If you were hurt and have suffered losses as a result of the probable negligence of a property owner, a car driver or another party, you have the right to file a claim for damages against the at fault party. At Stevenson Whelton MacDonald & Swan, we invite you to meet with one of our experienced Oakville injury lawyers for a no-obligation consultation in which we will provide you with an honest assessment of your case and give you an opportunity to get answers for any questions pertaining to your accident. Our staff are committed to being up front and straightforward with our clients on all issues and you can be assured that we won’t encourage false hopes, as we don’t believe it’s in our clients’ best interests to go ahead with a claim that has little chance of success.
Not all accidents resulting in injury are caused by negligence. Whether or not a party may be found negligent for injuries to another person, particularly in personal injury lawsuits arising from injuries incurred on someone’s property, generally depends on whether the party allegedly responsible for the injury was acting as ‘a reasonable person’. What is ‘reasonable’ depends on several criteria, including the circumstances of the accident and the foreseeable risk of harm to others. Accordingly, when an injured person brings a negligence lawsuit against a property owner or another party, the Court must decide whether the defendant acted reasonably, given all the circumstances and facts of the case. If the answer is ‘yes’, as in the following case, then the defendants may not be held responsible for the plaintiff’s injury.
Hosseinkhani v. QK Fitness Inc. (2019) is a personal injury action involving a 50-year-old woman who tripped and fell on a dumbbell while participating in a gym class at the defendant’s facility. At the time of the accident, the plaintiff was involved in an exercise that sometimes required the use of dumbbells, and she had placed dumbbells in front of her on her right side to be available when needed (and which she believed were safely out of the way). At some point in the workout, the instructor told the participants to step to the right, and the plaintiff stepped on the dumbbells which she believes rolled out of their original location, lost her balance, and fell. The plaintiff was immediately taken to the hospital where she was diagnosed with a fracture of her T12 vertebrae.
The injured woman subsequently commenced a lawsuit for $5 Million in damages for herself and $1 Million in damages for her husband and sons, pursuant to the Family Law Act. And, in Hosseinkhani v. QK Fitness Inc., the defendants sought to have the lawsuit dismissed in a summary judgement motion, on the basis that the plaintiff caused her own injury and the defendants are not negligent. Alternatively, the defendants argued that the plaintiff signed a Membership Agreement that includes terms which release the fitness facility from liability from this type of civil action.
Background and Testimony Evidence
The plaintiff testified that no one pointed out or explained the Exclusion of Liability clause when she signed the Membership Agreement. Further, she wasn’t given an opportunity to read the Agreement and was simply told to sign it.
The plaintiff also testified that the defendant owed her a duty of care to give proper instructions on the safe use of equipment but they failed in their duty of care. She argued that the defendants knew the round dumbbells were prone to rolling if set on their side, but never gave instructions on safe use of the round dumbbells.
The instructor for the class was also named as a defendant in the lawsuit, and she testified that she did not instruct the plaintiff to use the round dumbbells but if she saw that a participant had placed a dumbbell on its side, she would go over and re-position it. The defendant also argued that the round dumbbells were safe if placed on their flat end when not being used and common sense is sufficient to know this. Finally, the instructor testified that in the 1000’s of classes she taught over the years, there was never a problem caused by the round dumbbells.
In a case such as this one, there are three possible judgements on the liability issue: the plaintiff is wholly responsible for her own injury; the defendant is wholly liable; or there is contributory negligence on the part of both the plaintiff and defendant, and damages should be apportioned based on the degree of fault of each party.
Is the Liability Waiver applicable in this case?
The first issue to be resolved by the Court for this case is whether or not the 'Exclusion of Liability' clause in the Membership Agreement is binding. The Exclusion clause iincludes verbiage that states that the member is “using the facilities at his/her own risk” and further, the member agrees to release the Club and any employees of the club from any claim arising from various conditions, including a “deterioration of health” or “aggravation of condition”…”as a result of participation in the programmes” or “any claim for personal injury sustained by the Member/Buyer in, on or about the facilities of the Club”.
Justice Charney referred to Ontario’s Occupiers’ Liability Act (OLA) which states that all property owners and occupiers owe a duty of care to keep persons coming on to their premises reasonably safe from injury. However, the duty of care does not apply to risks willingly assumed by persons entering a premises, as long as the occupiers did not act with reckless disregard or create a danger intended to cause harm to persons entering the property. Further, under the OLA, an occupier must take “reasonable steps” to bring the exclusion of liability to the attention of the person to whom they owe the duty of care (as noted in Best v. Deal (2008)).
Since the defendant brought the motion to have the case dismissed in summary judgement, the onus was on the defendant to prove that they met the requirements of the OLA s. 5(3) and can rely on the Exclusion of Liability clause in the Membership Agreement. On this question, Justice Charney found that the defendant failed to show that it met the requirements and therefore, the Exclusion clause does not apply.
Justice Charney noted that the ‘Exclusion of Liability’ paragraph was on the back of the Agreement document, was printed in smaller font, and there was nothing to draw a signor’s attention to it. Also, there was no place on the Agreement where a person could sign or initial the Exclusion and therefore, there was no indication that the defendant made any effort to bring the waiver to the plaintiff’s attention. Finally, the defendant did not produce any evidence from the employee who signed up the plaintiff for Membership, with regards to whether the Exclusion was brought to the plaintiff’s attention.
Was the Fitness Club negligent?
The key issue in determining negligence on the part of the defendants is whether the defendants had a duty to instruct the plaintiff on the safe and correct placement of dumbbells when they are not in use.
The Court referred to Miltenberg v. Metro Inc. (2012) which involved a woman who sued a grocery store when she was injured by tub of ice cream that fell on her after she recached for the bottom of two ice cream containers stacked on the freezer’s top shelf. The judge in Miltenberg asserted the following: “Conduct is negligent if it creates an objectively unreasonable risk of harm. To avoid liability, a person must exercise the standard of care that would be expected of an ordinary, reasonable and prudent person in the same circumstances. The measure of what is reasonable depends on the facts of each case, including the likelihood of a known or foreseeable harm, the gravity of that harm, and the burden or cost which would be incurred to prevent the injury”. In Miltenberg, the judge concluded that the store was not negligent and customers should not need signs throughout the store to warn them that ice cream containers or other items may fall on them if not properly held onto.
In the current case, Justice Charney found that the exercises the plaintiff was participating in were rudimentary and there was no evidence that the round, 8 pound dumbbells were not reasonably safe for normal use, nor did they represent an unusual hazard that the defendants had reason to believe might be dangerous. Further, the judge surmised that dumbbells are not complicated exercise equipment that requires instruction on proper use and safety. Justice Charney further stated that the risk that a round dumbbell may roll is obvious and an occupier is not obligated to warn adults about obvious risks.
Justice Charney pointed out that accidents may result without anyone being negligent and the Occupiers’ Liability Act does not inflict strict liability on property owners. And, in the current case, the judge found that the defendant could not be found negligent for failing to warn the plaintiff that a round dumbbell might roll if placed on its side. Accordingly, the defendants’ summary judgement motion was granted and the plaintiff’s action against the defendants was dismissed.