The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
15-308
THOMAS NEARHOOD
VERSUS
ANYTIME FITNESS—KINGSVILLE,
HAILEY WATERS, ANYTIME FITNESS, LLC,
PRECOR, INCORPORATED AND
THESE DEFENDANTS’ LIABILITY INSURERS
************
APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 248,664, DIVISION “B”
HONORABLE THOMAS M. YEAGER, DISTRICT JUDGE
************
JAMES T. GENOVESE
JUDGE
************
Court composed of Sylvia R. Cooks, James T. Genovese, and John E. Conery,
Judges.
Cooks, J., dissents and assigns written reasons.
AFFIRMED.
Ernie L. Vallery
525 Johnston Street
Alexandria, Louisiana 71301
(337) 442-6565
COUNSEL FOR PLAINTIFF/APPELLANT:
Thomas Nearhood
Keely Y. Scott
Catherine S. Giering
Ashley C. Wimberly
Donohue, Patrick & Scott, PLLC
450 Laurel Street, Suite 1600
Post Office Box 1629
Baton Rouge, Louisiana 70821-1629
(225) 214-1908
COUNSEL FOR DEFENDANT/APPELLEE:
Fitness Partners of Pineville, LA
Andrew D. Weinstock
Duplass, Zwain, Bourgeois, Pfister & Weinstock
3838 North Causeway Boulevard
Three Lakeway Center, Suite 2900
Metairie, Louisiana 70002
(504) 832-3700
COUNSEL FOR DEFENDANT/APPELLEE:
Precor Incorporated
GENOVESE, Judge.
In this personal injury case, Plaintiff, Thomas Nearhood, appeals the
judgment of the trial court granting summary judgment in favor of Fitness Partners
of Pineville, LA1 (Fitness Partners), one of the defendants in this litigation, finding
that Mr. Nearhood failed to meet his burden of proof relative to duty. For the
following reasons, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On October 22, 2012, Mr. Nearhood was seriously injured2 while exercising
on a Precor Smith Squat Machine at Anytime Fitness3 in Pineville, Louisiana. In
an attempt to recover for the personal injuries he sustained, Mr. Nearhood filed suit
against: Fitness Partners, the owner of Anytime Fitness; Precor Incorporated, the
manufacturer of the Precor Smith Squat Machine; and, the liability insurers of both
aforementioned defendants. Relative to his claims against Fitness Partners, Mr.
Nearhood alleged that the Precor Smith Squat Machine was a “dangerous
instrumentality” which Fitness Partners “negligently offered . . . for customer use”
and that Fitness Partners was “negligent in failing to instruct properly the plaintiff
and other members of the public in the proper use of the Precor Smith Squat
[M]achine.”
Fitness Partners filed a Motion for Summary Judgment contending that no
duty was breached on the part of Fitness Partners, that there was no genuine issue
of material fact, and that judgment was proper as a matter of law. The trial court
granted the Motion for Summary Judgment and dismissed Mr. Nearhood’s claims
1
Incorrectly named in Mr. Nearhood’s petition as Anytime Fitness—Kingsville.
2
Mr. Nearhood alleges that he suffered nerve damage and sexual, bowel, and bladder
problems.
3
Anytime Fitness provides 24/7 gym access to members.
against Fitness Partners. In granting summary judgment in favor of Fitness
Partners, the trial court gave oral reasons explaining its ruling as follows, in
pertinent part:
Under [La.Civ.Code art.] 2317.1, I do not believe that the
machine contained a defect which . . . presented an unreasonable risk
of harm to others.
At the time of the incident, the fitness equipment was in proper
working order, and there was nothing about the Smith machine that
led plaintiff to believe that it was not working correctly. And if he did
not think that it was not working correctly, then obviously Anytime
Fitness would not know of the defect, would not have known of it.
[Mr.] Nearhood’s testimony shows that the reason the bar fell
was because of his fault, that he was not paying close attention to the
machine and attempted to exit the machine before properly clicking
the weighted bar into place, and not because of a defect. He said in
his testimony, “I thought I had clicked the bar because there was a lot
of guys around, more than usual, making noise. And when you turn
the hooks over, it will click. Well, . . . I heard a click, and I thought it
was me. But it was one of them, obviously.” “And it was on your
shoulders when you let go?” “Yes.” “And that’s what drove you to
the ground?” “Right.”
