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Brooten v. Hickok Rehab. Servs., LLC

Court of Appeals of Wisconsin

March 19, 2013, Submitted on Briefs; April 30, 2013, Decided; April 30, 2013, Filed

Appeal No. 2012AP1940

Opinion

 [*P1]  [**253]  [***446]  HOOVER, P.J. Ronald Brooten appeals a summary judgment dismissing his personal injury claims against Chetek Fitness 24/7 and its insurer, West Bend Mutual Insurance Company (collectively, "Chetek [**254]  Fitness").1 Brooten argues the circuit court erroneously enforced an exculpatory waiver Brooten signed when joining the health club. We hold that the waiver was unenforceable, and reverse and remand.2

BACKGROUND

 [*P2]  Brooten was injured at Chetek Fitness when a weight bench he was using failed. Chetek Fitness had purchased the weight bench new from 2nd Wind Exercise Equipment, and it was manufactured  [****2] by Hoist Fitness Systems, Inc. The bench could be used in decline, flat, or incline positions, and was held in position by an adjustable T-bar. Brooten was using the bench to bench press when the portion of the bench under his back collapsed from a flat position to a decline position. The bench collapsed because the T-bar was loose and shifted laterally.

 [*P3]  According to Hoist's product support manager, Mario Lopez, if the bench's T-bar is properly installed and the supporting bolts tightened, the bar would not move from side to side. Lopez opined that the bolts securing the T-bar on the bench "were not sufficiently tightened, and ... the product was not correctly assembled or maintained on the day of the accident." The bench was not manufactured with any locking mechanism to secure the T-bar in position.

 [*P4]  [**255]  Chetek Fitness requires every customer to sign a waiver form before they are permitted to use the facility. It reads:

Waiver and Release of Liability

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2013 WI App 71 *; 348 Wis. 2d 251 **; 831 N.W.2d 445 ***; 2013 Wisc. App. LEXIS 370 ****; 2013 WL 1809763

RONALD J. BROOTEN, PLAINTIFF-APPELLANT-RESPONDENT, v. HICKOK REHABILITATION SERVICES, LLC D/B/A CHETEK THERAPY & FITNESS, CHETEK THERAPY & FITNESS, LLC AND CHETEK FITNESS 24/7 AND WEST BEND MUTUAL INSURANCE COMPANY, DEFENDANTS-RESPONDENTS, HOIST FITNESS SYSTEMS, INC., WAUSAU INSURANCE COMPANY, THE PYRAMID LIFE INSURANCE COMPANY AND UNITED STATES CENTERS FOR MEDICARE & MEDICAID SERVICES, DEFENDANTS, 2ND WIND EXERCISE EQUIPMENT, DEFENDANT-CO-APPELLANT.

Prior History:  [****1] APPEAL from a judgment of the circuit court for Barron County: JAMES C. BABLER, Judge. Cir. Ct. No. 2010CV523.

Disposition: Reversed and cause remanded.

CORE TERMS

public policy, waive, exculpatory clause, use of equipment, unenforceable, exculpatory, volunteers, employees, risks

Civil Procedure, Summary Judgment, Entitlement as Matter of Law, Appropriateness, Appeals, Summary Judgment Review, Standards of Review, Genuine Disputes, Legal Entitlement, Torts, Defenses, Exculpatory Clauses, General Overview, Interpretation, Agreements Affecting Public Interest, Bargaining Power, Intentional & Reckless Acts