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Sanchez v. Bally''s Total Fitness Corporation11/30/1998
CERTIFIED FOR PUBLICATION
(Super. Ct. No. BC138260)
APPEAL from a judgment of the Superior Court of Los Angeles County, Charles W. McCoy, Judge. Affirmed.
INTRODUCTION
Plaintiff Kathleen Sanchez sued defendant Bally's Total Fitness in negligence for injuries sustained during a slide aerobics class. The trial court granted defendant's motion for summary judgment on two separate and independent grounds: (1) plaintiff's claim was barred by the doctrine of primary assumption of the risk; (2) plaintiff's claim was barred by a release she executed when she joined the health club five years earlier. We conclude the court properly granted summary judgment pursuant to the terms of the release of liability. We therefore affirm the judgment.
FACTUAL BACKGROUND
Plaintiff, a senior real estate officer for the Metropolitan Transportation Authority, first joined the health club in June 1990. Her application for membership contained the following clause: "Accidents/Injury: The member agrees that all exercises and use of the fitness centers are undertaken by the member at the sole risk of the member, and that the fitness center shall not be liable for any claims for injuries or damages whatsoever to person or property of the member or of a guest of a member arising out of or connected with the use of the fitness center. Member agrees to indemnify and to hold the center and its employees harmless from all claims by or liability to member or member's guest, except for those claims arising out of the center[']s knowingly failing to correct a dangerous situation brought to its attention." Plaintiff and a representative of defendant Bally's Total Fitness signed the application on June 12, 1990.
On November 2, 1995, plaintiff slipped and fell, while participating in a slide aerobics class offered by defendant. Slide aerobics involves the use of an extremely slippery six-foot mat with rubber bumpers at each end of the mat. The purpose of the slide portion of the mat is to allow a participant, with knees slightly bent and back straight, to slide from side to side, creating an aerobic exercise. A participant wears special socks to facilitate sliding back and forth on the mat.
The accident occurred between exercises, approximately 20 minutes after plaintiff had arrived and joined in the class. Plaintiff, on the left side of the mat, decided to cross to the right. She took small steps across the slide part of the mat. She walked very slowly and cautiously, as if walking on ice, to avoid slipping. Nonetheless, she slipped, injuring her left wrist. Plaintiff now claims that had she received proper instruction(s) on how to properly cross the slide, the accident would not have happened.
CONTENTIONS
Plaintiff contends that the release clause is ineffective to relieve the health club of liability for her injuries because the exculpatory provision is not set out in large or italicized letters emphasizing to the reader that she is foregoing her right to assert a claim for injuries and damages and that she will hold Bally's harmless from all claims or liability to plaintiff. She further contends that the provision is inadequate because the word "negligence" is nowhere to be found among its terms.
DISCUSSION
Plaintiff's argument that the release clause is ineffective because it is not highlighted or italicized or differentiated by the size of the printed words is irrelevant because she fails to show that she was unaware of the exculpatory language or was otherwise misled. She admitted in her deposition that she signed it and read it and was aware that she was entering into a contract at
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