On 03/27/2018 RYAN S CASKEY filed a Personal Injury - Other Personal Injury lawsuit against LA FITNESS. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are GEORGINA T. RIZK, KRISTIN S. ESCALANTE, MARK A. BORENSTEIN and SERENA R. MURILLO. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
GEORGINA T. RIZK
KRISTIN S. ESCALANTE
MARK A. BORENSTEIN
SERENA R. MURILLO
CASKEY RYAN S.
FITNESS INTERNATIONAL LLC
DOES 1 TO 25
WECK CORY R. ESQ.
WECK CORY RUSSELL ESQ.
YOKA & SMITH LLP
HOBSON SUSAN ELAINE
CHOI WILLIAM ESQ.
SMITH ALICE LIH-LING ESQ.
HOBSON SUSAN ELAINE ESQ.
SMITH TIMOTHY MARK
3/9/2020: Motion in Limine - MOTION IN LIMINE PLAINTIFF'S MOTION IN LIMINE NO. 1 TO EXCLUDE EVIDENCE OF CRIMINAL HISTORY
3/9/2020: Motion in Limine - MOTION IN LIMINE PLAINTIFF'S MOTION IN LIMINE NO. 2 TO EXCLUDE EVIDENCE OF OTHER PARTIES SUED
12/13/2019: Objection - OBJECTION FITNESS'S OBJECTION TO LANCE WILSON'S DECLARATION
12/13/2019: Reply - REPLY FITNESS'S REPLY TO PLAINTIFF'S SEPARATE STATEMENT
12/18/2019: Minute Order - MINUTE ORDER (HEARING ON DEFENDANT FITNESS INTERNATIONAL, LLC'S MOTION FOR ...)
11/18/2019: Opposition - OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
11/18/2019: Opposition - OPPOSITION TO DEFENDANT'S SEPARATE STATEMENT OF FACTS
11/22/2019: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER; THE COURT'S ORDER RE: CONTINUANCE OF THE 12/02...) OF 11/22/2019
11/22/2019: Minute Order - MINUTE ORDER (COURT ORDER; THE COURT'S ORDER RE: CONTINUANCE OF THE 12/02...)
9/17/2019: Separate Statement
9/17/2019: Motion for Summary Judgment
7/29/2019: Summons - SUMMONS ON AMENDED COMPLAINT (1ST)
7/2/2019: Reply - REPLY PLAINTIFF'S REPLY TO DEFENDANT'S OPPOSITION TO MOTION TO FILE FIRST AMENDED COMPLAINT
7/8/2019: Minute Order - MINUTE ORDER (HEARING ON PLAINTIFF'S MOTION FOR LEAVE TO FILE FIRST AMENDED...)
5/9/2019: Separate Statement
5/9/2019: Motion for Summary Judgment
6/4/2018: DEFENDANF'S NOTICE OF POSTING JURY FEES
6/18/2018: NOTICE OF ENTRY OF ORDER RE STIPULATION TO STRIKE PORTIONS OF PLAINTIFFS COMPLAINT
Hearing07/19/2021 at 08:30 AM in Department 29 at 312 North Spring Street, Los Angeles, CA 90012; Jury TrialRead MoreRead Less
Hearing07/08/2021 at 10:00 AM in Department 29 at 312 North Spring Street, Los Angeles, CA 90012; Final Status ConferenceRead MoreRead Less
Docketat 08:30 AM in Department 29, Serena R. Murillo, Presiding; Order to Show Cause Re: Dismissal - Not Held - Advanced and VacatedRead MoreRead Less
DocketSubstitution of Attorney; Filed by Fitness International, LLC (Defendant)Read MoreRead Less
Docketat 10:30 AM in Department 29, Serena R. Murillo, Presiding; Trial Setting Conference - HeldRead MoreRead Less
DocketMinute Order ( (Trial Setting Conference)); Filed by ClerkRead MoreRead Less
Docketat 08:30 AM in Department 29, Serena R. Murillo, Presiding; Trial Setting Conference - Not Held - Advanced and Continued - by CourtRead MoreRead Less
Docketat 1:30 PM in Department 29, Serena R. Murillo, Presiding; Court OrderRead MoreRead Less
DocketCertificate of Mailing for ((Court Order Re: COVID-19;) of 04/24/2020); Filed by ClerkRead MoreRead Less
DocketMinute Order ( (Court Order Re: COVID-19;)); Filed by ClerkRead MoreRead Less
DocketAnswer; Filed by Fitness International, LLC (Defendant); LA Fitness (Legacy Party)Read MoreRead Less
DocketReceipt; Filed by Fitness International, LLC (Defendant)Read MoreRead Less
DocketReceipt; Filed by Fitness International, LLC (Defendant)Read MoreRead Less
DocketDEFENDANT FITNESS INTERNATIONAL, LLC'S ANSWER TO PLAINTIFF'S COMPLAINT; DEMAND FOR JURY TRIALRead MoreRead Less
DocketDEFENDANF'S NOTICE OF POSTING JURY FEESRead MoreRead Less
DocketReceipt; Filed by Defendant/RespondentRead MoreRead Less
DocketSummons; Filed by Ryan S. Caskey (Plaintiff)Read MoreRead Less
DocketSUMMONSRead MoreRead Less
DocketCOMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)Read MoreRead Less
DocketComplaint; Filed by Ryan S. Caskey (Plaintiff)Read MoreRead Less
Case Number: BC699696 Hearing Date: December 18, 2019 Dept: 2
Caskey v. LA Fitness, et al.
The Motion for Summary Judgment, or in the Alternative, Summary Adjudication, filed by Defendant Fitness International, LLC on 9/17/2019 is DENIED. Plaintiff has raised triable issues of material fact sufficient to preclude summary judgment. Code Civ. Proc. § 437c, subd. (c).
In this action, Plaintiff alleges that he was working out at fitness facility owned or operated by Defendant Fitness International LLC (erroneously sued as “LA Fitness”) when a punching bag he was working with detached from the wall and fell on Plaintiff, causing Plaintiff to suffer injuries. Plaintiff alleges that Defendant failed to maintain, inspect, secure and tighten the screw that was used to secure the punching bag, which caused a dangerous condition for patrons and guests using the punching bag. Plaintiff further alleges that Defendant had actual or constructive notice of the condition. Based on these allegations, Plaintiff alleges two causes of action against this defendant: general negligence and premises liability.
Fitness International has moved for summary judgment, or in the alternative, summary adjudication based on the following contentions: (1) the waiver and release of liability in the membership agreement provides a complete defense to this action; (2) the doctrine of primary assumption of risk provides a complete defense; and (3) Plaintiff cannot establish that Defendant had notice of a dangerous condition.
Defendant Fitness International, LLC does business as L.A. Fitness. On November 2, 2015, Plaintiff entered into a membership agreement with LA Fitness, which contained a provision entitled “Release and Waiver of Liability and Indemnity.” The provision states that the member acknowledges and agrees that “the use of the facility involves risks of injury to persons and property. Member understands, voluntarily accepts and assumes full responsibility for such risks, which include (but are not limited to) injuries arising from use of exercise equipment and machines; injuries arising from participation in supervised or unsupervised activities or programs; injuries and medical disorders arising from exercising . . . ; accidental injuries occurring in dressing rooms, showers and other facilities; and injuries so severe that they result in [severe injuries or even death].”
