Case Number: BC713314 Hearing Date: September 17, 2019 Dept: 4B

[TENTATIVE] ORDER RE: DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

Plaintiffs Jennifer Newman and Brody Newman filed this action against Defendant Ultra Body Wellness, LLC for general negligence and negligent infliction of emotional distress. Plaintiff claims that, as a result of Defendant’s negligence during a cryotherapy session, she suffered second degree burns on her right thigh with numbness, tingling and pain, and numbness in her pinky finger. Defendant moves for summary judgment.

II. LEGAL STANDARDS

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“[T]he initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) A moving defendant need not conclusively negate an element of plaintiff’s cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) It is insufficient for the defendant to merely point out the absence of evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.” (Ibid.) The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken. (Aguilar, supra, 25 Cal.4th at p. 855.)

“Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

III. DISCUSSION

Defendant moves for summary judgment on grounds that Plaintiff’s claims are barred by express assumption of risk as Plaintiff signed a release that expressly exculpated Defendant from liability.

The defense of express assumption of risk arises when a plaintiff has signed a contract or other writing waiving the risks that might arise from the defendant’s acts or omissions, thus relieving the defendant of the duty of care. (Von Beltz v. Stuntman, Inc. (1989) 207 Cal.App.3d 1467, 1477 fn. 3.) For an express release of liability to be enforceable against a plaintiff (1) the release agreement “must be clear, unambiguous and explicit in expressing the intent of the parties [citation omitted];” (2) the injury-producing act “must be reasonably related to the object or purpose for which the release is given [citation omitted];” and (3) the release cannot contravene public policy. (Sweat v. Big Time Auto Racing, Inc. (2004) 117 Cal.App.4th 1301, 1304-05.) “Where . . . no conflicting parol evidence is introduced concerning the interpretation of the document, ‘construction of the instrument is a question of law, and the . . . court will independently construe the writing.’” (YMCA of Metropolitan Los Angeles v. Superior Court (1997) 55 Cal.App.4th 22, 26.)

The User Agreement signed by Plaintiff contains a release of liability and waiver of all claims arising out of the customer’s use of whole body cryotherapy. It is undisputed that Plaintiff’s injuries and claims arise from her use of cryotherapy. Defendant has thus met its burden of demonstrating that the express release and waiver of liability provision in the User Agreement bars Plaintiff’s negligence claims.

Plaintiff argues she has pled gross negligence, and a waiver cannot release a defendant for gross negligence. (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 777.) Ordinary negligence is an unintentional tort that “consists of a failure to exercise the degree of care in a given situation that a reasonable person under similar circumstances would employ to protect others from harm.” (Id. at pp. 753-54.) Gross negligence is “want of even scant care” or “an extreme departure from the ordinary standard of conduct.” (Id. at p. 754 (citation omitted).) “Generally it is a triable issue of fact whether there has been such a lack of care as to constitute gross negligence [citation] but not always.” (Chavez v. 24 Hour Fitness USA, Inc. (2015) 238 Cal.App.4th 632, 640.)

Plaintiff has submitted sufficient evidence to demonstrate that triable issues of material fact exist as to whether Defendant was grossly negligent. Defendant’s employees were trained in the use of the machine and were told to instruct the customer to wear gloves and underwear. The operators were trained to instruct the customer to let them know if they were uncomfortable so that the machine could be stopped and to communicate with the customer while the customer was in the machine to ensure the customer was okay. The operators were also trained to keep the participant’s head above the cryosauna top-cap and told that telling someone to put their head down into the gas could result in terrible consequences. The safety rules give settings for different types of participants, ranging from 2 to 3 minutes in terms of duration and 1 to 3 in terms of level. The safety rules also indicated that operators should instruct the participant to slowly rotate throughout the session and that operators should stop the session at any time the participant appears distressed. The safety rules state that the session should be stopped immediately if the participant experiences discomfort or pain.

Defendant’s employee testified that each customer is given slippers, a robe, socks, and gloves and that the gloves were to protect the customer from the cold and were not optional. He testified that the customer was supposed to wear underwear or swim gear in the machine. He testified that for Plaintiff’s session, he used level 1 for two minutes because it was Plaintiff’s first time. (Id., p. 53-54.

However, Plaintiff sets forth a different account of her session. According to Plaintiff, the employee did not tell her to put on clothes or gloves before she got into the machine. He only told her to try the gloves after she said her hand and fingers really hurt at about a minute and a half into her session. He did not tell her to keep moving while in the machine. During her session, she was experiencing discomfort but did not ask for the machine to be turned off until she could no longer bear it at the six-minute mark because the employee encouraged her to stay in as long as she possibly could. The employee did not tell her to keep her head up or chin lifted and instead told her that some people would put their head down for benefits to their facial skin. She ducked her head down for a second after he indicated she should do so if she wanted to see what it felt like.

Plaintiff’s account of her session establishes the existence of issues of material fact about whether Defendant’s employee disregarded several safety procedures. A factfinder could reasonably find that these deviations from the safety procedures were an extreme departure from the ordinary standard of conduct. Plaintiff has thus met her burden of demonstrating triable issues of material fact exist as to whether Defendant was grossly negligent.

Given Plaintiff has met her burden based on her gross negligence argument, the Court need not address whether there are triable issues of material fact as to the validity of the release.

V. CONCLUSION

Based on the foregoing, Defendant’s Motion for Summary Judgment is DENIED.

Moving party to give notice.