This case involves an accident at QK Fitness (“QK”) when the plaintiff, Fatemeh Hosseinkhani (the “plaintiff”), tripped and fell on a dumbbell during a gym class. She sued QK for negligence. QK successfully brought a motion for summary judgment to dismiss the plaintiff’s action arguing that it could not be negligent for two reasons: because the plaintiff signed a waiver or, in the alternative, that the plaintiff was solely responsible for her accident. The plaintiff took the position that she had no opportunity to read the Agreement before she signed it, that no one brought the exclusion of liability clause to her attention when she signed it, and that the defendant failed in its duty of care to properly instruct the plaintiff on the safe use of round dumbbells.
Facts
The plaintiff joined QK in February 2014 on a one-year membership agreement. Upon joining, she was given a tour of the facility and, at its conclusion, was presented with an Agreement to sign. Clause 3.3 “Exclusion of Liability” appeared on the reverse side of the Agreement. This clause released QK from any liability for personal injury arising out a member’s participation in a program or use of the facilities and/or arising out of the negligence of QK. The plaintiff signed the Agreement.
On August 8, 2014 the plaintiff participated in an exercise class requiring the use of two dumbbells and a low step. She had been participating in this class about once every two weeks since joining the club. As there were not enough hexagonal plastic covered dumbbells, the plaintiff used a pair of circular metal dumbbells located in the room where the class was being taught. The plaintiff would usually use the hexagonal dumbbells, but had occasionally used the circular ones.
Some exercises involved using the step, others required the use of dumbbells and some required the use of both. About 20 minutes into the class, during an exercise requiring the step, and not the dumbbells, the plaintiff placed her dumbbells about 18 inches in front of her, on her right-hand side, as instructed by the fitness instructor. The plaintiff received no instructions on what type of dumbbells to use or how to place the dumbbells when they were not in use. The plaintiff was instructed to step off the step to her right. When she did so, she stepped on one, or both, of the dumbbells. She believes that one, or both, of the dumbbells rolled from their original position and caused her to fall. The plaintiff suffered a burst fracture of her T12 vertebrae.
Exclusion of Liability Clause
The court relied on the Court of Appeal decision Schnarr v Blue Mountain Resorts Limited, 2018 ONCA 313 which confirmed the ability of occupiers to obtain waivers or exclusions of liability under section 3(3) of the Occupiers Liability Act (“OLA”); however, to rely on such an exclusion of liability, the occupier must take “reasonable steps” to bring the restriction or exclusion to the attention of the person to whom the duty of care is owed, as set out in section 5(3) of the OLA. Reasonable steps may be apparent in the Agreement itself (ie) large instructions such as “PLEASE READ CAREFULLY” the exclusion of liability clause, red lettered instructions such as “THE CONDITIONS WILL AFFECT YOUR LEGAL RIGHTS INCLUDING THE RIGHT TO SUE OR CLAIM FOR COMPENSATION FOLLOWING AN ACCIDENT”, or having the person sign or initial the specific provision providing for the exclusion or restriction.
In this case, the court found that QK did none of these things and, therefore, failed to meet the requirement in section 5(3) of the OLA. On this basis, the defendant’s motion for summary judgment could not be satisfied. The court then went on to consider QK’s second argument, that it bore no responsibility for this accident.
Negligence on the Part of the Defendant
According to section 3 of the OLA, to succeed in a claim against QK, the plaintiff must pinpoint some act or failure on the part of QK that caused the plaintiff’s injury before liability can be established (see Hamilton v Ontario Corporation #2000533 o/a Toronto Community Housing Corporation, 2017 ONSC 5467). The presence of a hazard does not, in itself, lead to the conclusion that QK has breached its duty. QK is not required to take unrealistic or impractical precautions against known risks (see Drummond v The Cadillac Fairview Corp Ltd., 2018 ONSC 4509).
In the present case, the court noted there was no allegation that the round dumbbells were defective or inherently dangerous when properly used. Rather, the allegation was that the defendant failed to properly warn or instruct the plaintiff on their proper use. There is no evidence that round dumbbells are a known hazard. To the contrary, the evidence of the defendant was that they were routinely used by participants in the exercise class without incident.
The only issue left for the court was whether QK had a duty to instruct the plaintiff regarding the proper placement of the dumbbells when not in use. The plaintiff relied on the Miltenberg v Metro Inc., 2012 ONSC 1063 decision, where the plaintiff was injured after a tub of ice cream fell on her as she reached for the bottom of two tubs stacked on the top shelf of the freezer. In that case, the court held that 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 court refused to accept the plaintiff’s argument that the defendant had a duty to warn customers that reaching for goods on the top shelf could cause injury. The court found that risk to be obvious. The court, in Miltenberg, also rejected the plaintiff’s argument that there should have been signs warning customers that items may fall from their placement on higher shelves as “customers do not need to be warned that ice cream containers or any item could fall on them if not gripped properly.”
The plaintiff, In the subject case, also relied on a couple of cases involving the standard of care to be exercised by school authorities when providing supervision and protection of students and tried to argue that the same duty of proper training and instruction was applicable to an exercise instructor at QK, a gym for adults. In rejecting this argument, as well, the court found that children require more supervision and instruction than adults. And, the cases the plaintiff relied on involved a child injured playing tackle football and a child who was injured while doing a somersault over a boxhorse as part of a gymnastics program. Both of these activities are inherently dangerous, an both require instruction and the progressive development of specific skills (see Thomas v Hamilton, 1994 CanLII 739; 20 OR (3d) 598 (C.A.) and Thornton v Board of School Trustees of School District No. 57, 1976 CanLII 1083 (BCCA), [1976] S.W.R. 240, 73 D.L.R. (3d) 35 (BCCA).
In the subject case, the court found that the exercise activities involved were simple and the skills involved were rudimentary. Neither the exercises themselves nor the equipment used were inherently dangerous. There was no evidence that the round dumbbells represented an unusual hazard or that the defendant had any reason to believe that they were hazardous. There is no evidence that the round dumbells were not reasonably safe for the purpose for which they were intended. The evidence suggests they had been used thousands of times without incident.
More importantly, the court also found that a round dumbbell might roll is an obvious risk. An occupier does not have to warn an adult about obvious risks (see Jassal v Hilcox, 2016 ONSC 5523).
The court held that the plaintiff had not proven a case of negligence against the defendant for failure to warn her that a round dumbbell placed on the floor on its side could roll and granted summary judgment to the defendant. The plaintiff’s action was dismissed.
This decision clarifies the ability of occupiers to obtain waivers under the OLA so long as reasonable steps are taken to ensure the exclusion is brought to the attention of the person signing the waiver and that an occupier is not required to provide warnings about obvious risks.
See Hosseinkhani v QK Fitness, 2019 ONSC 70 (CanLII).
