[Cite as Bennett v. Biernacki,

.]

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. -2- Warren CA2022-05-030

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,

,

, ¶ 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.,

,

.

{¶ 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.,

,

(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,

, quoting Adelman v. Timman,

(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

; Mussivand v. David,

(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,

, *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,

(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,

. 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,

,

. 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.,

(1988); Winkle,

, 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,

(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)."

"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[.]"

(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,

, ¶ 7, citing Dupler v.

Mansfield Journal Co.,

(1980); see also Murphy v. Reynoldsburg,

(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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