Low, Ball & Lynch’s

WEEKLY LAW RESUME

March 2, 2026 Issue  By: Ray Coates

Duty of Care - Release of Liability

Reoven Capri v. L.A. Fitness International, LLC

 (February 15, 2006)

Court of Appeal, Second District

It is common for health clubs to have a release and waiver of liability for injuries that occur during activities at the facility. This case opens a new avenue for members to avoid the application of such release.

Reoven Capri joined the L.A. Fitness Health Club and signed a membership agreement, which contained a release and waiver of liability. After joining the club, Mr. Capri used the treadmill and outdoor swimming pool 2-3 times a week. On November l7, 2002, while walking to the pool, Mr. Capri slipped and fell on the pool deck. An accumulation of algae was found later around the drain of the pool in the area where Mr. Capri fell.

Mr. Capri brought a personal injury action against L.A. Fitness International, alleging negligence and negligence per se. L.A. Fitness moved for summary judgment. The trial court granted the motion based on the waiver and release. Judgment was entered in favor of L.A. Fitness, and Mr. Capri appealed.

The Court of Appeal reversed. While the Court held the waiver and release barred the action for negligence, the Court also held it did not bar the action for negligence per se. The negligence per se cause of action was based upon a claim that mildew and other algae accumulated around the swimming pool. Mr. Capri alleged this violated State and County Health and Safety Codes, and constituted negligence per se. Mr. Capri then argued that the waiver and release was invalid under Section 1668 of the Civil Code, because it sought to relieve the health club of its responsibility for a violation of statutory law. Section 1668 provides that any contract which exempts anyone from responsibility for a violation of statutory law is against public policy.

                                       
Relying on Tunkl v. Regents of University of California (1963) 60 Cal.2d 92, the Court invalidated the contract as to the negligence per se cause of action. In Tunkl, the California Supreme Court held a release of liability will be invalidated if it violates the public interest. The Court stated that it was not necessary that there be a public interest to be involved where a violation of statutory law is alleged. A public interest is required to invalidate a release of general negligence, not negligence per se. The Court stated that the plain language of Civil Code Section 1668 rendered exculpatory provisions invalid as against public policy where they seek to avoid liability for a violation of statutory law. Thus, while there was no reason to bar enforcement of the release to the negligence cause of action, there was as to the negligence per se cause of action. This was because it alleged violations of the Health and Safety Code. Because the release fell within the exclusive prohibition of Section 1668 against contractual exculpation for violation of statutory law, it was invalid. The trial court therefore erred in finding the negligence per se cause of action barred by the release and waiver.

L.A. Fitness also argued the plaintiff assumed the risk of injury. The Court, however, felt that the risk of algae growing on a pool deck, causing it to become dangerously slippery, was not an inherent risk in the sport of swimming, and thus was not a risk assumed by those utilizing a swimming pool so as to relieve the pool owner of the duty to keep it clean. The Court therefore held that L.A. Fitness was not entitled to summary judgment based on the primary assumption of the risk doctrine. The Court reversed the judgment on the cause of action for negligence per se, and remanded the case to the trial court for further proceedings.

COMMENT
       
This case opens the door in every release and waiver case to an allegation that the injury was caused by a violation of statutory law, and thus the release and waiver may not be enforced. This decision will likely result in further appellate or legislative activity.

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