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Jimenez v. 24 Hour Fitness USA C071959 2015 DJDAR 6334 3rd District

General presumption that fact-intensive gross negligence claims should proceed to a jury, especially where some deviation from ‘industry standard’ can be shown.

To become a member of 24 Hour Fitness USA, Inc. (24 Hour), Etelvina Jimenez signed a membership agreement that contained a liability release provision, which purported to waive 24 Hour’s potential liability “for any injury…resulting from the negligence of 24 Hour.” Subsequently, Jimenez suffered a catastrophic injury when she fell off a treadmill and hit her head on exercise equipment that was placed roughly three feet ten inches behind the treadmill. Jimenez brought suit for, among other things, gross negligence. 24 Hour successfully moved for summary judgment, though Jimenez showed evidence in the form of a manufacturer’s assembly guide for the treadmills at issue, which suggested a minimum of six feet of clearance behind each treadmill so as to ensure user safety.

Reversed. A release of future liability cannot absolve a party from liability for gross negligence; any that purport to do so “violate…public policy and [are] unenforceable.” Gross negligence, characterized by the “want of even scant care,” is largely a factual inquiry, and California courts generally hold that the question of whether a defendant’s lack of care constitutes gross negligence is a triable issue of fact. In the case of Rosencrans v. Dover Images, where a plaintiff (a motorcyclist injured during motocross practice) showed evidence that the defendant strayed from common industry standard, the Fourth Appellate District held that the plaintiff’s gross negligence claim should not be disposed of by way of summary judgment. Similarly here, Jimenez showed evidence (e.g. the manufacturer’s assembly guide) that 24 Hour may have been deviating from a standard practice of providing six feet of clearance; thus, a jury could have reasonably found this deviation to be gross negligence.

Not that we see many med mal cases, but just calling them independent contractors does not make them so: