A California state appeals panel recently issued a ruling that should put exercise facilities and sloppy lawyers on notice. According to a report on Law360, a panel of judges “affirmed a $477,000 award in favor of a woman who accused a gym of causing her trip-and-fall injuries.” A key issue was whether Patricia Ziegler should even have been allowed to sue, since she had signed “a membership agreement containing a waiver of ordinary negligence claims.”
Ms. Ziegler sued alleging “negligence per se” and won a judgment for $636,000, which the trial judge reduced by 25 percent because Ms. Ziegler had been partly at fault. The defendants, The Bay Clubs Co. LLC and Bay Club South Bay LLC, had argued on appeal that Ms. Ziegler had failed to prove negligence per se.
The difference between these two standards of liability — ordinary negligence and negligence per se — bears some explaining. Ordinary negligence is a failure to exercise reasonable care. A business, such as a gym, has a duty to make its premises reasonably safe for its patrons. Whether a business owner meets this standard is a question of fact for a jury to decide.
The jury considers a wide range of factors, such as:
- Whether a hazard was hidden or obvious
- Whether a reasonably vigilant owner would have discovered the hazard
- Whether a hazard could have been effectively removed
- Whether warnings about the hazard were adequate
- Whether the owner had sufficient time to act between the discovery of the hazard and the accident
However, a gym is a dynamic area, where patrons themselves routinely create risks by, for example, placing equipment on the floor where anyone can trip on it. Making the gym owner responsible for accidents that might occur in this manner would place too great a burden on the establishment, and possibly make operation cost-prohibitive. Therefore, it’s considered reasonable for gym owners to have patrons sign waivers that protect against ordinary negligence by having the patron assume the risk of accidents due to ordinary negligence.
However, negligence per se is a different matter. Per se is a Latin phrase that means “in and of itself.” If an action qualifies as negligence per se, the injured party doesn’t have to show the defendant was unreasonable, and proof by the defendant that his actions were reasonable is irrelevant. The law generally recognizes negligence per se when a defendant violates a regulation, and the violation is a direct cause of the accident.
Here is how the issue played out in Ms. Ziegler’s case. Ms. Ziegler claimed “she shattered her elbow after tripping over a protective metal box covering electrical wires in a gym … in 2016.” The box was on the floor in an area between treadmills. Ms. Ziegler was barred from arguing ordinary negligence, so she asserted negligence per se, contending that the placement of the box violated a building code that mandated certain areas be clear of obstructions.
In essence, Ms. Ziegler’s attorneys argued at trial that the area where she fell was covered under the pertinent building code. They brought in a “civil engineer expert” who testified at trial that “the area between the treadmills was … an ‘aisle-accessway’ because it was used to gain access to the aisle.” Such accessways “must remain unobstructed.” At trial, “the jury found that The Bay Clubs violated the California Building Code and that the violation was a substantial factor in causing her injuries.”
On appeal, the defense “argued that Ziegler failed to present substantial evidence to support a jury instruction regarding a building code violation.” They claimed the area could not have been an aisle accessway, because as Ziegler’s expert testified, “the minimum clear width for an aisle accessway is 30 inches,” but “the space between the treadmills was 12- to 18-inches wide at the time of his inspection.”
They made this assertion despite conceding that “that the building code does not have any minimum width requirements for aisle accessways in a gym.” One of the panel judges, Brian S. Currey, wrote, "This is a non sequitur." It would seem that the facts supported a finding of negligence per se.
But the panel didn’t even have to go into the substantive arguments of whether the building code covered the area between treadmills, because, “the gym forfeited its appeal by not objecting to the jury instruction at trial.” Procedurally, attorneys must reserve the right to appeal a trial court’s decision at trial, or they are barred from raising it later. Counsel for Ms. Zeigler comments that this is a "fundamental rule of appellate law that trial attorneys often overlook in the heat of battle."
So, this case really amounts to two cautionary tales. The first is for gym owners who should “keep an eye on how people are walking in between machines, because health clubs' policies vary, and gaps between exercise machines could create a liability.” The second lesson is for trial advocates who must remember “to lodge objections timely at the trial level.” Fumbling an objection that could have changed the course of an appeal is damaging to the client and could expose a lawyer to malpractice liability.
If you have a premises liability injury claim, Hockfelsen & Kani is ready to provide professional and aggressive representation focused on delivering results. There are strict time limits to make your claim, and if you miss them, you may waive your rights. For a free consultation and case evaluation, call us or connect us online now.