Bennett v. Biernacki

[Cite as Bennett v. Biernacki, 2022-Ohio-4449.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
PAMELA BENNETT, et al., : CASE NO. CA2022-05-030
Appellants, : OPINION
12/12/2022
:
- vs -
:
IAN BIERNACKI, et al., :
Appellees. :
CIVIL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
Case No. 20CV093759
Robbins, Kelly, Patterson & Tucker, LPA, and Cory D. Britt, for appellants.
David P. Bolek, for appellees.
M. POWELL, P.J.
{¶ 1} Pamela Bennett and her husband Scott Bennett appeal the decision of the
Warren County Court of Common Pleas granting summary judgment in their negligence
action against Ian Biernacki and Fitness Gurus, LLC, d/b/a Crunch Fitness. Because a
genuine issue of material fact exists, summary judgment is inappropriate. Therefore, we
reverse.
Warren CA2022-05-030
I. Facts and Procedural History
{¶ 2} In May 2018, Pamela Bennett became a member of Crunch Fitness. She had
never been a member of a gym before and had no experience with exercise equipment. So
Bennett1 also purchased the services of a personal trainer from the gym. She was assigned
Biernacki, whom the gym had hired a few days before. Although Biernacki was not certified
as a personal trainer and had never worked as a personal trainer, he did have certification
as a strength-conditioning coach and had certification related to Olympic weightlifting.
Bennett signed a membership agreement and a personal-trainer agreement, and in each
she agreed that she would not hold the gym or its employees liable for any injury that she
sustained except for injury that resulted from "willful misconduct" or "gross negligence."
{¶ 3} In November 2018, Bennett had her second exercise session with Biernacki.
One of the exercises that he had for her was a "row up." This exercise used a power rack,
which is a steel cage-like structure with four vertical posts that is used for barbell exercises.
Attached to the power rack are "J-cups," on which a barbell sits. In a row-up exercise, J-
cups holding an unweighted barbell are placed on the outside of the power rack, and the
exerciser stands inside the rack. The exerciser grasps the barbell, leans back, and
performs what might be best described as a reverse pushup. When done from inside the
power rack, the vertical bars prevent the barbell from being pulled off the J-cups. This was
the first time that Bennett had ever done this exercise or used a power rack. Biernacki
stood inside the rack and demonstrated the exercise while Bennett stood outside the rack
and watched him. When he finished, he told her to "step in." Biernacki walked about three
feet to the side of the power rack where he had left his exercise notes on the floor to check
how many repetitions and sets Bennett should do. He thought that she would wait for him
1 "Bennett" in this opinion refers to Pamela Bennett unless otherwise noted.
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to tell her to begin the exercise. She did not. While he was looking away, Bennett stepped
up to the rack, and having not understood the importance of performing the exercise from
inside the rack, she grasped the barbell from the outside. When Bennett leaned back, the
barbell slipped off the J-cups, and she fell onto the floor. The fall resulted in a compression
fracture of one of her vertebrae that required multiple surgeries, including a lumbar fusion.
{¶ 4} The Bennetts filed a negligence action in November 2020 against Biernacki
and Crunch Fitness asserting two claims of negligence along with a derivative claim for loss
of consortium. They later filed an amended complaint that added a claim for willful, wanton,
and reckless conduct. Biernacki and the gym moved for summary judgment, arguing waiver
and assumption of the risk.
{¶ 5} On April 13, 2022, the trial court granted the motion for summary judgment.
The court concluded that in the membership agreement and the personal-trainer agreement
Bennett had expressly assumed the risk of injury and had waived her right to seek damages.
The court determined that Biernacki did not commit wanton misconduct nor was he grossly
negligent. The court further concluded that Bennett's claims were barred by primary
assumption of the risk involved in weightlifting. Instead, the trial court found that Biernacki
had instructed Bennett on the proper way to perform the exercise, that she did not perform
the exercise as he instructed, and that she began the exercise without being instructed to
do so.
{¶ 6} The Bennetts appealed.
II. Analysis
{¶ 7} The sole assignment of error alleges:
{¶ 8} THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT IN
FAVOR OF APPELLEES FITNESS GURUS, LLC D/B/A CRUNCH FITNESS AND IAN
BIERNACKI.
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{¶ 9} Summary judgment is appropriate when "the evidence, properly submitted,
shows that there is no genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law." Todd Dev. Co., Inc. v. Morgan, 116 Ohio St.3d
461, 2008-Ohio-87, ¶ 11; Civ.R. 56(C). "The inquiry performed is the threshold inquiry of
determining whether there is the need for a trial—whether, in other words, there are any
genuine factual issues that properly can be resolved only by a finder of fact because they
may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 250, 106 S.Ct. 2505.
{¶ 10} Here, to recover for negligence, Bennett must prove (1) that Biernacki owed
her a duty of care, (2) that he breached his duty, and (3) that the breach caused her injury.
See Winkle v. Zettler Funeral Homes, Inc., 182 Ohio App.3d 195, 2009-Ohio-1724, ¶ 46
(12th Dist.).