I also believe that based upon what I read in [Thomas v. Sport
City, Inc., 31,994 (La.App. 2 Cir. 6/16/99), 738 So.2d 1153], that he
was a sophisticated user. And . . . Summary Judgment says, “The
mover’s burden does not require him to negate all essential elements
of the adverse party’s claim, action or defense, but rather to point out
that there’s an absence of factual support for . . . one or more elements
essential to the adverse party’s claim, action or defense. Thereafter, if
the adverse party fails to produce factual support sufficient to
establish that he will be able to satisfy his evidentiary burden at trial,
there is no genuine issue of material fact.”
I find that the Mover has pointed out that there is an absence of
factual support for one or more elements . . . essential to the
petitioner’s claims. The adverse party, the petitioner, has failed to
produce factual support sufficient to establish that he will be able to
satisfy his burden of proof at trial. And, therefore, there’s no genuine
issue of material fact.
Therefore, the Motion for Summary Judgment by Fitness
Partners is granted, at the petitioner’s costs.
Mr. Nearhood appeals.
2
ASSIGNMENTS OF ERROR
In his appeal, Mr. Nearhood assigns the following assignments of error for
our consideration:
This Court for the following reasons should reverse the lower
Court ruling that Fitness Partners owed Mr. Nearhood no duty to
inform him about the safety stops—a primary safety feature of the
Smith Squat machine:
[The trial court] erred in finding that Fitness Partners
established an absence of factual support disqualifying
Plaintiff as a [Thomas] Court “sophisticated user[.”]
Further, the [trial court] erred in finding that Mr.
Nearhood failed to establish sufficiently his ability to
prove at trial his disqualification as a “sophisticated
user[.”]
LAW AND DISCUSSION
The appropriate standard of review to be applied by an appellate court
relative to a motion for summary judgment has been stated as follows:
When an appellate court reviews a district court’s judgment on
a motion for summary judgment, it applies the de novo standard of
review, “using the same criteria that govern the trial court’s
consideration of whether summary judgment is appropriate, i.e.,
whether there is a genuine issue of material fact and whether the
mover is entitled to judgment as a matter of law.” Supreme Serv. &
Specialty Co., Inc. v. Sonny Greer, 06-1827, p. 4 (La.5/22/07), 958
So.2d 634, 638.
A motion for summary judgment shall be granted when “the
pleadings, depositions, answers to interrogatories, and admission on
file, together with the affidavits, if any, show that there is no genuine
issue of material fact, and that the mover is entitled to judgment as a
matter of law.” La.Code Civ.P. art. 966. “[I]f reasonable persons
could only reach one conclusion, then there is no need for trial on that
issue and summary judgment is appropriate.” Hines v. Garrett, 04-
806, p. 1 (La. 6/25/04), 876 So.2d 764, 765-66 (quoting Smith v. Our
Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d
730, 751). A fact is “material” when “its existence or nonexistence
may be essential to plaintiff’s cause of action under the applicable
theory of recovery.” Smith, 639 So.2d at 751.
3
Ravey v. Rockworks, LLC, 12-1305, pp. 2-3 (La.App. 3 Cir. 4/10/13), 111 So.3d
1187, 1189-90.
The issues raised by Mr. Nearhood on appeal deal with duty and whether
genuine issues of material fact exist relative thereto. Mr. Nearhood argues that
Fitness Partners has not established it is entitled to summary judgment because it
has not shown that he is a sophisticated user. He contends Thomas, 738 So.2d
1153, is not applicable.
A sophisticated user is defined as one who is “familiar with the
product,” Hines v. Remington Arms Co., Inc., 94-455, p. 10
(La.12/8/94), 648 So.2d 331, 337, or as one who “possesses more than
a general knowledge of the product and how it is used.” Asbestos v.
Bordelon, Inc., 96-525, p. 44 (La.App. 4 Cir. 10/21/98), 726 So.2d
926, 955. As a result of their familiarity with a product, sophisticated
users are presumed to know the dangers presented by the product;
hence, there is no duty to warn them. Hines, 648 So.2d 331.
Bates v. E.D. Bullard Co., 11-187, p. 5 (La.App. 3 Cir. 10/5/11), 76 So.3d 111,
114.
“Duty is a question of law. Simply put, the inquiry is whether
the plaintiff has any law--statutory, jurisprudential, or arising from
general principles of fault--to support his claim.” Faucheaux v.
