South Florida Injury Lawyers Blog
Waivers of liability can be difficult to overcome in personal injury cases. Often, proof of simple, ordinary negligence will not be enough. Instead, what must be shown is proof of gross negligence.
Gross negligence occurs when there is some kind of blatant violation of or clear indifference to a legal duty toward the rights and protection of others. It’s a kind of flagrant and conscious disregard for the use of reasonable care. It doesn’t mean showing the accident/ injury was intentional, but rather showing an extreme lack of care that is likely to cause foreseeable, serious harm to someone else. In some cases, an assertion of gross negligence will support a recovery of punitive damages too, though there usually needs to be evidence of willful, wanton misconduct.
In the case of Anderson v. Fitness International LLC, the question was whether plaintiff had sufficiently proven gross negligence to overcome the protection that his signed waiver of liability had afforded the defense. A California appeals court ruled: No.
According to court records, plaintiff joined defendant gym/ health club when he was in his early 60s. As part of his membership agreement, he signed one document that contained a provision that released the defendant from liability in certain instances. There was an acknowledgement that certain equipment and facilities on site involved the potential risk of injury and that members assumed responsibility for such risks.
The following year, plaintiff finished his exercises at the gym and went to take a shower. The shower room was a single, large room with seven shower heads on the walls. There was a tile floor that sloped downward to drain the water. The floor was layered with a slick coating of body oil and soapy residue from previous showers that day. There were no handrails, shower mats or friction strips in the room.
On the day in question, plaintiff wore sandals and was carrying soap in one hand. He moved toward one of the nozzles and slipped. As he began to fall, he held out his left arm to brace himself. As a result he snapped his humerus bone in two. A fitness instructor called 911 and an ambulance transported plaintiff to a local hospital, where he underwent surgery two days later.
Plaintiff filed a personal injury lawsuit alleging defendant knew or should have known the condition of the showers was dangerous. In fact, he’d personally fallen twice before and had notified the staffers of his fall. Employees reportedly were “marginally interested” in the complaints and his requests to make the showers safer. Front desk employees were also reportedly informed of other patrons’ falls in the men’s shower room.
After his fall, he sent a letter to the club in writing, warning about his fall and the dangerous condition. When he later returned to the club, no changes had been made.
Plaintiff’s slip-and-fall lawsuit alleged that the club took no safety precautions to prevent these falls even after they were warned it was a problem. Plaintiff asserted this inaction was malicious and willful and amounted to a conscious disregard for safety. He sought compensatory and punitive damages.
Defendant responded with a demurrer and later request for summary judgment, arguing plaintiff failed to state a cause of action under state law because he had not shown evidence of gross negligence.
Trial court granted summary judgment, and the California Court of Appeal, Second Appellate District, Division Seven, affirmed. Specifically, the court held that although plaintiff alleged the tile floor was routinely slippery, there was no alleged fact to show this condition was an extreme departure from what one might expect in a health shower club facility or that such risks were unknown to him, particularly given his previous falls.
Call Freeman Injury Law — 1-800-561-7777 for a free appointment to discuss your rights. Now serving Orlando, West Palm Beach, Port St. Lucie and Fort Lauderdale.
Additional Resources:
Anderson v. Fitness International LLC, Oct. 27, 2016, California Court of Appeals, Second Appellate District, Division Seven
More Blog Entries:
$19M Verdict for Boy Who Shot Himself in Head as a Tot, Oct. 29, 2016, Orlando Personal Injury Lawyer Blog