A. Biernacki's duty of care
{¶ 11} "'The existence of a duty is fundamental to establishing actionable negligence,
without which there is no legal liability.'" Uhl v. Thomas, 12th Dist. Butler No. CA2008-06-
131, 2009-Ohio-196, ¶ 10, quoting Adelman v. Timman, 117 Ohio App.3d 544, 549 (8th
Dist.1997). Liability for negligence arises when a defendant owes a plaintiff a duty of care
and fails to take reasonable measures to prevent injury that is reasonably foreseeable from
the defendant's conduct. The duty-of-care determination is a question of law for courts to
decide. See Winkle at ¶ 47; Mussivand v. David, 45 Ohio St.3d 314, 318 (1989).
{¶ 12} Assumption of risk is a measure of the defendant's duty of care. See Pryce
v. Town Sports International, LLC, S.D.N.Y. No. 18 Civ. 5863, 2021 WL 1226926, *13 (Mar.
31, 2021). "Express assumption of risk * * * arise[s] where a person expressly contracts
with another not to sue for any future injuries which may be caused by that person's
negligence." Anderson v. Ceccardi, 6 Ohio St.3d 110, 114 (1983). It is "the same as
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waiving the right to recover." (Citation omitted.) Oliveri v. OsteoStrong, 11th Dist. Lake No.
2019-L-104, 2021-Ohio-1694, ¶ 17. Where there is express assumption of risk, the
defendant's duty to the plaintiff is to use due care not to increase the risks over and above
those that the plaintiff expressly assumed.
{¶ 13} There is no real dispute here that Bennett expressly assumed risk. In the
membership agreement and in the personal-trainer agreement that she signed, Bennett
agreed to these two provisions:
2. MEMBER RISK. Member * * * shall hold FITNESS GURUS,
LLC harmless from any loss, theft, cost, claim, injury, damage
or liability ("Damages") incurred as a result of the use of a
FITNESS GURUS, LLC facility and any other membership
activities, except such Damages which result from the willful
misconduct or gross negligence of FITNESS GURUS, LLC, its
affiliates, agents or employees.
***
(2.5) Activity Risk. Any strenuous athletic or physical activity
involves certain risks. Member * * * assume[s] the risk of any
[and] all accidents or injuries of any kind that may be sustained
by, or in connection with, use of the facilities and release, hold
FITNESS GURUS, LLC harmless, discharge and absolve
FITNESS GURUS, LLC, its agents and employees from any and
all Damages or responsibility except if such accident or injury is
the result of willful misconduct or gross negligence of FITNESS
GURUS, LLC, its affiliates, agents or employees.
In short, Bennett expressly assumed all risk of injury except injury that resulted from "willful
misconduct" or "gross negligence." She waived the right to recover damages for anything
else.
{¶ 14} Thus Biernacki's duty of care to Bennett was not to cause her injury by his
willful misconduct or gross negligence.
B. Breach of the duty of care
{¶ 15} Willful misconduct and gross negligence refer to different degrees of care.
"Willful misconduct implies an intentional deviation from a clear duty or from a definite rule
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of conduct, a deliberate purpose not to discharge some duty necessary to safety, or
purposefully doing wrongful acts with knowledge or appreciation of the likelihood of resulting
injury." (Citation omitted.) Anderson v. Massillon, 134 Ohio St.3d 380, 2012-Ohio-5711, ¶
32. Gross negligence is the "failure to exercise any or very slight care" or the "failure to
exercise even that care which a careless person would use." Thompson Elec., Inc. v. Bank
One, Akron, N.A., 37 Ohio St.3d 259, 265 (1988); Winkle, 182 Ohio App.3d 195, 2009-Ohio-
1724, at ¶ 46.
{¶ 16} Much of what happened in this case is not really disputed. The evidence
shows that Biernacki explained and demonstrated to Bennett the proper way to perform the
row-up exercise. Bennett's expert wrote in his report that "Mr. Biernacki explained and
demonstrated the Row Up for Ms. Bennett using proper technique." And Biernacki testified
that he showed her how to do it from inside the rack, telling her, "we have to pull this bar
towards us." He further testified that he "even picked the bar up and pushed it against the
rack to really drive home that image, we're pushing into it." Biernacki then told Bennett to
"step in." Biernacki stepped to the side of the rack, roughly three feet away, and looked
away from Bennett at his exercise notes. While he was looking away, Bennett stepped up
to the rack and began performing the exercise from outside the power rack—contrary to
how Biernacki had explained and demonstrated it. The barbell slipped off the J-cups, and
Bennett fell. The evidence shows that it is unlikely that Bennett would have been injured if
she had performed the exercise from inside the rack.
{¶ 17} Bennett's negligence argument focuses on the fact that Biernacki looked
away from her. Had he been watching, she contends, he would have (presumably) ensured
that she performed the exercise safely.
