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In this slip and fall case, Horvitz & Levy LLP persuaded the California Court of Appeal to reverse a $1.8 million judgment against our client, Club One Health Club.

Plaintiff David Finley, a Club One member, brought a personal injury action after he slipped and fell while playing basketball at the health club. The night before, the club’s janitorial service had applied stainless steel polish to the basketball court, making it extremely slippery. Several months before his fall, Finley heard that the club was offering lower monthly fees to new members and asked the club’s manager if it would reduce his own monthly fees. As he was leaving the club the manager handed him a two sided document entitled “Membership Agreement” and told him that if he signed it on the front and initialed it on the back the club would lower his monthly fees as well. The back of the document contained a boxed paragraph entitled “liability waiver and agreement to arbitrate.” It waived any claims for liability arising out of Club One’s negligence and required that any claims against the club be submitted to arbitration at the parties’ election. The manager did not call the liability waiver to Finley’s attention and Finley testified that he understood the only reason he was asked to sign the form was to reduce his monthly fees. The entire transaction took less than a minute.

The trial court ruled the liability waiver was unenforceable because Finley signed it only to reduce his monthly dues. In addition, the court ruled the waiver provision was not clear and conspicuous, and was ambiguous because it included an arbitration provision. Finley’s personal injury action resulted in a $1.8 million judgment against Club One.  

Club One retained Horvitz & Levy to pursue an appeal. The Court of Appeal, Fourth Appellate District, Division One, reversed the judgment. It held the waiver provision was enforceable and barred Finley’s lawsuit even if he never read it because there was no evidence of fraud, deception, misrepresentation, duress or undue influence. It also held the trial court erred in finding the waiver was not clear and conspicuous and that combining a waiver of liability provision with an arbitration provision did not create an ambiguity. 

This case was handled by David Ettinger and Peter Abrahams.