However, just because a plaintiff has signed a waiver doesn’t necessarily mean there is no case. Although the Florida Supreme Court just this past year strengthened liability waiver defense by holding such contracts don’t need to contain the word “negligence” or “negligent acts” to be effective, the court also ruled in general, public policy should disfavor such contracts.
That said, proving that a waiver of liability was against public policy or ambiguous is a difficult hurdle to overcome. In some instances, it may be necessary to assert defendant acted with gross negligence or intentional, willful, wanton disregard for the safety of others. These kinds of acts are not protected in liability waivers.
The recent case of Chavez v. 24 Hour Fitness wrestled with the question of whether a gym injury was the result of gross negligence on the part of the business staffers and maintenance contractors. Although a trial court had issued summary judgment favoring the fitness center, a California appeals court ruled there was a triable issue of fact as to whether the company failed to perform regular preventative maintenance on its equipment. This, if shown, could be an indicator of gross negligence.
The case was remanded for trial.
According to court records form the California Court of Appeal, Sixth Appellate District, plaintiff joined a local gym in January and as part of that agreement, signed a release of liability. She agreed the company would not be liable for any personal injuries she suffered as a result of company’s negligence.
One month later, she was injured when the back panel of a cross-trainer machine struck her in the head, causing her to sustain a traumatic brain injury.
Plaintiff thereafter suffered lapses of consciousness, sensitivity to light, stuttering, dizziness, nausea, changes in ability to taste, personality changes and severe headaches.
She sued the fitness center for ordinary and gross negligence, premises liability and strict products liability.
The products liability claim had to be dropped because the gym was not in the chain of distribution. Likewise, due to the waiver of liability, the claims of ordinary negligence and premises liability could not hold up. But the claim of gross negligence was still on the table. In order to prove this, plaintiff would have to show the gym departed from the ordinary standard of care and/or failed to to exercise scant care.
A central question in the case was whether the gym had performed regular, preventative maintenance on the equipment, which was required per product manufacturer instructions.
Although the gym presented some evidence to this point – it employed a technician to inspect the equipment monthly and employees also made rounds to check the equipment daily – the actual paper proof of this was missing. Other members testified they saw gym employees walk around and lubricate equipment or respond to complaints if they arose. However, there was no documentation that the maintenance performed on the machines occurred with any regularity.
Further, the technician would have been responsible for performing maintenance on the equipment involved in this case, and it was scheduled to occur the week of the accident. However, the chart that would have indicated the maintenance was performed was blank.
The maintenance employee no longer worked at the company, and no one could locate him to compel him to submit to a deposition.
So in other words, it was disputable whether preventative maintenance occurred, and therefore, the case should go to trial to allow jurors to decide which side was more believable.
If you have been injured in an accident, contact the Hollander Law Firm at 888-751-7777 for a free and confidential consultation. There is no fee unless we win.
Chavez v. 24 Hour Fitness , July 8, 2015, California Court of Appeal, Sixth Appellate District
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