By Doyice Cotten
Cynthia MacAdams, age 75, signed a YMCA waiver prior to using the sauna. The floor consisted of two separate platforms made of wood slats on top of a concrete base; they could be lifted and pushed apart for cleaning, but were not pushed back together after cleaning. This resulted in a 3 inch gap in the flooring. When she got ready to leave, one of her feet went into the gap causing her to fall onto her right side. She suffered injury requiring 20 stitches, tore her rotator cuff, and neck and lower spine injuries that required surgery to repair. She filed suit alleging ordinary negligence and contended that the actions of the YMCA rose beyond the level of ordinary negligence (MacAdams v. YMCA of Metropolitan Los Angeles, 2021). Both parties agreed that the waiver protected the YMCA from ordinary negligence, so the issue was whether the club was grossly negligent.
YMCA employees went to the sauna area every 15 to 30 minutes while the facility was open to move towels in and out of the sauna and inspect the area. The YMCA did not maintain records documenting when its employees cleaned and inspected the sauna area.
An expert witness testified that “the operation of the sauna by the Hollywood YMCA with the gap in the wood flooring . . . was grossly deficient and well below the standard of care practiced by sauna operators. . ..” He claimed the action constituted gross negligence in his mind. In addition, he stated that standard practice in the sauna industry requires that there be no missing floor boards or slats when the sauna is in use and that standard practice dictates gaps of no greater than 1/2 inch. Further he testified that staff should check the area every 15 to 20 minutes.
Trial Court Ruling
The trial court granted the motion for summary judgment, finding the waiver was sufficient to absolve the YMCA of ordinary negligence and that MacAdams had not introduced evidence to create a triable question of material fact as to whether the YMCA’s actions rose to gross negligence. The court rejected the expert witness evidence because the documents Smith had relied on were not lodged with the court.
MacAdams claimed the trial court erred by excluding the declaration of her expert witness, and by finding that she had failed to raise a triable question of material fact as to gross negligence.
Gross Negligence: In California, it is against public policy for a waiver in the context of sports or recreational programs to preclude liability for gross negligence. California law defines gross negligence as either a “ want of even scant care” or “an extreme departure from the ordinary standard of conduct.” Whether an act is ordinary or gross is generally a triable issue of fact. In order to defeat a motion for summary judgment regarding a waiver, the plaintiff bears the burden to produce evidence creating a triable issue of material fact as to gross negligence.
The court cited relevant case law that helps with distinguishing between ordinary and gross negligence.
(1) “conduct demonstrating the failure to guard against, or warn of, a dangerous condition typically does not rise to the level of gross negligence.”
(2) “conduct that substantially or unreasonably increased the inherent risk of an activity or actively concealed a known risk,” or “conduct that evinces an extreme departure from manufacturer’s safety directions or an industry standard … could demonstrate gross negligence.”
The court determined that in this case, the evidence indicates only that the YMCA’s employees failed to notice a three-inch gap in the wood floor of the sauna, despite YMCA policy requiring that they check on the condition of the sauna frequently — thus indicating ordinary negligence. The court added that even if it interpreted all the evidence in favor of MacAdams, the failure still amounts to no more than ordinary negligence. It stated that “no reasonable factfinder could infer that the deficiency was such a drastic failure to meet industry standards as to represent “want of even scant care” or “an extreme departure from the ordinary standard of conduct.”
The judgment of the trial court in favor of the YMCA was affirmed.
Risk Management Take-aways
(1) Be certain you follow the standards of practice followed by other providers of your sport or activity.
(2) Keep accurate records of repairs and maintenance of your facility.
Photo Credit: Thanks to Hotel Arthur via Flickr.