Opinion
B301022
02-23-2021
CYNTHIA MACADAMS, Plaintiff and Appellant, v. YMCA OF METROPOLITAN LOS ANGELES, Defendant and Respondent.
Zelner & Karpel and Donald E. Karpel, for Plaintiff and Appellant. McCune & Harber, Stephen M. Harber and Kevin E. Mueller for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BC 646436) APPEAL from a judgment of the Superior Court of Los Angeles County, Christopher K. Lui, Judge. Affirmed. Zelner & Karpel and Donald E. Karpel, for Plaintiff and Appellant. McCune & Harber, Stephen M. Harber and Kevin E. Mueller for Defendant and Respondent.
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Plaintiff and appellant Cynthia MacAdams tripped and fell over a gap in the floor of the sauna at the Hollywood location of defendant and respondent YMCA of Metropolitan Los Angeles (the YMCA). The trial court granted summary judgment in favor of the YMCA in MacAdams's personal injury suit on the grounds that MacAdams signed a waiver absolving the YMCA of liability for negligence, and that she had failed to create a triable question of material fact on gross negligence. MacAdams contends that this was error. We disagree and affirm.
FACTS AND PROCEEDINGS BELOW
Because this is an appeal of a grant of summary judgment in favor of defendants, we describe the evidence "in the light most favorable to the opposing party," MacAdams. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).)
MacAdams signed a release and waiver of liability when she joined the Hollywood YMCA in 2011. Under the terms of this document, MacAdams "release[d], waive[d], discharge[d] and covenant[ed] not to sue the YMCA . . . from all liability . . . for any loss or damage, and any claim or demands on account of injury . . . caused by the negligence, active or passive, of" the YMCA and its employees, directors, officers, volunteers, and agents. (Capitalization omitted.)
The flooring of the women's sauna room at the Hollywood YMCA consists of two separate platforms made of wood slats on top of a concrete base. The two platforms can be lifted and pushed apart for cleaning, but are meant to be pushed back together once cleaning is finished. There is only one lighting fixture in the sauna, and the room is not well lit.
On February 22, 2015, MacAdams, who was lying down on a bench in the sauna, prepared to leave. As she put her feet on the floor, her bare right foot went into a gap between the boards on the floor, causing her to fall onto her right side. She had not previously noticed the gap between the boards. MacAdams, who was 75 years old at the time, cut her hand, requiring 20 stitches, tore her rotator cuff, and suffered injuries to her neck and lower spine that required surgery to repair. The following day, MacAdams returned to the sauna and saw a gap of approximately three inches between wood slats on the floor where she had fallen. She took photos showing a series of wooden boards with a missing space in between.
According to Martin Espinoza, the facilities director of the YMCA, the gap shown in the photograph did not indicate that a wooden slat was missing, but rather that the two platforms had not been pushed back together. According to Espinoza, the floor as depicted in MacAdams's photo is "not the way it's supposed to be."
Espinoza testified that maintenance employees checked the floorboards in the morning to make sure they were properly placed. In addition, employees went to the sauna area every 15 to 30 minutes while the facility was open to move towels in and out of the sauna and inspect the area. The YMCA did not maintain records documenting when its employees cleaned and inspected the sauna area.
On January 12, 2017, MacAdams filed a personal injury complaint, alleging that the YMCA negligently allowed a dangerous condition to exist in the women's sauna, proximately causing MacAdams to be injured. The YMCA filed a motion for summary judgment, contending that by signing the waiver, MacAdams assumed the risk of the YMCA's negligence. Although the waiver did not absolve the YMCA of gross negligence, the YMCA contended that the actions MacAdams alleged did not rise beyond ordinary negligence.
Along with her opposition to the motion for summary judgment, MacAdams submitted a declaration from Frank Smith, a purported expert witness in the sauna industry. Smith opined that "the operation of the sauna by the Hollywood YMCA with the gap in the wood flooring as shown in" the photograph "was grossly deficient and well below the standard of care practiced by sauna operators," and the operation of the sauna with a gap shown in the photograph "constitutes gross negligence in my mind."
According to Smith, "[t]he standard custom and practice in the sauna industry requires that there be no missing floor boards or slats when the sauna is in use. Custom and practice also dictate that any gaps between the floor boards or slats be consistent as between each other, and not wider than a maximum of 1/2 inch." In addition, Smith stated that industry standards "require that sauna rooms be checked by staff or employees every 15 to 20 minutes for safety," and that a failure to perform the inspections, or to notice and respond to a gap in the flooring, would be "a breach of the standards of the sauna industry."