Terrebonne Consol. Government, 615 So.2d 289, 292 (La.1993). The
duty owed to an invitee “is that of reasonable and ordinary care,
which includes the prior discovery of reasonably discoverable
conditions of the premises that may be unreasonably dangerous, and
correction thereof or a warning to the invitee of the danger.”
Alexander v. Gen. Acc. Fire & Life Assur. Corp., 98 So.2d 730, 732
(La.App. 1 Cir.1957). “[M]embers of [gyms] are owed a duty of
reasonable care to protect them from injury on the premises.”
Thomas[, 738 So.2d at 1157]. “This duty necessarily includes a
general responsibility to ensure that their members know how to
properly use gym equipment.” Id.
Ravey, 111 So.3d at 1190.
The facts herein are not in dispute. Thus, we must determine whether or not
the trial court was correct in its determination that Mr. Nearhood knew the dangers
presented by the equipment on which he was exercising when he was injured. If
4
so, Fitness Partners had no duty to warn Mr. Nearhood, and Fitness Partners is
entitled to judgment as a matter of law.
Fitness Partners asserts that Mr. Nearhood admitted in his deposition to
voluntarily executing a “Membership Agreement” and an “Equipment and
Facilities Polices” agreement, with an understanding of each agreement’s terms
and conditions, at the onset of his gym membership. According to Fitness
Partners, the “Membership Agreement” contains a “Member Assumption of Risk
and Release” provision. Relying upon Thomas, 738 So.2d 1153, Fitness Partners
alleges that the evidence proves Mr. Nearhood qualifies as a sophisticated user of
the squat machine; therefore, Mr. Nearhood cannot not satisfy the elements of his
negligence claim—specifically, the element of duty—at trial. Fitness Partners
contends that it was entitled to judgment as a matter of law.
Mr. Nearhood admits he began weight lifting in 2000, twelve years before
the accident in question. He admits he used squat machines similar to the Precor
Smith Squat Machine in 2009, three years before the accident in question. He also
admits he began using the Precor Smith Squat Machine, on which he was injured,
on a regular basis, at least three to four times a week, approximately nine months
before the accident. Yet, Mr. Nearhood contests the trial court’s reliance upon
Thomas, 738 So.2d 1153, to designate him a sophisticated user. He argues:
Whereas Thomas testified that he knew how to operate safely the
Hack, Mr. Nearhood testified that he did not know how safely to use
the Smith machine. In fact, of the function and operation of the Smith
machine’s safety stops, he testified that he knew nothing, that the gym
never instructed him about deploying the stops, and that he had never
knowingly seen any gym management, gym personnel, gym patron, or
anyone else deploy a Smith machine’s safety stops.
5
Based on our review of the record, we find Mr. Nearhood’s assertions do not
withstand either the second circuit’s holding in Thomas, 738 So.2d 1153, nor this
court’s more recent pronouncement in Ravey, 111 So.3d 1187.
In Thomas, 738 So.2d 1153, the second circuit reversed the trial court and
found the health club owner could not be liable for plaintiff’s injuries, although the
owner had neither instructed nor supervised the plaintiff in the use of the exercise
equipment. The appellate court explained:
It is uncontested that Sport City had not instructed or
supervised plaintiff in the use of the hack squat machine. This
normally would be a breach of duty by Sport City as this machine
could easily cause injury if not properly used. Plaintiff, however,
testified that he knew how to use the machine and did not feel it was
necessary for him to be shown how to the use the hack squat machine.
Plaintiff stated that he had seen others using the machine and that he
was comfortable that he knew how to properly operate the equipment.
He again conceded that the carriage would not have fallen had he
properly latched the hook over the peg.
Under the particular facts and circumstances of this case, we
find that Sport City’s failure to warn or instruct plaintiff in the proper
use of the hack squat machine was not a cause of plaintiff’s accident
and injury. It was known or understood by plaintiff, a sophisticated
user of the exercise machine, that the hook had to be completely over
the peg to lock the carriage and prevent it from falling. Therefore,
instruction or warning would have served no purpose. The trial court
clearly erred in finding Sport City at fault.
Id. at 1158.
In Ravey, 111 So.3d 1187, this court upheld the trial court’s dismissal of
plaintiff’s claim against an owner of a rock-climbing facility pursuant to summary
judgment. This court reasoned:
We note that rock climbing is a recreational activity that
involves substantial risk. Many other recreational activities such as
weight lifting and swimming also involve a substantial degree of risk.
