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Lund v. Bally's Aerobic Plus2/28/2000
CERTIFIED FOR PUBLICATION
The modern health or fitness club is a place where a person can attain physical health and fitness. It is also a place where a person can get hurt. For this reason, most, if not all, health clubs require patrons to assume the risk of physical injury associated with body building and aerobic conditioning. As we shall explain, here the waiver and release of liability operates as an effective written assumption of the risk which bars recovery.
Ellen Lund appeals from the judgment of non-suit granted to respondents Bally's Aerobic Plus, Inc. and Bally's Total Fitness (collectively, Bally's) after the presentation of her evidence at the trial of this personal injury case. Lund unsuccessfully contends the trial court erred when it concluded her claims were barred by a waiver and release form she signed when she became a member of a Bally's gym.
Facts and Procedural History
In late 1989 or early 1990, Lund injured her cervical spine and had surgery to fuse two vertebrae in her neck. In February 1994, she joined a Bally's health club in Simi Valley. In December of 1994, she paid Bally's $375 in addition to the cost of her membership for 20 sessions with a personal trainer, Ron Ladd. Lund told Ladd that she previously had neck surgery and that her doctor told her not to lift weight over her head. Ladd assured her that he could show her how to use the weight machines without injuring her neck. Lund followed his advice. Admittedly, with the benefit of hindsight, Ladd's assurances and Lund's acceptance of his representations were foolish.
During their first session, Ladd showed Lund how to use an incline bench press machine with a 10-pound weight. Lund lifted the weight 15 times before she felt pressure in her neck. After she lifted it three more times, Lund felt a pain, "like the top of my head broke off." She had re-injured her cervical spine, requiring another surgery. Lund sued Bally's for personal injury , contending Ladd was negligent when he instructed her on how to use the incline bench press.
The trial court granted Bally's motion for non-suit following the presentation of her evidence at trial. It concluded that a waiver and release included in Lund's membership contract barred her claim. The waiver and release is part of the form "retail installment contract" prepared by Bally's that Lund signed when she joined the club in February 1994. Lund testified that, although she reviewed the financial terms of the contract, she did not read its other provisions.
Near the signature line, the contract states: "NOTICE TO BUYER: 1. DO NOT SIGN THIS AGREEMENT BEFORE YOU READ IT OR IF IT CONTAINS ANY BLANK SPACES TO BE FILLED IN. . . ." Lund testified she did not read this portion of the contract. A few lines later, the contract states: "WAIVER AND RELEASE: This contract contains a WAIVER AND RELEASE in Paragraph 10 to which you will be bound." Lund did not read this sentence. Lund also acknowledged that she did not read the waiver and release paragraph itself.
The waiver and release paragraph, printed on a following page of the contract, provides, "10. WAIVER AND RELEASE. You (Buyer, each Member and all guests) agree that if you engage in any physical exercise or activity or use any club facility on the premises, you do so at your own risk. This includes, without limitation, your use of the locker room, pool, whirlpool, sauna, steamroom, parking area, sidewalk or any equipment in the health club and your participation in any activity, class, program or instruction. You agree that you are voluntarily participating in these activities and using these facilities and premises and assume all risk of inj
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