The trial court granted the motion for summary judgment. The court found that the waiver was sufficient to absolve the YMCA of ordinary negligence, and that MacAdams had not introduced evidence to create a triable question of material fact as to whether the YMCA's actions rose to gross negligence. The court rejected Smith's declaration because the documents Smith had relied on were not lodged with the court.
DISCUSSION
MacAdams contends that the trial court erred by excluding the declaration of her expert witness, and by finding that she had failed to raise a triable question of material fact as to gross negligence. We disagree. With or without Smith's testimony, the conduct MacAdams alleges was no more than ordinary negligence, and the trial court correctly granted summary judgment in favor of the YMCA.
A. Basic Principles of Law
Summary judgment is proper when there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 370; Aguilar, supra, 25 Cal.4th at p. 843; Code Civ. Proc., § 437c, subd. (c).) A defendant moving for summary judgment bears an initial burden of showing that one or more elements of the plaintiff's cause of action cannot be established or that there is a complete defense to that cause of action. (Nealy v. City of Santa Monica, supra, 234 Cal.App.4th at p. 370; Aguilar, supra, 25 Cal.4th at p. 849.) If the defendant meets this burden, the plaintiff has the burden to demonstrate one or more triable issues of material fact as to the cause of action or defense. (Aguilar, supra, at p. 849.) A triable issue of material fact exists "if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof." (Id. at p. 850.)
In reviewing summary judgment, "[w]e review the trial court's decision de novo, liberally construing the evidence in support of the party opposing summary judgment and resolving doubts concerning the evidence in favor of that party." (State of California v. Allstate Ins. Co. (2009) 45 Cal.4th 1008, 1017-1018.) When we consider "any determination underlying the order granting summary judgment," we review the trial court's decision "under the standard appropriate to that determination." (See Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.) For example, we review the trial court's decision to exclude an expert's testimony at the summary judgment stage for abuse of discretion. (See ibid.)
B. Gross Negligence
The parties agree, as do we, that the waiver MacAdams signed when she joined the Hollywood YMCA was sufficient to absolve the YMCA of liability for ordinary negligence, but not gross negligence, in its operation of the facility. We interpret a waiver or release in the same way as any other contract (see Hass v. RhodyCo Productions (2018) 26 Cal.App.5th 11, 26-27 (Hass)), and in this case, the plain language of the release absolved the YMCA of liability for damages "caused by the negligence, active or passive, of" the YMCA and its employees. As a matter of public policy, however, a waiver in the context of sports or recreational programs or services cannot preclude liability for gross negligence. (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 750-751 (Santa Barbara).)
" 'Gross negligence' " long has been defined in California and other jurisdictions as either a ' " 'want of even scant care' " ' or ' " 'an extreme departure from the ordinary standard of conduct.' " ' [Citations.]" (Santa Barbara, supra, 41 Cal.4th at p. 754.) It " ' "differs from ordinary negligence only in degree, and not in kind." ' " (Hass, supra, 26 Cal.App.5th at p. 32.) In most cases " 'it is a triable issue of fact whether there has been such a lack of care as to constitute gross negligence' " (id. at p. 33), but this does not prevent a trial court from granting summary judgment on the issue where the opposing party has failed to create a triable question of material fact. (See, e.g., Anderson v. Fitness Internat., LLC (2016) 4 Cal.App.5th 867, 881-882 (Anderson); Grebing v. 24 Hour Fitness USA, Inc. (2015) 234 Cal.App.4th 631, 639.) In order to defeat a motion for summary judgment where a release bars liability for ordinary negligence, the plaintiff bears the burden to produce evidence creating a triable issue of material fact on gross negligence. (Anderson, supra, at pp. 878-880.)
The court in Anderson reviewed the relevant case law and drew the following distinction, which we find useful in considering this case: First, "conduct demonstrating the failure to guard against, or warn of, a dangerous condition typically does not rise to the level of gross negligence." (Anderson, supra, 4 Cal.App.5th at p. 881.) On the other hand, "conduct that substantially or unreasonably increased the inherent risk of an activity or actively concealed a known risk," as well as "conduct that evinces an extreme departure from manufacturer's safety directions or an industry standard . . . could demonstrate gross negligence." (Ibid.)
The defendant's conduct in Anderson fell in the first category, and therefore summary judgment was appropriate. The plaintiff was a member of a health club who had slipped and fallen in the shower on two previous occasions and had informed the club each time about the dangerous condition of the shower room. (Anderson, supra, 4 Cal.App.5th at p. 871.) The club had still not installed handrails, shower mats, or friction strips in the shower when the plaintiff fell a third time, seriously injuring himself. (Ibid.) The court reasoned that there was no evidence that the condition of the shower was significantly different from what one would expect in a health club shower room, nor that the health club knowingly concealed a dangerous condition. (Id. at pp. 881-882.)
