Opinion
B153972.
7-3-2003
ELLEN FOSTER, Plaintiff and Appellant, v. HYATT CORPORATION, Defendant and Respondent.
Ellen Foster, in propria persona, for Plaintiff and Appellant. Eiler & Geary, Scott A. Elliott and James O. Eiler for Defendant and Respondent.
Ellen Foster (appellant) appeals from the judgment entered after the superior court granted the summary judgment motion of respondent Hyatt Corporation (erroneously sued as California Hyatt Corporation, hereinafter referred to as respondent). We affirm the judgment (order granting summary judgment)
FACTUAL AND PROCEDURAL BACKGROUND
Appellant was a guest at respondents Park Hyatt Hotel in Century City on June 4, 1999. She was using one of several treadmills located in the hotels fitness facility at approximately 9:00 a.m. When appellant was alone, a man in street clothes entered the room, left, then returned. Appellant was concerned about this man and when she turned to watch the man as he left the room, she lost her balance and fell. She was ejected off the end of the treadmill and her leg was injured by the moving belt.
Appellant filed a lawsuit against respondent on June 2, 2000, alleging causes of action for general negligence and premises liability. Respondent answered and asserted 11 affirmative defenses. It then filed a motion for summary judgment in April 2001. The motion was supported by a Separate Statement of Undisputed Facts which established that appellant was familiar with treadmills, having used them before, and that "she had to pay attention as to what she was doing and that if she did not pay attention, there was a possibility that she could fall down." It was also established that "there was nothing about the machine itself that caused [appellant] to fall down"; that she fell down when she looked to her left and lost her balance. The motion was based on the principle of primary assumption of the risk enunciated in Knight v. Jewett (1992) 3 Cal.4th 296, 308, 834 P.2d 696.
Appellant filed opposition to the motion, but did not contest the undisputed facts established by respondent. She conceded that falling on a treadmill is within the normal risks inherent in using the treadmill but, she argued, it was not the fall upon which she based her claim: "[appellant] claims not that she was injured from her fall, but rather that after falling the moving treadmill belt carried her to the end of the treadmill where she became wedged between the treadmill and the exercise room wall. [Appellant] claims that, once there, she was unable to move away from the moving treadmill belt, which then seriously abraded her legs, which eventually became scarred."
In support of her opposition, appellant presented excerpts from her deposition and her answers to interrogatories propounded by respondent. Her answer to special interrogatory No. 6 succinctly presents the factual basis of her claim: "There was no attendant in the Fitness Center and being alone with that strange acting man made me nervous which is why I watched him. The treadmill was placed much too close to the wall behind it which is why I was wedged in with my feet on the moving belt. To get off it I had to find a place to put my hands so they wouldnt also be on the moving belts and to give myself leverage to push myself to the side of the treadmill and thereby [get] off of it. If the treadmill had had a safety key that I could have hooked on to my shorts, the belt would have stopped as soon as I fell."
Respondent filed a reply to the opposition and objected to the excerpts from appellants deposition describing the fall and the above answer to interrogatory on the same grounds: "speculation, lacks foundation, lacks relevance as to motion for summary judgment."
The superior court granted the motion and judgment was subsequently entered in favor of respondent. The court prepared and signed an order granting the motion which states:
"The Court finds that there are no disputed facts regarding the cause of plaintiffs fall. . . . Plaintiff does not dispute that she fell solely because she turned her head and lost her balance, and not due to any problem with the condition, working or placement of the treadmill. Plaintiff has presented no evidence to establish the existence of a dangerous condition or any other negligence on the part of defendant HYATT, other than plaintiffs own speculative conclusory declaration.
"Plaintiff speculates, without presenting any factual basis or expert opinion, that the treadmill was negligently placed too close to the wall and that this placement exacerbated her injuries after she fell on the treadmill. She also alleges, again without any evidentiary support, that defendant was negligent in failing to have an attendant present in the gym and in not providing a safety key for the treadmill. Even under standards of ordinary premises liability, plaintiff has failed to present a triable issue of fact that defendants[] negligence caused her injury.
". . . . Falling is an inherent risk in using a treadmill. Defendant HYATT had no duty to eliminate plaintiffs risk of falling. At best, defendant had only a limited duty under Knight v. Jewett not to increase the inherent risk to plaintiff. There is no[] triable issue of fact to support any contention that defendant increased plaintiffs risk of falling. Assuming, arguendo, that plaintiff had presented admissible evidence that the location of the treadmill exacerbated her injuries, ` The Knight exception applies when the defendant increased the risk of injury beyond that inherent in the sport, not when the defendants conduct may have increased the severity of the injury suffered. [Citations.]" (Italics in original.)
