1. 1. Facts and Legal issues discussed
• This case is about negligence and wavier of liability.
• There is mention of gross negligence but only fleetingly because the facts in the case do
not give rise to gross negligence.
• Product liability and whether a defendant/respondent was liable for the injury as a
distributor of the product being used during injury is discussed as well.
The key facts in this case include:
• a membership agreement between Grebing(appellant) and 24 Hour Fitness( Respondent}
in which Grebing agrees to voluntarily accept any and all risk of injury cause by 24 Hour
Fitness or its employees, volunteers agents and the like.
• Grebing agrees to hold 24 Hour Fitness harmless against any liability and to indemnify
them for any cost incurred in connection with a claim for bodily injury, wrongful death,
court fees etc.
• Grebing affirms respondent is a supplier of "recreational services" and not product
distributor.
• After Grebing becomes a member he is seriously injured while using a piece of
equipment at the respondent's facility.
• Although there is evidence that the machine may not have been inspected that day or that
a commonly removed link used on various machines at respondent's facility was out of
place on the day of the injury, Grebing admitted he had read the warning label on the
machine before he was injured: “PRIOR TO USE, BE SURE THAT THE ‘SAFETY
CLIP’ IS IN PROPER WORKING CONDITION AND SHOWS NO SIGNS OF
WEAR!”
2. How the court decided the case including decision and reasoning
Court's Decision
• Grebing assumed all responsibility for the risks arising from his use of 24 Hour’s
facilities, services, equipment, or premises.
• "The release in the two agreements signed by Grebing precludes liability for ordinary
negligence and breach of warranty. Because we find no disputed issues of material fact
over whether 24 Hour acted with gross negligence or provided fitness services to
Grebing, the trial court properly granted 24 Hour’s motion for summary judgment. The
judgment is affirmed. "

2. Court's Reasoning
• As a general principal parties may contract to almost anything, including a waiver of
liability for negligence unless it is prohibited by statute or impairs the public interest.
• The contract described by the facts in this case are clear and unambiguous. "[plaintiff]
voluntarily accept[s] the risk and agree that 24 Hour, its officers, directors, employees,
volunteers, agents and independent contractors will not be liable for any injury..."
• There is no evidence that this releases impairs the public interest. In fact, in this day
and age when obesity is rampant in the United States, to allow gyms to enter such a
release and provide physical fitness facilities without the fear of incessant claims is
largely(no pun intended) in the public interest.
Appellant contends that there is a factual issues as to whether respondent was grossly
negligent.
• Gross negligence differs from ordinary negligence in that it may not be waived in light of
public interest. Gross negligence may be found where an activity is so inherently
dangerous or reasonable care is consciously and voluntarily disregarded and the result is
foreseeable grave injury to a person or property.
• This case does not rise to the level of gross negligence. Respondent employs a facility
technician whose job was to conduct a daily inspection of the facility and perform
preventative maintenance. If the facilities technician was unavailable, 24 Hour had a
practice of requiring other staff members to conduct the inspection and perform any
required maintenance. In view of these measures, 24 Hour’s conduct cannot reasonably
be regarded as demonstrating an consciously and voluntary departure from the ordinary
standard of conduct. Respondent takes steps to increase safety and prevent injury.
• Product liability as a distributor does not apply here because the contract explicitly
describes that respondent is a provider of fitness services and is not selling fitness
equipment. "... You understand and acknowledge that 24 Hour is providing recreational
services and may not be held liable for defective products.” Moreover, Appellant may
have had a difficult time proving liability even if respondent was a distributor because
this product is not one where the distributor manipulates the machines(removes them
from the original packaging and assembles and then delivers.) Therefore defects would
be more likely to be manufactures' and not distributors.
3. I learned from this case and would like to share that:
Parties may contract to almost anything including wavier of ordinary negligence and right
to recover. The difference between ordinary and gross negligence appears to surround the
degree of disregard and or the degree of risk included in the activity. Distributor and
manufactures' liability and "merchantability of a product are important concepts relative to
contract law.