Making the Opposing Expert Sweat

July 22, 2022

On June 14, 2022, the California Court of Appeal issued an opinion in Joshi v. Fitness International, LLC, providing favorable defense precedent in the context of negligence and premises liability summary judgment proceedings.  This decision emanates from the Sixth District with jurisdiction over Monterey, San Benito, Santa Clara, and Santa Cruz.

In Joshi, a gym member tripped in a sauna and burned her arm on a heating element.  She claimed a light was burned out and it was “pitch black,” causing the accident.  She later filed a civil Complaint against the gym owner for ordinary negligence, gross negligence, and premises liability. 

The trial court and court of appeal concluded that the gym owner defendant was entitled to summary judgment on the ordinary negligence cause of action on the basis of an exculpatory clause in the gym membership agreement.[1]  Joshi reiterates that there is venerable Supreme Court precedent that “an agreement provided by a participant in recreational programs and services that releases liability for future negligence is enforceable,” noting however that releases may not apply to “gross negligence.”  (Id. at 16-17).  Plaintiff resisted and argued that the release did not specifically refer to injury from use of a sauna and that the release “was not differentiated from within the membership agreement,” which argument the appellate court rejected.  (Id. at 34, noting that tripping in a sauna is an injury assumed by a gym patron and the release was marked with a separate, all-capitalized heading).

On the issue of gross negligence, the Court of Appeal defined “gross negligence” as the “want of even scant care or an extreme departure from the ordinary standard of conduct.”  (Id. at 17).  Defendant submitted declaratory evidence that the gym did not have notice that the sauna light was out and the sauna had been inspected weekly by the operations manager with overlapping employee daily walk throughs.  Plaintiff in turn submitted a single inspection sheet from the date of the accident that  noting that the sauna “needed repair.”  Plaintiff however failed to establish that the inspection that the inspection occurred before the accident.  (Id. at 28).  Plaintiff also had presented an expert declaration from fitness industry consultant Kurt Baker.  Mr. Baker concluded the “needs repair” inspection sheet was probably before the accident, but the Court of Appeal determined Baker’s conclusion in this regard was inadmissible speculation.  (Id. at 29).  Moreover, the Court concluded that the previous inspection reports of the light malfunctioning from months before the accident were “not relevant” to the immediate history and constructive knowledge before the accident.  (Id. at 29). 

Finally, on the issue of premises lability, the Court of Appeal determined that this cause of action was “founded on a theory of negligence” and therefore failed for the above stated reasons.  (Id. at fn. 13).

Several aspects of Joshi are interesting.  First, the Court notes a potential trap for plaintiffs with cursory, form complaint allegations.   In other words, “[W]hen a plaintiff fails to allege in his or her pleading facts sufficient to support a theory of gross negligence, the defendant satisfies its [summary judgment] burden by asserting a release as a complete defense, and the burden then shifts to the plaintiff...” on gross negligence. Further, if the complaint does not have detailed gross negligence allegations and evidence is produced of a signed release agreement, a defendant seeking summary judgment need not establish the absence of gross negligence in the moving papers, which obviates an onerous requirement, suggesting that the complaint’s brevity and conclusory nature may abrogate the defendant’s duty to negate gross negligence in the his or her MSJ moving papers.

Second, Joshi redirects a prevailing trend in trial courts to instinctively deny summary judgment when the opposing party submits an expert declaration.  As Joshi illustrates, the expert declaration’s conclusory opinions were not independently capable of defeating the motion without substantial factual foundation.  The expert had attempted to create a triable issue of fact by claiming the sauna was “high risk,” and by arguing that defendant failed to document daily inspection sheets or sweep sheets and defendant “did not appreciate the inherent risk to members created by a sauna....”  (Id. at 10-11).  Instead of disengaging the analysis, the Court of Appeal delved deeper, noting several holes in the foundation for these expert opinions.

Going forward and in summary, Joshi provides a valuable precedent (1) enforcing recreational releases of liability, (2) scrutinizing expert opinions regarding actual or constructive notice and related liability and, (3) obtaining summary judgment in a premises liability context.

Gabriel Ullrich is a Senior Associate in the Firm’s Sacramento office. He can be reached at (916) 483-5181 or

[1]  The release’s material provisions were quoted as: “IMPORTANT: RELEASE AND WAIVER OF LIABILITY AND INDEMNITY. You hereby acknowledge and agree that use by Member … of the facilities, services, equipment or premises offered by CSC … involves risks of injury to persons and property. Member understands, voluntarily accepts and assumes full responsibility for such risks, which include (but are not limited to) injuries arising from use of exercise equipment and machines; injuries arising from participation in supervised or unsupervised activities or programs; injuries and medical disorders arising from exercising such as heart attacks, strokes, heat stress, sprains, broken bones, and to muscles and ligaments, among others; accidental injuries occurring in dressing rooms, showers and other facilities; and injuries so severe they result in permanent disability, head injury, paralysis, and even death. Further, in consideration of Member … being permitted to enter any facility of CSC … Member agrees that CSC will not be liable for any injury to  the person or property of Member … , and Member hereby releases and holds harmless CSC from all liability to Member …, for any loss or damage, and forever gives up any claim or demands therefore, on account of injury to Member's person or property, including injury leading to the death, whether caused by the active or passive negligence of CSC or otherwise, and whether related to exercise or not, to the fullest extent permitted by law, while Member … [is] in, on, or about Club premises or using any CSC facilities, services or equipment.” (Id. at 5-6, italics added by appellate court.)