The provision goes onto to state that in consideration for use of the facility, “Member agrees that [LA Fitness] will not be liable for any injury to the person . . . of Member . . . and Member hereby releases and holds harmless [LA Fitness] from all liability to Member . . . for any loss or damage, and forever gives up any claim or demands thereof, on account of injury to person or property, including injury leading to death, whether caused by the active or passive negligence of [LA Fitness] or otherwise, and whether related to exercise or not, to the fullest extent permitted by law, while Member . . . [is] in, on, or about Club premises or using any [LA Fitness[ facilities, service or equipment. . . . Member further expressly agrees that this release and waiver of liability and indemnity is intended to be as broad and inclusive as permitted by the law of the state of California . . . . Member has read this release and waiver of liability and indemnity and agrees that no oral representations, statements or inducement apart from this Agreement have been made.”
Plaintiff signed the agreement and initialed this provision and received a copy of the agreement.
On November 3, 2016, Plaintiff checked into the LA Fitness club facility and was granted access pursuant to his membership agreement. Plaintiff was using a punching bag at the club when the heavy bag swung and detached from the wall, falling onto Plaintiff, allegedly causing injuries.
In support of its motion, Defendant provided a declaration of Hector Figueroa, a “Club Pride Supervisor,” whose job duties include cleaning the facility, overseeing “other janitors,” and “inspecting and maintaining” some of the facilities fixtures, including punching bags. He stated that every Monday through Friday at 8:00 a.m. he checked the punching bag to make sure they are clean and are secure to the wall brackets and to make sure the connections have not become loose. He inspects the connecting mechanisms and tighten the nut and bolt and replaces the connecting mechanisms on an as-needed basis. On the day before the incident in question, Figueroa inspected the bag, tightened the nut and bolt, and determined that the connecting mechanism did not require replacement.
In opposition, Plaintiff presented the declaration of Lance Wilson, a private investigator with experience in inspecting fitness facilities. He states that he personally observed that all hanging hardware, including the hanging hardware and parts involved in this incident, showed extreme wear and tear and lack of maintenance. In particular, he observed that the snap link carabiner is worn significantly thinner than it was originally manufactured, that eyebolt hardware showed signs of wear and damage to threads, and that chain swivels showed signs of wear. Mr. Wilson concluded that “based on the inspection and investigation, it appears that there are not enough threads on the existing eyebolts to get the Nyloc to lock in place.” Mr. Wilson infers from this that there were no maintenance procedures in place, that the hardware was not inspected or checked for tightness, and that there were no torque check on the hardware.
He also opined that the bag should have been secured to the ground and that a safety cable should have been installed to prevent the bag from falling in the event of hardware failure.
Mr. Wilson opined that LA Fitness failed to maintain its equipment in a safe condition, failed to inspect the hanging hardware, failed to replace worn and damaged parts, failed to notice obvious signs of wear and tear on multiple parts and failed to properly secure the bag to the wall and ground.
Attached to Mr. Wilson’s declaration were a number of photographs of component parts of the fastening devices that appear to be extremely worn and in poor repair. These photographs controvert Mr. Figueroa’s declaration that he “replaces the connecting mechanisms on an as-needed basis.”
Plaintiff also presents that declaration of Kurt Baker, a retained expert with over 30 years of experience and training in gym and fitness facilities and with knowledge and experience relating to national industry standards associated with facility design and operations. He confirms that the photographs of the equipment and hardware show significant wear and degradation of the equipment, which, in Mr. Baker’s opinion, show that the bag was not properly inspected. The dangerous condition of the hardware would have been noticeable upon inspection the day before the incident. Mr. Baker infers from the condition of the hardware that there are no maintenance or inspection procedures in effect at LA Fitness to prevent the type of harm that occurred. It is a violation of industry procedure and custom not to have maintenance records or written inspection procedures.
Mr. Baker opines that the condition of the equipment is inconsistent with Mr. Figueroa’s claim that the replacement of the mechanisms occurs on average less than every three months. According to Mr. Baker, “it is obvious from the photographs depicting the worn hardware that the pieces are not replaced every three months.” Further, Mr. Baker opined that it takes days, if not weeks for a lock nut to work its way down the eyebolt to detach, contradicting Mr. Figueroa’s claim that he had inspected and tightened the bolt in question on the day prior to the incident.
