September 2007, unreported)



Bagley v Mt Bachelor Inc (2014) H&FLR 2015-4

Myles A. Bagley and Ors v Mt Bachelor Inc and ors (2014) H&FLR 2015-4

Supreme Court of Oregon

18 December 2014

Coram: Court en banc

Appearing for the Plaintiff: Arthur C Johnson (of Johnson Johnson & Schaller) and Kathryn H. Clarke.
Appearing for the Defendant: Arthur C. Balyeat (of Balyeat & Eager)
Appearing for the Oregon Association of Defence Counsel (amicus curiae): Michael J. Estok (of Lindsay Hart)
Appearing for the Oregon Trial Lawyers Association (amicus curiae): Kristian Roggendorf (of Roggendorf Law)

Catchwords: Oregon – skiing – injuries – liability – release – waiver – public policy – unconscionability.

Facts: The plaintiff was an experienced snowboarder. On 29 September 2005 he purchased a season pass from the defendant for use at its ski area. Purchase of the pass involved signing an extensive prospective release of liability, of which he was reminded while on site by wording on his pass and by signs. On 19 February 2006 the plaintiff sustained very serious injuries while going over a snowboard jump, allegedly because it had been negligently designed, constructed and maintained by the defendant.

The plaintiff brought proceedings against the defendant in Deschutes County Circuit Court, which were summarily dismissed based on the release signed by the plaintiff: Bagley v Mt Bachelor Inc (2010) The Bulletin, 6 September 2013. The plaintiff’s appeal to the Court of Appeals was dismissed: Bagley v Mt Bachelor Inc, 258 Or. App. 390, 310 P.3d 692 (2013). The plaintiff further appealed to the Supreme Court.

Held: allowing the appeal, that –

1. (a) The Courts will not enforce contracts which are illegal. An agreement will be illegal if it is (inter alia) contrary to public policy as expressed in constitutional provisions, statute or case law, or if it is unconscionable.

Uhlmann v Kin Daw, 97 Or. 681, 193 P. 435 (1920); Delaney v Taco Time International Inc, 297 Or. 10, 681 P.2d 114 (1984), followed.

(b) Quaere whether the concepts of public policy and unconscionability are separable.

2. A contract may be unconscionable on procedural or substantive grounds.

(a) Procedural unconscionability considers whether there was oppression or surprise when the contract was formed.  Oppression will exist when there is such an inequality of bargaining power between the parties that there is no real opportunity to negotiate the terms of the contract and there is no meaningful choice.  Suprise occurs when the terms are hidden or obscured (for example, by being in fine print or ambiguously worded) from the perspective of the party claiming unconscionability

Vasquez-Lopez v Beneficial Oregon Inc, 210 Or. App. 553, 152 P.3d 940 (2007); Acorn v Household International Inc, 211 F. Supp. 2d 1160 (ND Cal., 2002), followed

(b) Substantive unconscionability considers whether the terms of the contract contravene public interest or public policy.  It will be necessary for the court to consider whether enforcing the release will cause a harsh or inequitable result, whether the party claiming the benefit of the release serves an important public function, and whether the release absolved the releasee from more than ordinary negligence.

Commerce & Industry Insurance v Orth, 254 Or. 226, 458 P.2d 926 (1969); Estey v MacKenzie Engineering Inc, 324 Or. 372, 927 P.2d 86 (1996); Real Good Food v First National Bank, 276 Or. 1057, 557 P.2d 654 (1976), followed

(c) The factors listed as relevant to unconscionability are not exclusive, and no single factor is critical.  The determination that a release breaches public policy or is unconscionable reflects the totality of the circumstances as well as any other factor (including societal expectations).


The Court’s judgement is available here.

