Torts – Assumption of the Risk – Waiver of Liability

by Low, Ball & Lynch

Kirk Anderson v. Fitness International, LLC

Court of Appeal, Second District (October 27, 2016)

The general rule in California is that all persons are responsible “for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property . . . .” (Civ. Code, § 1714, subd. (a).) However, parties may contract for the release of liability for future ordinary negligence so long as such contracts do not violate public policy. This case considered whether a waiver of liability in a health club contract could successfully be used against claims that the club’s shower roof floors were unsafe.

Kirk Anderson (“Anderson”) joined the L.A. Fitness health club in Glendale in December of 2011. The membership agreement he signed contained a “release and waiver of liability and indemnity” against “any loss or damage…on account of injury to Member’s person or property . . . whether caused by the active or passive negligence of L.A. Fitness or otherwise . . . while member is in, upon or about L.A. Fitness premises or using any L.A. Fitness facilities, services or equipment . . .”

Subsequently, in September of 2012, after completing his exercises, Anderson went into the large shower room, wearing shower sandals and carrying his soap in one hand. As he moved toward one of the shower nozzles, his left foot slipped, and he began to fall. When he hit the floor, his humerus snapped in two. One of the fitness instructors called 911, and Anderson was taken to the hospital. He underwent surgery to repair his humerus with a plate and screws.

Anderson filed suit against L.A. Fitness, alleging one cause of action for negligence. He alleged that L.A. Fitness recklessly and negligently maintained a shower room at its facility that caused his injury, that the tile floor has sharply downward slanting slopes towards two drains in the center of the shower room, and that the tile floor was routinely layered and covered with body oils, soap, shampoo, and conditioner residue. Anderson further alleged that L.A. Fitness knew or should have known of the dangerous conditions, in part, because he had repeatedly complained to L.A. Fitness’ employees on at least two prior occasions when he had fallen without injury. He alleged L.A. Fitness’ conduct constituted gross negligence, and was “an extreme departure from the ordinary standard of care. Because these latter allegations were conclusory, the Court granted L.A. Fitness’ motion to strike references to “gross negligence,” but did so with leave to amend should discovery in the case warrant it.

Meanwhile, L.A. Fitness moved for summary judgment, asserting that the release and waiver of liability in the Membership Agreement barred any and all claims against L.A. Fitness. Anderson opposed the motion, arguing that even with the granting of the motion to strike, the evidence was sufficient to raise a triable issue of material fact as to whether the club’s acts and omissions constituted gross negligence. The trial court granted the motion for summary judgment, noting that the release clearly barred any claims for “ordinary negligence,” and that plaintiff had not pled in its complaint nor articulated in its opposition to the motion for summary judgment any facts that would support a finding of gross negligence. The trial court held that the complaint was premised entirely on the contention that Anderson and others had previously slipped in the shower area and had asked L.A. Fitness to make the area more slip-resistant, but that it had failed to do so. The court said there was no case law showing such action to be gross negligence. Anderson appealed.

The Court of Appeal affirmed, concluding no triable issue of material fact existed to preclude summary judgment.

First, the Court confirmed that Anderson as the plaintiff bore the burden to produce evidence creating a triable issue of fact on gross negligence. If a complaint alleges facts demonstrating gross negligence in anticipation of a waiver or release, it is then the moving defendant’s burden of refuting the allegations constituting gross negligence.

The Court held that Anderson had failed to alleged sufficient facts to support a theory of gross negligence. Ordinary negligence “consists of the failure to exercise the degree of care in a given situation that a reasonable person under similar circumstances would employ to protect others from harm.” Mere nonfeasance, such as the failure to discover a dangerous condition or to perform a duty, amounts to ordinary negligence. To support a theory of gross negligence to overcome a waiver of liability, a plaintiff must allege facts showing either a want of even scant care or an extreme departure from the ordinary standard of conduct. Thus, in cases involving a waiver of liability for future negligence, courts have held that conduct that substantially or unreasonably increased the inherent risk of an activity or actively concealed a known risk could amount to gross negligence, which would not be barred by a release agreement.

In this case, although Anderson alleged that the tile floor in the shower room was routinely covered in oily and soapy residue, he did not allege facts to show its condition was an “extreme departure” from conditions one would expect in a health club shower facility. Nor could he allege the risk in using the shower facility was unknown to him, given his prior falls and his execution of the Release. Similarly, he failed to allege facts to show L.A. Fitness’ maintenance of the shower room constituted an extreme departure from safety standards or that L.A. Fitness somehow concealed a known dangerous condition. Collectively, Anderson’s allegations demonstrated, at best, that L.A. Fitness failed to mitigate, guard against, or warn of a dangerous condition, which is insufficient to support a theory of gross negligence, as opposed to ordinary negligence.

Summary judgment in favor of L.A. Fitness was affirmed.


This case serves as a reminder that to overcome a release or waiver of liability, a plaintiff needs to allege (by more than just general conclusions) that the defendants’ actions represented an “extreme departure” from conditions one would normally expect with regard to such an activity or facility. Unless plaintiff can do so, and shift the burden of negating those allegations to the defendant, summary judgment will generally be available based on such a written waiver of liability.

For a copy of the complete decision, see: Anderson v Fitness Intl.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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