He also opined that the procedure that Mr. Figueroa claims he used in tightening the bolt violates industry standards and procedures. He also opines that LAA Fitness failed to use proper fasteners.
He finally opined that LA Fitness’s complete lack of safety protocols as it pertains to their inspection, maintenance and documentation of their gym equipment is an extreme departure from the industry standard of care and significantly increases the risk of harm associated with the use of the equipment.
Plaintiff also submitted deposition testimony of Mr. Figueroa, who testified that there was no written documents that he reviewed to learn how to properly maintain the punching bags and that he maintained no maintenance or inspection records. Mr. Figueroa testified that the eyebolt and locking nuts that failed were “in perfect condition” so far as he could observe and that he could see absolutely no sign of wear to any part of the bag or supporting mechanism when he purportedly inspected the bag and its component parts the day before the incident. He never reviewed any maintenance manuals. The testimony makes clear that Mr. Figueroa lacks training and experience in equipment maintenance.
Plaintiff also submitted his own deposition testimony. Among other things, he testified that after the bag fell there were nuts and bolts all over the ground.
RULINGS ON OBJECTIONS:
DEFENDANT’S OBJECTIONS TO LANCE WILSON’S DECLARATION
7. Sustained as to the words “LA Fitness failed to inspect the hanging hardware”; otherwise overruled.
DEFENDANT’S OBJECTIONS TO KURT BAKER’S DECLARATION
A. THERE IS A TRIABLE ISSUE OF FACT AS TO GROSS NEGLIGENCE
Defendant argues that the release provides a complete defense in the case. But the release would not be effective to preclude liability based on gross negligence. “[A]n agreement made in the context of sports or recreational programs or services, purporting to release liability for future gross negligence, generally is unenforceable as a matter of public policy.” City of Santa Barbara v. Superior Court (2007) 41 Cal. 4th 747, 751. “For purposes of this distinction, 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.” Hass v. RhodyCo Productions (2018) 26 Cal. App. 5th 11, 31 (internal quotation marks deleted). “Mere nonfeasance, such as the failure to discover a dangerous condition or to perform a duty, amounts to ordinary negligence.” Id. By contrast, gross negligence is either a “want of even scant care” or “an extreme departure from the ordinary standard of conduct.” Id. Gross negligence differs from ordinary negligence “only in degree and not in kind.” Id.
It is generally a “triable issue of fact whether there has been such a lack of care as to constitute gross negligence.” Id. at 33. Viewing the evidence and all permissible inferences in the light most favorable to Plaintiff, it is possible that Plaintiff’s conduct with respect to inspecting and maintaining the hardware attached to the punching bags was an extreme departure from ordinary care.
To satisfy its initial burden, Defendant relies on the declaration of its janitor Mr. Figueroa, who declared that he performed daily inspections of the equipment and replaced worn components whenever replacement was needed. But the declarations of Mr. Baker and Mr. Wilson are sufficient to raise a triable issue as to whether Mr. Figueroa’s testimony is credible. The photographs relied on by the experts show that component parts of the fasteners were extremely worn. In some places, the metal had been worn away to only one-sixth of the original thickness of the metal. This contradicts Mr. Figueroa’s statements that he replaced worn component parts as necessary. Further, Mr. Baker opines that it would have taken days, if not weeks, for the lock nut to work its way down the eyebolt and detach, contradicting the claim that Mr. Figueroa had inspected and tightened the bolt just the day before. The inference from Mr. Baker’s declaration that regular inspection, maintenance and repair of the component parts was not done is further bolstered by the fact that there were no repair, maintenance and inspection records kept.