{¶ 18} Biernacki maintains that he did not know Bennett was performing the
exercise, that he thought she was waiting for him to tell her to start. Biernacki's deposition
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testimony suggests that his back was to her: "by the time I had turned around to look at her
she was pretty much already falling back." His later testimony, though, suggests that
perhaps his back was not fully to her: "It happened so fast. I saw a motion[.]" But Bennett
testified at her deposition that Biernacki looked up from his notes and saw her: "So I did the
exercise. And he looked up and saw that I was doing the exercise, didn't say a word, and
I was on the opposite side[.]" She later testified again that when she grabbed the barbell
(from the wrong side) she saw him looking at her—that his back was not turned to her, and
that he looked up at her but did not say anything. Of course, if Biernacki was watching
Bennett, he should have stopped her from performing the exercise incorrectly. And his
failure to do so would likely constitute willful misconduct or gross negligence. But whether
Biernacki committed willful misconduct or gross negligence by not watching Bennett
depends on whether Bennett was justified in beginning the exercise without the go-ahead
from Biernacki.
{¶ 19} As we said, Biernacki testified at his deposition that he did not know Bennett
had begun the exercise because he thought that she would wait for him to tell her to begin.
"Before I had given her any instruction to proceed with the exercise," Biernacki said, "she
ha[d] already fallen." As he explained it, his job was to give "cues":
[Y]ou know, it looks good. You may begin. Or let's have another
rep. You know, something like that. * * * So I cue the
individuals. This situation she did not give me an opportunity.
She had already taken it into her own hands before I could even
assess it.
(Emphasis added.). When Biernacki was asked whether, if he had been watching Bennett
the whole time, he could have said something, Biernacki answered no:
A. No, because I like to believe she would have had to wait for
me to allow her to begin the exercise before I say anything. And
that's when I reference the cues.
Q. Okay. So you think that she did this just so quickly that there
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was just no avoiding it?
A. There was no avoiding it. Because what I would have liked
to have seen is for her to step underneath the bar or around it,
you know, get onto the right side of the bar and I go, hey, let's
position our hands at this width, we're going to lean back at this
angle and we're going to pull straight to our chest. None of that
occurred because there was no time for that. And that's typically
how my training session will go.
(Emphasis added.).
{¶ 20} But according to Bennett that is not how her training sessions with Biernacki
had gone. Bennett testified at her deposition that Biernacki had never given her the go-
ahead to begin an exercise:
Q. * * * Would he give you instructions on when to start or stop
or count or how many you were supposed to do or, you know,
how did that work?
A. He told me to do like ten but that was the only thing. He didn't
give me any instructions on how to do it—
***
A. —or when to do it, where to do it. Just how many to do.
(Emphasis added.). If Bennett is believed, based on established practice, Biernacki had
little reason to expect that she would wait for him to tell her to begin the row-up exercise.
This would be especially true after he told her to "step-in."
{¶ 21} Thus a genuine issue of material fact remains in this case. Whether Bennett
was justified in beginning the exercise without an explicit go-ahead from Biernacki is a
disputed issue, as there is credible evidence on both sides. And the resolution of this factual
issue is necessary to determine whether Biernacki breached his duty of care to Bennett by
looking away from her. Evidence from Bennett's expert supports her contention that
Biernacki's looking away rose to the level of willful misconduct or gross negligence.
{¶ 22} Ultimately, the resolution of the factual dispute here depends on credibility of
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two parties in this case. See Turner v. Turner, 67 Ohio St.3d 337, 341 (1993) (stating that
a credibility issue arises in summary-judgment proceedings "when one litigant's statement
conflicts with another litigant's statement over a fact to be proved"). Determining the
credibility of the evidence is "contrary to the purpose of Civ.R. 56(C)." Id. "Since resolution
of the factual dispute will depend, at least in part, upon the credibility of the parties or their
witnesses, summary judgment in such a case is inappropriate. * * * Such a discrepancy
over a material fact can be resolved only by the trier of fact[.]" Id. (concluding on this basis
that the trial court erred by granting defendant's motion for summary judgment).
III. Conclusion
{¶ 23} "[A] trial court is required to overrule a motion for summary judgment where
conflicting evidence exists and alternative reasonable inferences can be drawn." McCarthy
v. Lordstown, 11th Dist. Trumbull No. 2014-T-0050, 2015-Ohio-955, ¶ 7, citing Dupler v.
Mansfield Journal Co., 64 Ohio St.2d 116, 121 (1980); see also Murphy v. Reynoldsburg,
65 Ohio St.3d 356, 359 (1992). Here, whether Bennett was justified in beginning the
exercise without an explicit go-ahead from Biernacki is a material issue of fact on which the
evidence is in genuine dispute. A fact-finder could find that Bennett was so justified and
conclude that, by looking away before he was sure that she was performing the exercise
properly, Biernacki breached his duty of care to her. Therefore, the trial court erred by
granting Biernacki and Crunch Fitness summary judgment. The sole assignment of error
is sustained.
{¶ 24} The trial court's judgment is reversed. This case is remanded for further
proceedings.
S. POWELL and HENDRICKSON, JJ., concur.
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