By Doyice Cotten
|Jade Kindermann was carrying her 22-month old son when she tripped over uneven pavement in the parking lot of the Lifetime Fitness Center (LTF Club Operations Company). Jade was unhurt, but her son suffered serious injuries when she landed on him. Jade sued the owner of the facility on her son’s behalf, alleging negligence and premises liability under state law.
Business owners sometimes forget that they may be held liable for injuries occurring on their sidewalks, parking lots, and elsewhere. This case serves as a reminder to look for and correct hazards. (Kindermann v. LFT Club Operations Company, Inc., 2017 U.S. Dist. LEXIS 103117)
The trial court ruled that the hazard (the asphalt parking lot and the concrete motorcycle parking pad do not align perfectly: the concrete pad juts a couple inches above the asphalt surface) was open and obvious; it subsequently granted summary judgment in favor of LTF.
The defendant presented three substantive arguments: (1) the plaintiff waived her right to sue the club by signing the waiver on the membership agreement. (2) the change in elevation was not a “defect” in the parking lot. (3) the condition of the parking lot was open and obvious to the average person; therefore there was no duty imposed on the club owner to its customers to warn or otherwise protect them. Summary judgment is appropriate if any one of these arguments is held valid.
Michigan Laws Affecting Case (citations omitted; click here for the entire case)
(1) The Waiver
The waiver stated she:
“agree[d] not to sue Life Time for, and waive[d], any claims, . . . causes of action, . . . or any other alleged liabilities or obligations of any kind or nature . . . for any Injuries to me, Minor Member(s), Other Member(s), or Guest(s) in the Use of Life Time Premises and Services which arise out of, result from, or are caused by any negligence of Life Time, me, any Minor Member(s), any Other Member(s), any Guest(s), and/or any other person. . . .”
She signed the membership agreement
“[o]n behalf of [her]self and [her] spouse/partner, children/Minor Members, Other Members, Guests, parents, guardians, heirs, next of kin, personal representatives, heirs and assigns.”
The defendant claims that this waiver language bars this lawsuit brought on behalf of her son. This creates some problems:
· That difference was immaterial because both are contracts. Supreme Court holds that a parent cannot contract away a minor child’s rights.
The court ruled against the defendant’s argument stating that a contract term by any other name that is a pre-injury waiver of a minor’s rights is still barred.
(2) Not a Defect
The second argument was that the elevated portion of the motorcycle parking pad was an intentional feature of the parking lot, and therefore was not a “defect.”
The court explained that
“A possessor of land is subject to liability for physical harm caused to [its] invitees by a condition on the land if the owner: (a) knows of, or by the exercise of reasonable care would discover, the condition and should realize that the condition involves an unreasonable risk of harm to such invitees; (b) should expect that invitees will not discover or realize the danger, or will fail to protect themselves against it; and (c) fails to exercise reasonable care to protect invitees against the danger.”
Consequently, whether the hazard was created intentionally by the landowner or not was irrelevant. The court ruled the claim failed. It has no bearing on the elements of a premises liability claim.
(3) Open and Obvious
The final argument of LFT was that it owed no duty of reasonable care because the elevated portion was open and obvious. The plaintiff argued the child had no capacity to make an evaluation. Michigan law holds
The defendant argues that the inquiry in this case is still limited to the adult standard because L.K. was being carried by his mother. Looking to precedent, the court agreed that the question should be whether an average person with ordinary intelligence upon casual inspection would have seen the danger.
The court considered that photos showed a clear elevated line stretching across the motorcycle parking pad that is accentuated by a difference in the colors of the materials. Obviously, the condition is dangerous when one notes the injuries to the child; however, the court pointed out that Michigan’s objective standard does not allow for much leeway, the condition is not “unreasonably” dangerous. Since the condition was open and obvious, no duty was owed by LFT, consequently the court ruled that there was no breach of duty by the defendant and no attached liability.
The court granted summary judgment in favor of LFT.
Risk Management Take-Away
Waivers do not always protect.
Waiver law in your state may be different.
Be certain your waiver protects against facility defects and hazards.
Correct hazards whenever possible; warn of hazards when correction is not feasible.
Photo Credit: Thanks to Dean Hochman at Flickr.