Defeating MSJ brought by spas, gyms and other health-studio defendants

A look at the common defenses of signed releases, waivers of liability, assumption of the risk, and lack-of-notice

2016 May

Relying upon standard releases and liability waivers, spa and health-studio facility defendants regularly assume that they will escape all potential liability for personal injuries caused by dangerous conditions of their premises or equipment. But we were recently successful in asserting several theories to invalidate a purportedly iron-clad release and waiver, thereby defeating a motion for summary judgment and ultimately leading to a satisfactory settlement.

Spa and health-studio facility defendants regularly seek to insulate themselves from all liability for a guest’s or member’s injuries on several grounds: First, they claim that the injured victim signed a guest registration or membership contract that released them from all liability; second, they claim that the injured victim contractually assumed the risk of their particular injury; and third, they claim that the injured victim voluntarily assumed the risk under the doctrine of primary assumption of the risk.

With respect to the signed release, it is often overlooked and therefore not pled in the complaint that, under controlling California law, a signed guest registration or membership contract containing a release is invalid unless the facility provided the injured victim with a copy of the contract at the time it was signed. The failure to do so is a violation of Civil Code section 1812.82, and renders the release of liability unenforceable as a matter of public policy under Civil Code section 1812.91. Therefore, the first question to ask an injured victim is whether he or she was required to sign such a contract, and if so, was a copy provided to them at that time? If not, then a violation of Civil Code section1812.82 should be pled as a separate cause of action.

If a copy was provided, the release will not be effective to release the facility for gross negligence or for statutory or regulatory violations. (City of Santa Barbara v. Superior Court (Janeway) (2007) 41 Cal.4th 747; Cal. Civ. Code, § 1668; Capri v. L.A. Fitness Intern., LLC (2006) 136 Cal.App.4th 1078.) Thus, investigation and discovery should focus from day one on developing proof of a course of misconduct on the part of the facility defendant that evidences both an extreme departure from the ordinary standard of care and conduct, and violation(s) of applicable statutes, safety codes, or regulations. Allegations supporting gross negligence are generally not pled in a separate cause of action, but are included in the general negligence cause of action. But alleged statutory or regulatory violations should be pled as a separate cause of action in the complaint.

With respect to contractual assumption of the risk, an injured victim cannot be found to have contractually assumed a risk of harm based upon a release that is unenforceable as violative of public policy. (Allan v. Snow Summit, Inc. (1996) 51 Cal.App.4th 1358, 1372.) Thus, if the allegations and proof create triable issues of material fact as to whether the spa and health-studio defendant either violated Civil Code section 1812.82, or the release is being asserted as a complete defense in the presence of allegations of gross negligence or statutory or regulatory violations, its release cannot be found to be enforceable, as a matter of law, on a summary judgment motion.

And as to primary assumption of the risk, it does not apply to a risk that is neither inherent in the activity at issue, nor to an enhanced risk of harm, over and above that which would reasonably and normally be expected to be encountered in engaging in such activity. (Zipusch v. LA Workout (2007) 155 Cal.App.3th 1281.) Thus, it is important to develop the evidence, with a competent liability expert, demonstrating the presence of a risk of harm that is either not considered to be inherent in the activity in which the injured victim was engaged, or that was different in degree and severity from that which is normally expected.

Failure to provide a copy of the contract with the release at the time of signing

Health-studio services in California are governed by the Health Studio Act. (Civ. Code, §§ 1812.80, et seq.)

Section 1812.81 provides in pertinent part:

As used in this title, ‘contract for health studio services’ means a contract for . . . the use by an individual patron of the facilities of a health studio, gymnasium or other facility used for [the purposes of instruction, training or assistance in physical culture, body building, exercising, reducing, figure development, or any other such physical skill]. . ..

Section 1812.82 provides:

Every contract for health studio services shall be in writing and shall be subject to the provisions of this title. A copy of the written contract shall be given to the customer at the time he signs the contract.

Section 1812.91 provides:

Any contract for health studio services which does not comply with the applicable provisions of this title shall be void and unenforceable as contrary to public policy.

It is often undisputed that the defendant is a health club and spa facility, providing health-studio services. It is also often undisputed that the injured guest or member was required to sign a contract or agreement in order to enter and to use the defendant’s health studio/club and spa premises and to use health-studio services that the defendant provides. The typical release in such a contract/agreement provides language similar to the following:

WAIVER OF LIABILITY: The undersigned understands and agrees that during the visit to and in attending said [Health Spa and Gym Studio] and using the facilities and equipment therein and thereon does so at his/her own risk and, knowingly and freely assumes all such risks, both known and unknown, even if arising from the negligence of others and assumes full responsibility for his/her participation. [Health Spa and Gym Studio] shall not be held responsible or liable for any and all injury to person, disability, death of damages or loss of property suffered by any guest during any visit to [Health Spa and Gym Studio] for any reason, whether using the sport facilities and equipment or not. The undersigned hereby releases [Health Spa and Gym Studio], and their officers, agents and employees from every claim, liability or damage of any kind or on account of any and all personal injury or damages.