The Court finds that there is a triable issue of material fact as to whether Mr. Figueroa’s declaration is credible, which precludes summary judgment here. The evidence submitted by Plaintiff supports an inference that regular inspections and maintenance were not performed, thus contradicting and undermining Mr. Figueroa’s declaration. A reasonable jury could find that the absence of any regular inspection, maintenance or repair of the fastening devices on the punching bags constituted an extreme departure from the ordinary standard of care. See, e.g., Chavez v. 24 Hour Fitness USA, Inc. (2015) 238 Cal. App. 4th 632, 642 (finding a triable issue of material fact as to whether defendant was grossly negligent because the fitness facility “failed to perform regular preventative maintenance, and on that basis, it failed to exercise scant care or demonstrated passivity and indifference toward results.”)
The Court thus denies summary judgment based on the release.
B. THERE IS AT LEAST A TRIABLE ISSUE OF FACT AS TO WHETHER THE PRIMARY ASSUMPTION OF THE RISK DOCTRINE BARS PLAINTIFF’S CLAIMS
Under the primary assumption of the risk doctrine, a defendant owes no duty to protect the plaintiff who participates in a risky recreational activity from particular risks of harm that are inherent in the activity itself. Knight v. Jewett (1992) 3 Cal. 4th 296, 316. Thus, for example, “although moguls on a ski run pose a risk of harm to skiers that might not exist were these configurations removed, the challenge and risks posed by the moguls are part of the sport of skiing, and a ski resort has no duty to eliminate them.” Id. By contrast, “it is well established that defendants generally do have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport.” Id. Thus, for example, “although a ski resort has no duty to remove moguls from a ski run, it clearly does have a duty to use due care to maintain its towropes in a safe, working condition so as not to expose skiers to an increased risk of harm.” Id.
Here, Plaintiff’s claim is not based on a risk inherent in working out with a punching bag; instead, it is based on LA Fitness’s alleged gross negligence in failing to inspect, maintain or repair the fasteners for the punching bag. As previously discussed, Plaintiff has raised a triable issue of fact on that issue. As Knight v. Jewett makes clear, primary assumption of risk does not bar such a claim.
It may that at trial, Defendant will be able to establish that Plaintiff’s alleged injuries were caused by the ordinary swinging of the punching bag, and not by a failure of the component parts of the attachment system. If Defendant is able to prove that, the claim may well be barred by primary assumption of risk. But Defendant has not made such a showing in this motion.
C. THERE IS AT LEAST A TRIABLE ISSUE OF FACT AS TO WHETHER THE FACILITY HAD CONSTRUCTIVE NOTICE OF THE DANGEROUS CONDITION
To establish premises liability, a plaintiff must prove that the defendant knew, or through the exercise of reasonable care, should have known that there was a dangerous condition on the premises. Ortega v. Kmart Corp. (2001) 26 Cal. App. 4th 1200, 1206. In other words, “a property owner must have actual or constructive notice of a dangerous condition before liability will be imposed.” Getchell v. Rogers Jewelry (2012) 203 Cal. App. 4th 381, 385. The plaintiff must show that the dangerous condition existed for a least a sufficient time for the defendant to have discovered it through the exercise of due care.
Here, the declaration of Mr. Wilson and Mr. Baker are sufficient to raise a triable issue of material fact that LA Fitness had constructive notice of the allegedly dangerous condition of the punching bag’s attachment apparatus. The photographs show that the component parts of the attachment system were extremely worn. Mr. Baker and Mr. Wilson’s declarations raise a triable issue that had reasonable inspections occurred, that LA Fitness would have discovered the defect.
Defendant is not entitled to summary judgment on this ground.
In sum, the Court DENIES the motion for summary judgment.
Moving party is ordered to give notice.
Case Number: BC699696 Hearing Date: December 02, 2019 Dept: 2
BC699696 Caskey v. LA Fitness, et al
On the court’s own motion, the hearing on the Motion for Summary Judgment set for hearing on 12/2/19 is continued to 12/18/2019 at 1:30 p.m. in Department SS-2. The due date for the opposition and reply is based on the original hearing date.
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