DISCUSSION
Appellant contends that the superior court erred because respondent did not present sufficient evidence about the position of the treadmill to justify summary judgment, that respondent owed a duty to her to keep its premises free of unreasonable risk, that respondent created an unreasonable risk of harm by placing the treadmill too close to the wall, and that the doctrine of primary assumption of risk does not apply to this case.
A defendant moving for summary judgment must present facts to negate each claim in the complaint or establish a defense to each of those claims. If it does so, the burden shifts to the plaintiff to demonstrate the existence of a triable material issue of fact. (Code Civ. Proc., § 437c, subd. (c); Wattenbarger v. Cincinnati Reds, Inc. (1994) 28 Cal.App.4th 746, 750.) In determining the propriety of a summary judgment, the trial court is limited to facts shown by the evidentiary material submitted as well as those admitted and uncontested in the pleadings. (Committee to Save the Beverly Highlands Homes Assn. v. Beverly Highlands Homes Assn. (2001) 92 Cal.App.4th 1247, 1261.) On appeal, the court determines de novo whether any triable issues of material fact exist and thus whether the moving party is entitled to judgment as a matter of law. (Bjork v. Mason (2000) 77 Cal.App.4th 544, 548.)
As previously noted, appellant did not contest the fact established by respondent that falling on a treadmill is an inherent risk in using a treadmill. In other words, she concedes that assumption of the risk is an issue to be addressed in this case. But she argues that the court erred in applying the concept of primary assumption of risk rather than secondary assumption of the risk. The difference between the concepts is discussed in Knight v. Jewitt, supra, 3 Cal.4th at page 309 as follows:
"First, in `primary assumption of risk cases — where the defendant owes no duty to protect the plaintiff from a particular risk of harm — a plaintiff who has suffered such harm is not entitled to recover from the defendant, whether the plaintiffs conduct in undertaking the activity was reasonable or unreasonable. Second, in `secondary assumption of risk cases — involving instances in which the defendant has breached the duty of care owed to the plaintiff — the defendant is not entitled to be entirely relieved of liability for an injury proximately caused by such breach, simply because the plaintiffs conduct in encountering the risk of such an injury was reasonable rather than unreasonable. Third and finally, the question whether the defendant owed a legal duty to protect the plaintiff from a particular risk of harm does not turn on the reasonableness or unreasonableness of the plaintiffs conduct, but rather on the nature of the activity or sport in which the defendant is engaged and the relationship of the defendant and the plaintiff to that activity or sport."
Whether primary or secondary assumption of the risk applies depends on the nature of the risk associated with the activity involved. "A defendant owes no duty of care to protect a plaintiff against risks inherent in a particular sport voluntarily played by the plaintiff. But the defendant owes a duty to participants not to increase the risk of harm over and above that inherent in the sport. [Citations.] . . . If it is determined that the actions of a defendant did increase the risk of harm above that inherent in the sport, primary assumption of the risk is not available and the issue becomes one of secondary assumption of the risk. [Citation.]" (Sanchez v. Hillerich & Bradsby Co. (2002) 104 Cal.App.4th 703, 712.)
It is the inherent risk of harm which must be increased by actions of the defendant, not the significance of the potential injury arising from the inherent risk of harm. This principle is addressed in Calhoon v. Lewis (2000) 81 Cal.App.4th 108 (Calhoon), which utilizes the terminology "the Knight exception" to refer to the concept of secondary assumption of the risk. The case involved an injury sustained by the plaintiff on defendants property when he fell on a metal pipe in a planter while skateboarding. Summary judgment was granted to defendants on the basis of primary assumption of the risk. The plaintiff conceded that falling while skateboarding was an inherent risk in the sport but he argued that the inherent risk of harm was increased by defendants when they installed the planter with the metal pipe in it. The Court of Appeal disagreed: "First, the pipe did not increase Michaels risk of injury in the sport. Michael was injured because he fell. As Michael concedes, falling is an inherent risk of skateboarding, and the presence of the pipe or the planter had nothing to do with his falling down. The fact that Michaels injuries were more severe than they would have been if the pipe had not been in the planter does not make the assumption of risk doctrine inapplicable. The Knight exception applies when the defendant increased the risk of injury beyond that inherent in the sport, not when the defendants conduct may have increased the severity of the injury suffered. [Citation.] Michaels focus on the fact that he was unaware of the pipe is misplaced. The assumption of risk doctrine is an objective test and `does not depend on the particular plaintiffs subjective knowledge or appreciation of the potential risk. (Knight, supra, 3 Cal.4th at p. 316.)" (Calhoon v. Lewis, supra, 81 Cal.App.4th at p. 116, italics in original.)