And, we have found that it is also often undisputed that as to at least guest registration contracts or agreements, it is neither the custom nor practice to provide the guest with a copy at the time of signing. In such a case, where the injured individual was not yet a member, but just a visitor using a guest pass and required to sign a guest registration agreement, the spa and health-studio defendant may argue that section 1812.82 is only applicable where “fees are charged,” and does not apply to a contract arising out of an injured victim’s acceptance of a “complimentary guest pass.”  This contention is irreconcilable with the plain language of the statute. In a case we handled, the court explained that section 1821.81 applies not only to contracts involving “membership,” but also “use by an individual patron of the facilities of a health studio, gymnasium or other facility.” Thus, the relevant provisions of the Civil Code require that a copy of the guest registration agreement be provided to plaintiff at the time of signing, or the waiver is unenforceable.

Furthermore, there is often nothing “complimentary” or gratuitous about a “guest pass.” When a guest uses the facility there is bargained-for consideration. The guest obtains access to the facility, and the facility gets access to the guests’ personal information for marketing purposes. We have successfully asserted that this bargain implicates the very types of practices that section1812.80 is intended to “safeguard the public against.”

Thus, in violation of the clear language of the statute, a release of liability is unenforceable when the injured victim was not offered, or provided with, a copy of the guest registration or membership contract/agreement containing the release at the time that it was signed.

When a release does not extend to gross negligence

Gross negligence has been defined as ‘the exercise of so slight a degree of care as to raise a presumption of conscious indifference to the consequences’ and as ‘the “want of even scant care or an extreme departure from the ordinary standard of conduct. . . .

[T]he difference between negligence and gross negligence is a matter of degree, not a matter of kind.” (2 Cal. Affirmative Defenses 2nd Ed. (2014) § 48:23.)

According to 46 Cal.Jur.3d “Negligence” § 102:

‘Gross negligence’ has been defined as a want of slight care or diligence, as an extreme departure from the ordinary standard of conduct, as an entire failure to exercise care, as the exercise of so slight a degree of care as to justify the belief that there was an indifference to the interest and welfare of others, and as that want of care that raises a presumption of conscious indifference to consequences.

As echoed in the jury instruction, CACI 425: “ Gross negligence is the lack of any care or an extreme departure from what a reasonably careful person would do in the same situation to prevent harm to oneself or to others.” (See also, Janeway, supra, 41 Cal.4th 747, 754 [gross negligence can be found to be “either a want of scant care, or an extreme departure from the ordinary standard of conduct”].) Generally, but not always, it is a triable issue of fact for jury determination whether there has been “such a lack of care as to constitute gross negligence.” (Decker v. City of Imperial Beach (1989) 209 Cal.App.3d 349, 358.)

In the context of sports, recreational programs, and providing health-club and fitness services, the California Supreme Court holds that a waiver agreement is not enforceable to release liability for future gross negligence. (Janeway, supra, 41 Cal.4th 747, 751; see also Eriksson v. Nunnink (2011) 191 Cal.App.4th 826 [triable issues as to the presence of gross negligence existed, which would be outside the scope of the release]; Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072 [triable issues of fact existed as to whether conduct was extremely egregious, which would be outside the scope of the release].) As the Court explained in Janeway, “we conclude that public policy generally precludes enforcement of an agreement that would remove an obligation to adhere to even a minimal standard of care.” (41 Cal.4th at 777.) In reaching this conclusion, the Court flatly rejected the position of amicus curiae Bally Total Fitness, and its “prediction of calamity in the health club industry if releases of liability for future gross negligence are not enforced.” (Id. at 775.)

A release does not extend to statutory or regulatory violations

Public policy in California precludes exculpatory agreements that purport to relieve a party from liability for a violation of statutory law, code, or regulation. This rule is codified in Cal. Civ. Code, § 1668, which provides:

All contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law.

Thus, a party cannot contract away its liability for a violation of statutory law and regulation. In Capri v. L.A. Fitness Intern., LLC, 136 Cal.App.4th 1078, the plaintiff slipped and fell on the club’s pool deck, and he found an accumulation of algae and other growths around a deck drain in the area where he fell. In one of his causes of action, plaintiff alleged negligence per se, claiming that the defendant fitness club’s violation of Health and Safety Code sections 116040 and 116043, which govern standards for swimming-pool safety and sanitation, and proper swimming-pool maintenance, was a legal cause of his slip and fall. The trial court granted summary judgment based upon a release and waiver of liability signed by the plaintiff.

The appellate court reversed on the claim for negligence per se:

Appellant has alleged that respondent violated sections 116040 and 116043 . . . and that this violation of law was the cause of his slip and fall. As such, it falls squarely within the explicit prohibition in section 1668 against contractual exculpation for a ‘violation of law’ and is invalid. The trial court erred in finding this cause of action was barred by the release and waiver.

