Gym customer trips; defense falls apart over waiver. $636K. Los Angeles County.
Woman using the gym trips over an electrical box on the floor. Parties dispute liability release.
- Case Name: Ziegler v. The Bay Clubs Company, LLC, et al.
- Court and Case Number: Los Angeles Superior Court / BC638802
- Date of Verdict or Judgment: Wednesday, May 16, 2018
- Date Action was Filed: Tuesday, November 01, 2016
- Type of Case: Negligence, Trip and Fall
- Judge or Arbitrator(s): Hon. Chester Horn
Plaintiffs: Patricia Ziegler, 71, retired/freelance HR director.
Defendants: The Bay Clubs Company, LLC
- Type of Result: Jury Verdict
- Gross Verdict or Award: $636,098.18
- Net Verdict or Award: $477,073.64
- Contributory/Comparative Negligence: 25% on plaintiff.
Past economic damages: $93,510.68
Future economic damages: $109,725
Past noneconomic damages: $161,850
Future noneconomic damages: $271,012.50
- Trial or Arbitration Time: 7 days.
- Jury Deliberation Time: 3 days.
- Post Trial Motions & Post-Verdict Settlements: Motion for New Trial Denied on 6/28/2018.
Attorney for the Plaintiff:
Strickland Law Firm by William E. Strickland, Manhattan Beach.
Attorney for the Defendant:
Mavredakis Cranert & Crawford by Terrence Cranert, Pasadena.
Plaintiff’s Medical Expert(s):
Brian Magovern, M.D., orthopedic surgery, Torrance. (Treating physician.)
Eric Yu, DC, Redondo Beach. (Treating physician.)
Defendant's Medical Expert(s):
Jeffrey Korchek, M.D., orthopedic surgery, North Hollywood.
Plaintiff's Technical Expert(s):
Philip Rosescu, forensic engineering.
Kurt Kuhn, handwriting, Fullerton.
Defendant's Technical Expert(s):
Bart Baggett, handwriting, Sherman Oaks.
Dennis Fitzgerald, electrical engineering.
Facts and Background
Facts and Background:
While plaintiff was walking through defendant’s gymnasium in El Segundo on January 31, 2016, her foot clipped the top of a metal wireway on the floor (approximately 6”x 6” x 6") that contained electrical wires running to defendants’ workout treadmill machines. The metal wireway was placed between the treadmills and was frequently traversed by gym members. The lid of the metal wireway was not secured and detached from the metal wireway. After the unsecured lid detached, plaintiff’s foot came down inside the metal wireway, causing her to lose balance and fall.
That the gyms' liability release agreement was void and defendants were responsible for negligence per se.
Specifically, defendants violated the California Building Code in the placement of the electrical wireway across an aisle that was more than 30 inches wide. Defendants relied solely on an allegedly signed one-page document titled “Amendment to Membership Agreement” to claim that Ms. Ziegler had waived all claims against them. Defendants did not produce a Club Membership Agreement signed by Ms. Ziegler; defendants only produced a Club Membership Agreement signed by her husband, which did not release any of Ms. Ziegler’s claims for injuries. Also, defendants were unable to authenticate the signature on the Amendment to Membership Agreement. Defendants stated they did not know how the signature was collected and there was no custodian for the record. Ms. Ziegler did not recall signing any such document, and Ms. Ziegler was not provided with a copy of the document. On the eve of trial, defendants claimed that the subject signature was captured by "electronic signature." Defendants failed to comply with the requirements for electronic signatures.
That plaintiff's claim was barred by a release agreement.
Injuries and Other Damages
Physical Injuries claimed by Plaintiff:
Fracture and dislocation of right elbow.
Demands and Offers
- Plaintiff §998 Demand: $200,000, then $495,000.
- Defendant §998 Offer: $35,000
Per defense counsel:
Plaintiff had signed a waiver, releasing the defendants from any injuries while using the Club. She denied signing the waiver and after hearing the evidence the jury determined she had signed the waiver. However, the waiver was not effective if there was a violation of law that supported negligence per se or if there was gross negligence. The jury found there was no gross negligence. Plaintiff’s expert Rosescu testified as to an Electrical Code violation, but after all the evidence was in, the Court refused to instruct on negligence per se based upon the Electrical Code. The judge did instruct on negligence per se as to an alleged Building Code violation as plaintiff argued that the 12- to 18-inch spaces between the treadmills constituted aisles and that the electrical wire-way in front of the treadmills interfered with ingress and egress to the treadmills. Plaintiff had to turn sideways in order to get through the treadmills to take a short cut instead of using the wide aisles that were provided by defendants. The defense argued that the areas on either side of the treadmills were never intended to be aisles and were not aisles; that plaintiff failed to exit the treadmill properly; and that there was no Building Code violation.
The net verdict was less than the final demand from plaintiff and therefore plaintiff was denied pre-judgment interest as well as costs for expert witness fees.
Accordingly, defendant's post-trial motion taxing costs was granted. Defendant's motion for new trial and remittitur was denied.