Honeycutt v Meridian Sports Club LLC (2014) H&FLR 2014-64

Tanya Honeycutt v Meridian Sports Club LLC (2014) H&FLR 2014-64

California Court of Appeal (Second Appellate District)

21 October 2014

Coram: Mosk PJ, Kriegler and Goodman JJ

Appearing for the Plaintiff: Marilyn H. Nelson and Abram Charles Zukor (of Zukor & Nelson)
Appearing for the Defendant: Anthony J Ellrod and Ladell Hulet Muhlestein (of Manning & Kass, Ellrod, Ramirez, Trester)

Catchwords: California – negligence – kickboxing – assumption of risk – waiver – instructor – inherent risk

Facts: The plaintiff attended a kickboxing class at the defendant’s premises taught by instructor Hakeem Alexander.  Before the class the plaintiff signed an assumption of risk agreement and waiver of liability for injury. While assisting the plaintiff to perform properly a roundhouse kick, Alexander grabbed her right ankle between the ankle and knee and instructed her to ‘rotate’ without providing further direction.  She rotated her left knee, suffering a significant knee injury.

The plaintiff sought compensation for personal injury caused by negligence and gross negligence.  The trial court granted the defendant’s application for summary judgment based on the waiver signed by the plaintiff: Honeycutt v Meridian Sports Club LLC (Los Angeles County Superior Court, Cotton J, 7 January 2014, unreported). The plaintiff appealed.

Held: Dismissing the appeal, that –

1.  Primary assumption of risk arises when a defendant owes no duty to protect a plaintiff from a particular harm. It precludes liability for injuries arising from risks inherent in a sport.

Avila v Citrus Community College District (2006) 38 Cal.4th 148, followed.

2.  Coaches and instructors have a duty not to increase the risks inherent in sports participation, and breach their duty of care to a student or athlete if they intentionally injure the athlete or engage in conduct that is ‘reckless’ (that is, wholly outside the range of the ordinary activity involved in teaching or coaching the sport.

Kahn v East Side Union High School District (2003) 31 Cal.4th 990, followed.

3.  Injuries to shoulders, hands and knees are inherent risks in a vigourous physical activity like kickboxing.  In this case the plaintiff’s injury was squarely within the doctrine of primary assumption of risk.  The coaches actions did not increase the inherent risks.

4.  Gross negligence (which if found would avoid the waiver) is a “want of even scant care” or “an extreme departure from the ordinary standard of conduct”. That another instructor would have acted differently is not evidence of cross negligence

City of Santa Barbara v Superior Court (2007) 41 Cal.4th 747, followed.
Decker v City of Imperial Beach (1989) 209 Cal.App.3d 349, considered.


The Court’s judgment is available here.

Naser v Lakeridge Athletic Club (2014) H&FLR 2014-38

Zahra Naser v Lakeridge Athletic Club (2014) H&FLR 2014-38

Court of Appeal of California (First Appellate District)

27 June 2014

Coram: Jones PJ, Bruiniers and Simons JJ.

Appearing for the Plaintiff: Michael R Loewen and Noah Freeman Schwinghammer (of Law Office of Michael R Loewen)
Appearing for the Defendant: Joseph J. Minioza, Jason W Mauck and Gregory A. Mase (of Ericksen Arbuthnot)

Catchwords: California – health clubs – release – waiver – locker room – wet floor – slip – injury

Facts: The plaintiff was a member of the Lakeridge Athletic Club in El Sobrante. On joining in February 2004 she signed a membership agreement which included a release waiving any claim against the club in respect of injury caused by its negligence. The release relevantly stated –

The Member is fully aware of the potential dangers incidental in engaging in the activity and instruction of exercise activities (such as weight lifting, bodybuilding, aerobic dancing, and any other exercise activity). In consideration of permitting this member to join this Club or to participate in exercise activity and/or instruction at these premises (including the entire indoor area and outdoor parking area), the Member agrees to voluntarily assume all liability and to indemnify [Lakeridge] for any death, injury, or damage suffered by any person, including the Member, arising out of the Member’s activities at [Lakeridge] even if death, injury, or damage is caused by [Lakeridge’s] own passive or active negligence.

On 26 January 2009 the plaintiff attended the club and used the facilities. She returned to the locker room and while there she slipped in a puddle of water, suffering a knee injury.

The plaintiff brought proceedings against the club in negligence. The Defendant sought summary dismissal of the claim on the basis that the plaintiff, by signing the membership agreement, had voluntarily assumed all liability for injury. The plaintiff responded (inter alia) that the release did not apply because her injury was not exercise-related. The application for dismissal was granted: Naser v Lakeridge Athletic Club (Superior Court of Contra Costa County, Austin J, 21 February 2013, unreported). The plaintiff appealed.

