This article appeared in the January/February issue of Athletic Business. Athletic Business is a free magazine for professionals in the athletic, fitness and recreation industry. Click here to subscribe.
As an express assumption of risk, courts have generally ruled that waivers are a valid defense against negligence. As with all assumption of risk, however, the party wishing to use the waiver as a defense must show: 1) that the other party knew of the risks; and 2) that the other party voluntarily assumed the risks. Generally this is not a problem when dealing with waivers, because the risks are expressly identified and the signing party is voluntarily consenting to assume those risks.
But what happens when the person signing the waiver does not understand what he or she is signing? That was the question before the court in Jimenez v. 24 Hour Fitness USA, INC., 237 Cal. App. 4th 546 (2015).
A QUESTIONS OF GROSS NEGLIGENCE
On the day Etelvina Jimenez joined 24 Hour Fitness, she was directed to membership manager Justin Wilbourn, and was then required to sign a membership agreement. However, Jimenez could neither read nor speak English, and Wilbourn did not speak Spanish. Nevertheless, Wilbourn did not call a Spanish-speaking employee to help him translate. Instead, he pointed to a figure on his computer screen — $24.99 — indicating the membership fee, and made pumping motions with his arms as though he was exercising. Jimenez understood the numbers and she understood Wilbourn's physical gestures to mean that if she paid that amount, she could use the facility. Wilbourn then pointed to the lines in the agreement for Jimenez to sign. Jimenez claimed that Wilbourn did not point out the release to her or make any other indications about the scope of the agreement aside from his gestures mimicking exercise and pointing to the fee. Jimenez believed she signed an agreement only to pay the monthly fee of $24.99.
Jimenez had been a member of 24 Hour Fitness for about two years and exercised regularly several times a week when she fell backward off a moving treadmill while exercising one day. She sustained sever injuries when her head hit the exposed steel of a leg-exercise machine. As a result of her injuries, Jimenez sued 24 Hour Fitness for negligence in failing to provide a safe environment.
The distance from the treadmill's running belt to the closest piece of equipment was three feet, 10 inches. However, in the "Treadmill Safety Features" section of the owner's manual, the manufacturer recommended the minimum space requirement needed for user safety and proper maintenance be three feet wide by six feet deep directly behind the running belt.
24 Hour Fitness maintained that Jimenez's claim was barred by the release. Jimenez, however, argued that the release was invalid because 24 Hour Fitness was grossly negligent. Moreover, because 24 Hour Fitness obtained Jimenez's signature on the release through fraud, the release was ineffective.
The trial court held that Jimenez failed to present any evidence that Wilbourn made any affirmative representations that led Jimenez to believe she was signing something other than what the agreement, on its face, purported to be. The court further held that the fact that Jimenez elected to sign the agreement without understanding all of its terms cannot be considered the fault of 24 Hour Fitness. With respect to gross negligence, the court was persuaded by the argument presented by 24 Hour Fitness that a space of three to four feet — as opposed to the recommended six-foot safety zone — cannot constitute gross negligence, because it does not reflect an extreme departure from the ordinary standard of conduct.
On appeal to the Court of Appeal of California, Third Appellate District, Jimenez contended that there were triable issues of fact regarding the question of whether the conduct of 24 Hour Fitness constituted gross negligence, which would preclude the company's reliance on the release to absolve it from liability. In ruling in favor of Jimenez, the court held that while often referred to as a defense, a release of future liability is more appropriately characterized as an express assumption of the risk. Such an agreement, the court held, cannot absolve a party from liability for gross negligence, but rather ordinary negligence only. Therefore, the court held that it must determine whether the conduct constituted gross negligence.
Ordinary negligence consists of a 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. Gross negligence, on the other hand, is defined as an extreme departure from the ordinary standard of conduct.
The court held that Jimenez created a triable issue of fact, ruling that: 1) it is standard practice in the industry to provide a minimum six-foot safety zone behind treadmills; 2) 24 Hour Fitness did not provide this minimum six-foot safety zone; and 3) the failure to provide the minimum safety zone was an extreme departure from the ordinary standard of conduct.
In support of this conclusion, the court found that 24 Hour Fitness knew it was violating the manufacturer's express safety directions when it deliberately arranged the gym equipment without providing a six-foot safety zone behind treadmills. It can be inferred that 24 Hour Fitness did so for the purpose of placing more machines into its facility to accommodate more members and make more money.
LOST IN TRANSLATION?
Next, the court examined whether 24 Hour Fitness obtained Jimenez's signature on the liability release through fraud or misrepresentation, which would invalidate the release. The trial court found no evidence that Wilbourn made any affirmative representations that led Jimenez to believe she was signing something other than what the agreement — a release — was. On appeal, Jimenez argued that Wilbourn did not act in good faith and made affirmative misrepresentations to Jimenez through nonverbal gestures and by pointing to the monthly payment amount on his computer screen. Additionally, 24 Hour Fitness argued that it owed no duty to translate or explain the agreement to Jimenez.
In looking at the validity of the membership agreement's release, the appeal court noted that generally a person who signs an instrument may not avoid the impact of its terms on the grounds that he or she failed to read it before signing unless the release was procured by misrepresentation, overreaching, deception or fraud. In the present case, the court ruled that if a jury were to be persuaded that Wilbourn made misrepresentations to Jimenez about the contents of the agreement — making nonverbal gestures indicating that what she was signing related only to being allowed to exercise if she paid the price on the computer screen — it would be entitled to find that Jimenez's signature on the release was produced by misrepresentation and that the release is not enforceable. Thus, it must be determined whether — with all facts and inferences construed in plaintiff's favor — the conduct shown by plaintiff's evidence could be found to constitute fraud.
24 Hour Fitness contended that nonverbal communications cannot amount to misrepresentations because Jimenez could not reasonably have relied upon anything Wilbourn said since she could not understand English. In rejecting this argument, the court held that while it may be less reasonable for a plaintiff to rely on nonverbal communications in cases where the parties speak the same language, the court held that gesturing in this case was the only form of communication between Wilbourn and Jimenez. Under these circumstances, the court ruled that Wilbourn's gestures and pointing may very well have misrepresented the nature of the document Jimenez signed.
WARNINGS ABOUT WAIVERS
In looking at the appeal court's decision, there are a couple of key points that health and fitness club owners should note. First, waivers or releases are only valid against ordinary negligence. As the court noted, gross negligence on the part of the club or its employees is not covered under the release.
Second, while the court noted that individuals are generally responsible for any release they sign and may not avoid the impact of its terms on the grounds that they failed to read it before signing, the release will be voided if it is procured by misrepresentation, overreaching, deception or fraud. As a result, it is essential that employees ensure that those signing waivers or releases understand what they are signing.
Attorney John T. Wolohan is a professor of sports law in the Department of Sport Management at Syracuse University.
This article originally appeared in the January/February 2016 issue of Athletic Business with the title "Waiver validity at issue in treadmill injury case"