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11th District reverses Lake County negligence case
TRACEY BLAIR
Legal News Reporter
Published: July 13, 2021
A woman who suffers from osteoporosis sued a Lake County exercise facility after becoming injured there.
Plaintiff Beatrice Oliveri argued OsteoStrong’s written waiver was ambiguous and therefore invalid. She also alleged she did not assume the risk of her injuries and that genuine issues of material fact remained as to whether the OsteoStrong program is inherently dangerous.
The trial court held that summary judgment in favor of OsteoStrong was warranted on the grounds of waiver and express assumption of the risk, finding the waiver clear and unambiguous. However, the 11th District Court of Appeals recently reversed and remanded the trial court’s decision.
In May 2016, Oliveri was given two free sessions to work out at OsteoStrong after attending a presentation at a senior center. Before she went to the facility, Oliveri consulted her doctor who advised her to be careful.
At her first session, Oliveri completed a wellness assessment that includes participant information and a release from liability. After signing the assessment, Oliveri met with an instructor and told him that she was afraid to try the exercises. The instructor assured her that the program was “completely different” and “there was minimal, very minimal risk,” according to appellate records.
Oliveri completed the first session in two to five minutes and experienced no pain. At her second session, which consisted of four exercises, Oliveri’s instructor told her to repeat the fourth exercise and to “do it harder, harder.” When Oliveri attempted to do so, she felt and heard a “pop” that took her breath away. She was eventually diagnosed with a thoracic compression fracture.
Oliveri filed suit against OsteoStrong, alleging the company was negligent by failing to warn of a known dangerous condition; by failing to instruct her on the use of the machine; by allowing its employees,
agents, and consumers to use dangerous machines; by failing to supervise employees on the proper methods to use the machines; and by failing to inspect and maintain the equipment.
The appellate court first addressed Oliveri’s claim that the contract language does not mention negligence or liability and that “physical anguish” has more than one meaning.
In his 3-0 opinion, 11th District Judge Thomas R. Wright noted the waiver states, “I waive my right to pursue legal action against OsteoStrong, its owners, partners, and agents for any physical or mental anguish that I may incur as a result of my participating with the OsteoStrong system.”
The trial court read this clause as waiving actions for physical and mental “injury” through its use of the term “anguish,” but the words clearly have different meanings, Judge Wright stated.
He pointed out that the Merriam-Webster Dictionary defines “anguish” as “extreme pain, distress, or anxiety,” while ““Injury” is defined as “hurt, damage, or loss sustained,” “an act that damages or hurts,” or “a violation of another’s rights for which the law allows an action to recover damages.”
Judge Wright added, “Although we recognize that a waiver need not use the word ‘negligence’ to effectively waive such a claim, the waiver at issue here is ineffective by its own terms to waive a negligence action, as damages in negligence are not required to rise to the level of ‘anguish’ to be recoverable. Oliveri’s assigned errors have merit because the release language does not waive and release OsteoStrong from claims for all injury.”
According to her testimony, Oliveri was injured while exercising on an OsteoStrong machine under an OsteoStrong employee’s supervision while correctly performing the exercise.
“There is no evidence that she was injured as a result of a danger inherent in the exercise or of some inherent danger faced while working out at a gym,” the appellate judge stated. “Oliveri was not injured after stumbling off a treadmill, from an unsecured weight falling on her foot, or from getting hit by an errant ball. Because she was not injured by a danger ordinary to the sport or exercise, we disagree that the doctrine of primary assumption of the risk applies to these facts, and as such, summary judgment on this basis was not warranted.”
Eleventh District judges Mary Jane Trapp and Cynthia Westcott Rice concurred. The case is cited Oliveri v. OsteoStrong, 2021-Ohio-1694.