The facts of this case are indistinguishable from Calhoon, except for the specific activity involved. Appellant concedes that falling while using a treadmill is an inherent risk in its use. And injury is an inherent risk of falling. Given the nature of the treadmill, it is also inherent in its use that if a person falls while the belt continues moving, that person will be ejected toward the back of the treadmill and be subjected to abrasions from the belt. In other words, the placement of the treadmill may have contributed to the severity of appellants injuries, but the placement did not increase the inherent risk that appellant might fall and be injured while using the treadmill. It follows that the trial court did not err in applying the concept of primary assumption of risk and granting summary judgment.
DISPOSITION
The judgment (order granting summary judgment) is affirmed. Costs are awarded to respondent.
I concur: VOGEL (C.S.), P.J., and EPSTEIN.
EPSTEIN, J., Dissenting.
This is a premises personal injury action, reaching us after a grant of full summary judgment to the defendant. As the majority opinion correctly recounts, the plaintiff was a guest at defendants hotel, where she used a treadmill exercise machine, provided by defendant, in the hotel fitness facility. While using the treadmill, she was distracted and fell. She was propelled off the rear of the machine by the moving treadmill belt. This particular machine was positioned so close to a wall to the rear of the machine that the plaintiff became trapped, unable to extricate herself. Because she was confined to this small area, her leg was continuously abraded by the moving belt.
Plaintiff makes no claim that defendant is responsible for her fall. (She does argue that the machine should have had a key that she could attach to her clothing, which would be pulled out by a fall, thus stopping the machine. But she offered no expert opinion evidence, or any evidence to support this theory, and the trial court properly disregarded it in deciding the summary judgment motion.) Her theory is not that she was injured by the fall, which she acknowledges is an inherent risk of exercise on a treadmill machine, a conclusion also urged by defendant. Instead, her principal (and only viable) argument is that the positioning of the machine created a trap. She was injured not by the fall, but by the foreseeable propulsion of her body off the rear end of the machine into a space too small to allow her to move her leg from the moving treadmill belt.
These facts do not require an extensive review of primary and secondary assumption of the risk, or the jurisprudence of Knight v. Jewett (1992) 3 Cal.4th 296, 834 P.2d 696, its companion case, Ford v. Gouin (1992) 3 Cal.4th 339, 834 P.2d 724, and their progeny. The doctrines stated in those cases protect defendant from liability for her fall. But as a patron of defendants hotel, plaintiff was owed a duty of care by defendant with respect to her use of exercise machinery made available to its patrons. Defendant was a "purveyor of recreational activities" and as such, "[owed] a duty to a patron not to increase the risks inherent in the activity . . . ." (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 482, 936 P.2d 70.)
The majority distinguish between injury caused by a fall, which is increased because of the nature of the fall, and injury caused by something else. For purposes of this discussion, I accept that distinction. The majority proceeds to reason that the circumstance that the plaintiff was trapped in the narrow space between the treadmill and the wall was simply an aggravating circumstance of her fall, for which the defendant is not answerable.
The majority bases its conclusion on Calhoon v. Lewis (2000) 81 Cal.App.4th 108. In that well-reasoned decision, a boy went to the defendants home to pick up a friend, with whom he planned to drive to the home of the friends girlfriend. While waiting for the friend, the boy skateboarded in the driveway of the defendants home. He lost control of his board and fell. In falling, he struck a metal pipe his friends father had erected in a planter. His significant injury occurred from striking the pipe; apparently without that circumstance, it would have been far less serious than it was. (Id. at p. 111.) The reviewing court affirmed the trial courts grant of summary judgment against the boy, based on the Supreme Courts recent assumption of the risk decisions. (Id. at p. 115.)
The majority find the facts of this case to be indistinguishable from Calhoon, except for the specific activity involved. I find them entirely inapposite. The plaintiff in Calhoon was using a driveway to skateboard, without anyones permission to do so. The plaintiff in this case was a business invitee using an exercise machine sited and provided by defendant for that purpose. The plaintiff in Calhoon was injured by the fall itself. The plaintiff in this case was not injured by her fall (or, at least, she has no cognizable claim for such injury as she may have suffered from the fall itself); her injury resulted from what happened to her after she fell: she was propelled off the machine into an area from which she could not move away and where her leg was injured by the continued operation of the machine.
Stated succinctly, plaintiffs cognizable injury is not from operation of the treadmill but from its positioning. That positioning, for which defendant is responsible as a "purveyor of recreational activities," increased the risk inherent in the exercise activity. This is sufficient, at least, to raise a triable issue of material fact, taking the case out of the primary assumption of risk doctrine.
For these reasons, I would reverse the summary judgment.