(Id. at 1085.)

Evidence Code section 669 codifies the doctrine of negligence per se. Section 669, subdivision (a) provides that the defendant’s negligence will be presumed where it: (1) violated a statute or regulation; (2) the violation was a legal cause of the plaintiff’s injury; (3) the plaintiff’s injury resulted from an occurrence of the nature that the statute or regulation was designed to protect against; and (4) the plaintiff was in one of the classes of persons for whose protection the statute or regulation was adopted. And subdivision (b) goes on to provide that this presumption can be rebutted by the defendant’s proof they “did what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law[.]”

Many courts recognize that negligence per se is not a stand-alone cause of action, and generally the determination of whether plaintiff is entitled to a favorable jury instruction patterned on Evidence Code section 669 is to be determined at the time of trial.

Similar to the statutes at issue in the Capri case, for example, a number of Cal. Building Code sections are part of a “detailed regulatory scheme which includes construction standards, safety standards, and sanitation requirements” (Capri, supra, 136 Cal.App.4th 1085) for the construction and maintenance of structural buildings in this State. In our case, in opposition to the motion for summary judgment and supported by an expert declaration, we asserted defendants’ violation of Building Code section 3401.2, which provides in pertinent part:

Maintenance. Buildings and structures, and parts thereof, shall be maintained in a safe and sanitary condition. * * * The owner or the owner’s designated agent shall be responsible for the maintenance of buildings and structures. * * *

Contracts that violate public policy are unenforceable

A contract that is unenforceable because it violates public policy cannot form the basis for a contractual assumption of risk:

So long as the express agreement to assume the risk does not violate public policy, it will be upheld and will constitute a complete bar to a negligence cause of action.” (Allan, 51 Cal.App.4th at 1372.) But when the guest registration or membership contract or agreement and its purported assumption of the risk provision do “violate public policy,” it will not be “upheld” or “constitute a complete bar.” (Ibid.)

As explained above, a guest registration or membership contract or agreement that contravenes the mandatory requirements of Civil Code section 1812.82, is void and contrary to public policy under Civil Code section 1812.91. Such a contract or agreement will also be unenforceable, and in violation of public policy, to the extent that the defendant seeks to use it to relieve itself of liability for its gross negligence. (Janeway, 41 Cal.4th 747, 751; Eriksson, 191 Cal.App.4th 826; Rosencrans, 192 Cal.App.4th 1072.) Likewise, a contract or agreement will be unenforceable and in violation of public policy to the extent that the defendant seeks to use it to relieve itself of liability for statutory or regulatory violations.

Risks not inherent in the activity

Absent an enforceable release, an injured victim does not assume a risk that is not inherent in the activity, or where the defendant increased the risk of harm.

In Zipusch, 155 Cal.App.3th 1281, 1291-1292, the plaintiff’s claims were based on a claim that the defendant had negligently inspected and maintained the equipment on which he was injured. The court held that, generally, “defective or unnecessarily dangerous equipment is not considered an inherent risk of a sport. This is entirely sensible. The main concern animating inherent risk analysis is the potential for chilling vigorous participation and altering the fundamental nature of a particular sport. However, these conditions are not present in lawsuits alleging defective or unnecessarily dangerous equipment where the issue is whether the defendant increased the risk above the inherent risk of the sport.”

Accordingly, the court held that a claim that a health club negligently inspected and maintained its exercise equipment, allowing a risk to remain for an unreasonable amount of time, was not an inherent risk of exercising at a health club. Hence, the doctrine of primary assumption of the risk did not bar the plaintiff’s claims.

Putting it all together

Now, let’s apply Zipusch, put it all together, and negate the defense of lack of actual or constructive notice in order to defeat summary judgment.

We successfully argued that the reasoning and holding of Zipusch applied with equal force to the dangerous condition of a wet, slippery tile floor surface in the women’s locker room. We also defeated the defense of lack of notice by demonstrating that it was not a “transitory condition,” but rather a chronic, ongoing, perpetually hazardous condition of defendants’ own creation, of which they had actual and constructive knowledge.

The defendants maintained their alleged lack of notice of the existence of the wet, slippery condition that was in existence at the very time and place that our client was caused to slip and fall, by attempting to mischaracterize it as a transient, temporary, or short-term one. But we were able to demonstrate that the area of exposed tile where our client fell was known to be constantly wet as a result of regular in-and-out usage of the jacuzzi, steam room, and sauna, and from condensation from the steam room itself, and thus that it was in an on-going, constantly slippery condition that required constant efforts to try to abate by keeping the exposed tile floor as clean and dry as possible at all times during regular business hours.

With the evidence, we successfully argued that defendants’ course of misconduct demonstrated an extreme departure from the ordinary standard of conduct, and their maintenance of the subject portion of its premises in an unsafe and unsanitary condition increased the risk of harm over and beyond that which plaintiff could reasonably expect to confront as a guest using the spa and health-studio facility.