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In this personal injury case, Horvitz & Levy LLP obtained a writ of mandate from the Court of Appeal, directing the trial court to vacate its order denying summary judgment and enter a new order granting summary judgment for defendant 24 Hour Fitness.  The Court of Appeal determined that the liability release signed by the decedent was enforceable because no reasonable jury could conclude 24 Hour Fitness acted with gross negligence in not calling 911 sooner.

Terry Austin came to the attention of a 24 Hour Fitness trainer when a patron noticed him in apparent distress, leaning over a bank of lockers and perspiring heavily.  The trainer talked with Mr. Austin, who said that he could not get his heart rate to go down.  The trainer asked two other employees to escort Austin to the break room and stay with him while he cooled down.  As Mr. Austin started walking, he mistakenly picked up another gym patron’s cell phone and water bottle.  This evidence of confusion prompted the trainer to ask another trainer to call 911, but the second trainer did not call 911.

Mr. Austin remained in the break room for 10 to 15 minutes with the 24 Hour Fitness employees.  Mr. Austin did not ask that 911 be called for him, or reveal that he had recently seen a cardiologist for heart problems.  Mr. Austin texted his wife and arranged for her to pick him up.  When Mr. Austin’s wife arrived about 10 minutes later, she was met by a 24 Hour Fitness employee who asked her to call 911 before entering the break room.

As Mr. Austin’s wife spoke to the 911 operator, Mr. Austin’s condition deteriorated rapidly.  Mr. Austin collapsed.  The trainer summoned a doctor who was in the gym as a patron, and a 24 Hour Fitness employee began CPR under the doctor’s supervision.  The paramedics arrived a few minutes later.  Mr. Austin arrived at the hospital with a pulse but died five days later, never having regained consciousness after his cardiac arrest.

Plaintiffs’ primary theory was that if 911 had been called when the trainer had suggested it, the paramedics would have arrived sooner and Mr. Austin would not have died.  Although the trial court initially determined that plaintiffs could proceed to trial, the Court of Appeal agreed with 24 Hour Fitness’s argument that the release Mr. Austin signed absolved it from liability for any ordinary negligence, and that its actions could not have constituted gross negligence as a matter of law.