Held: Dismissing the appeal, that –

1. The release expressly provided that it was in “consideration of permitting the member to join this Club or to participate in exercise activity and/or instruction at these premises (including the entire indoor area and outdoor parking area)”. The plaintiff’s use of the locker room was covered by the release.

2. In this case, it was proper to find that slipping on a wet locker room floor was reasonably related to the purposes of the release. Semble, slipping in a wet locker room is a hazard known to relate to use of a health club for exercise.

Leon v Family Fitness Center (#107), Inc (1998) 61 Cal.App.4th 1227, considered.


The Court’s judgment is available here.

Ghane v Mid-South Institute of Self Defence Shooting Inc (2014) H&FLR 2014-11

Ghane and Ors v Mid-South Institute of Self Defence Shooting Inc and Ors (2014) H&FLR 2014-11 *

Supreme Court of Mississippi

16 January 2014

Coram: Waller CJ, Dickinson and Randolph PJJ, Kitchens, Pierce, King, Chandler, Coleman and Lamar JJ

Appearing for the Appellant: Benjamin Louis Taylor (of Taylor Jones & Taylor)
Appearing for the Respondent: Jay Marshall Atkins, Thomas P. Cassidy Jr (of Arnall Golden Gregory), Jeffrey E. Nicoson ( of Leitner, Williams, Dooley & Napolitan, PLLC), and Robert Q. Whitwell**.

Catchwords: Mississippi – firearm – live-fire training – Navy – accidental shooting – bulletproof wall – non-justiciable – political question – waiver – order

Facts: The defendants constructed and operated a live-fire training facility which the Navy frequently hired in order to conduct training. On 30 January 2008 during such a training exercise, a shot passed through a wall which was purportedly bulletproof, striking and killing a member of the naval team. The deceased’s survivors sought compensation from the defendants, but raised no claim against the Navy. Among the defences raised was comparative fault by the US Navy and personnel and the fact that the deceased had signed a general waiver in favour of the defendants.

It was not disputed that the law of Mississippi applied.

The defendants sought and were granted dismissal of the proceedings in the trial court on the grounds that the claim raised non-justiciable political questions relating to military training decisions and strategies. The plaintiffs appealed.

Held: By Randolph PJ, Kitchens, Pierce, King and Chandler JJ, allowing the appeal –

(1) The presence of any of six factors indicates a non-justifiable political question. The factors are (a) a clear constitutional commitment of an issue to the legislature or the executive; (b) absence of judicial standards for resolving the issue; (c) an inability to decide the issue without first making a policy decision of a non-judicial type; (d) an inability to decide the issue without manifesting disrespect for the legislature or executive; (e) an unusual need for adherence to a political decision which had been made and (f) the risk of embarrassment flowing from multiple pronouncements on one matter.

Baker v Carr, 369 US 217 (1962), followed.

(2) The mere involvement of the military in a case would not create a political question. For a private contractor to raise the political question defence it must establish that the plaintiff’s case requires examination of a military decision and that that decision is not able to be reviewed by the Court.

Carmichael v Kellog, Brown & Root Services Inc., 572 F.3d 1271 (11th Cir. 2009), followed.
McMahon v Presidential Airways Inc., 502 F. 3d 1331 (11th Cir. 2007), applied.

(3) Broad, general waivers of negligence are to be construed strictly against the defendant asserting them.

Turnbough v Ladner, 754 So.2d 467 (Miss. 1999), applied.

(4) Quaere, whether a waiver applies to a person who undertakes the activity to which the waiver applies pursuant to binding orders.

By Dickinson PJ, that the appeal should be allowed because there was insufficient evidence as to whether a political question was in fact raised by the case.

By Waller CJ, Coleman and Lamar JJ (dissenting), that the appeal should be dismissed. The defendant’s decision to raise defences of causation and the Navy’s comparative negligence. This would require a jury to apportion fault between the Navy and the defendants and this would require military decision to be reviewed, presenting a non-justifiable issue.


The Court’s judgment is available here.


* This judgment is on the border of area of ‘health and fitness law’. It is included on the grounds that the political question defence may apply to some types of high level sport (for example, national or quasi-national teams or publicly funded teams and competitions) and because of the potential relevance of the waiver issue.

**  Since appointed to the bench.