By contrast, the court in Eriksson v. Nunnink (2011) 191 Cal.App.4th 826 reversed a grant of summary judgment in favor of a defendant equestrian coach for injuries suffered by a 17-year-old girl who rode an injured horse in competition. Although the girl's parents had signed a release, the court held that there was a triable question of material fact on gross negligence because the plaintiffs had presented evidence that the coach knew about the horse's injuries and affirmatively concealed them. (See id. at p. 857.)
This case falls in the first category, with Anderson. The YMCA was guilty at most of failing to guard against or warn of a potentially dangerous condition in their sauna. There is no evidence that the YMCA increased the risk of a dangerous activity or willfully concealed a danger from MacAdams.
Even if we assume for the sake of argument that MacAdams is correct that the trial court abused its discretion by excluding Smith's declaration, the contents of the declaration do not alter our analysis. First, Smith's opinion that the operation of the sauna with a gap in the flooring "constitutes gross negligence in my mind" was inadmissible as a conclusion of law. (See Willhide-Michiulis v. Mammoth Mountain Ski Area, LLC (2018) 25 Cal.App.5th 344, 355.) Further, although expert testimony may be useful "to inform [the court's] decision . . . , particularly on the nature of an unknown or esoteric activity" (id. at p. 354), that was of little value in this case. The danger of a three-inch gap in the floor of a sauna is apparent without the aid of an expert.
MacAdams attempts to use Smith's declaration to show that the YMCA violated industry standards. As the court noted in Anderson, "conduct that evinces an extreme departure from manufacturer's safety directions or an industry standard . . . could demonstrate gross negligence." (Anderson, supra, 4 Cal.App.5th at p. 881.) But the source of the standards Smith relied on is not clear. Smith claims that he spent years selling and designing saunas and sauna equipment, but this would not necessarily yield expertise on the question of maintaining the equipment, nor how often and how thoroughly the industry requires employees to search for defects while the sauna is occupied and in use.
In addition, cases where a departure from industry standards allows for a finding of gross negligence differ from this case because they involve serious deficiencies with inherently dangerous equipment. For example, in Jimenez v. 24 Hour Fitness USA, Inc. (2015) 237 Cal.App.4th 546, the evidence indicated that the health club had set up exercise equipment within four feet of the back of its treadmills, failing to maintain a manufacturer-recommended safe zone of six feet. (Id. at pp. 550-551.) The plaintiff fell off the back of a treadmill and hit her head on one of the nearby exercise machines. (See id. at p. 549.) The court reasoned that a jury could find that the defendant had been grossly negligent by failing to follow the manufacturer's directions. (Id. at pp. 556-557.) In another case involving defective exercise equipment, Chavez v. 24 Hour Fitness USA, Inc. (2015) 238 Cal.App.4th 632, the court held that a triable question of material fact as to gross negligence existed where there was evidence that the defendant health club had not performed preventative maintenance on a cross-trainer machine, and as a result, a panel of the machine flew off and injured the plaintiff. (Id. at pp. 640-642.) Similarly, in Kim v. County of Monterey (2019) 43 Cal.App.5th 312, the court held that the defendants could be liable for gross negligence for the placement of sandbags around a racetrack that caused the plaintiff to be injured in a motorcycle accident. (See id. at pp. 328-330.)
In this case, by contrast, the evidence shows only that the YMCA's employees failed to notice a three-inch gap in the wood floor of the sauna, despite YMCA policy requiring that they check on the condition of the sauna frequently. Even if we interpret all the evidence in favor of MacAdams as the non-moving party, this amounted to no more than ordinary negligence. No reasonable factfinder could infer that the deficiency was such a drastic failure to meet industry standards as to represent " ' " 'want of even scant care' " ' or ' " 'an extreme departure from the ordinary standard of conduct.' " ' " (Santa Barbara, supra, 41 Cal.4th at p. 754.) In Santa Barbara, our Supreme Court "emphasize[d] the importance of maintaining a distinction between ordinary and gross negligence, and of granting summary judgment on the basis of that distinction in appropriate circumstances." (Id. at p. 767.) To maintain that distinction requires us to affirm the trial court's grant of summary judgment in this case.
DISPOSITION
The judgment of the trial court is affirmed. Respondent is awarded its costs on appeal.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J. We concur:
CHANEY, J.
Judge of the San Luis Obispo County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.