The risk associated with these and other physically-challenging sports
are well recognized. The duty on the gym operator, when these types
of sports are conducted, is that of providing a sound and secure
environment for undertaking a clearly risky form of recreation and not
6
that of removing every element of danger inherent in rock climbing,
weight lifting, or swimming. The duty imposed on the gym is one of
reasonable care under the circumstances.
Id. at 1192. Summary judgment was affirmed due to the “total absence of
evidence” suggesting that “the duty of [the rock climbing facility] to provide
training and supervision was not done reasonably under the circumstances.” Id. at
1193. In this case, the evidence is similar.
Fitness Partners operates an unsupervised health facility which offers fitness
training and fitness coaches to its members upon request. Mr. Nearhood accepted
the terms of his membership and admits that he did not request additional services
for fitness training or for a fitness coach. He described the accident as occurring
when he attempted to exit the Precor Smith Squat Machine after hearing what he
believed was the sound of his weights clicking back into their secured position.
His testimony clearly demonstrates that he is familiar with how to properly secure
the weights; however, this simply did not occur. Mr. Nearhood was mistaken, and,
unfortunately, his injuries are the consequence of that mistake. The evidence
clearly does not support Mr. Nearhood’s allegations that his injuries are the result
of Fitness Partners’ failure to inform him about the equipment’s safety stops.
Having conducted a de novo review, we find that there is no genuine issue of
material fact relative to duty on the part of Fitness Partners. Fitness Partners, as
the moving party, satisfied its burden of proving that there is an absence of factual
support relative to duty, and, thus, Fitness Partners is entitled to summary
judgment as a matter of law.
7
DECREE
For the foregoing reasons, we affirm the trial court’s grant of summary
judgment in favor of Fitness Partners. Costs of this appeal are assessed to
Plaintiff/Appellant, Thomas Nearhood.
AFFIRMED.
8
.
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
15-308
THOMAS NEARHOOD
VERSUS
FITNESS PARTNERS OF PINEVILLE, ET AL.
COOKS, J., dissenting.
I respectfully dissent from the majority’s affirmance of the grant of summary
judgment in this unfortunate situation. I find there are genuine issues of material
fact which preclude summary judgment in this case.
Although on its face, it may appear the “sophisticated user” exception set
forth in Thomas may apply in this case, I find there are factual differences in the
present case that present a legitimate dispute as to whether Mr. Nearhood was a
sophisticated user of the machine that caused the injury. It was established in
Thomas that the operator of the machine in question “could easily feel or see the
handles to determine whether the hook was fully engaged over the peg.” It was
also determined that Mr. Thomas “was an experienced and sophisticated user of
the health club’s equipment, including the hack squat machine (which the court in
Thomas found he had used ‘hundreds if not thousands of times’).” Thus, it was
unequivocally established Mr. Thomas was intimately familiar with the machine he
was using when injured. The facts are not as clear in the present case.
Mr. Nearhood notes normal use of the Smith machine does not allow for the
user to see the locking action of the hooks securing the weights. Apparently, the
only way to know the weight is secured is to hear a clicking sound, which Mr.
Nearhood believed he did hear, but now realizes the sound was likely a nearby
machine. Thus, there are additional “failsafe” devices on the machine to prevent
the tragic accident that occurred. These additional devices are especially placed in
the event a user does not properly secure the weight on the locking hook.
However, Mr. Nearhood testified he was unaware of these safety measures. He
stated “I didn’t know they existed.” I note the questioning of counsel for Fitness
Partners acknowledges Mr. Nearhood was unfamiliar with the safety devices:
Q. But you never asked about safety devices?
A. Why would I? I had never seen them. I had never seen
them used.
Q. But you’re a smart guy. You know that dangerous things
sometimes have things that make it less dangerous. Why didn’t you
think to ask whether or not there were safety devices?
A. If I would have seen somebody else using them, I might
have. In fact, I probably would have.
Q. But it never occurred to you to ask?
This exchange, in my view, clearly belies Fitness Partner’s attempts to
classify Mr. Nearhood as a sophisticated user. At a minimum, it certainly creates a
question of fact that should have precluded summary judgment in this case.
Therefore, I dissent and would reverse the grant of summary judgment and remand
the case for further proceedings.
2