Hague v. Summit Acres Skilled Nursing & Rehab.

[Cite as Hague v. Summit Acres Skilled Nursing & Rehab., 2010-Ohio-6404.]
STATE OF OHIO, NOBLE COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

RUTH HAGUE ) CASE NO. 09 NO 364
)
PLAINTIFFS-APPELLANTS )
)
VS. ) OPINION
)
SUMMIT ACRES SKILLED NURSING )
& REHABILITATION )
)
DEFENDANTS-APPELLEES )

CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common
Pleas of Noble County, Ohio
Case No. 208-0066

JUDGMENT: Affirmed.

APPEARANCES:

For Plaintiff-Appellant: Atty. Miles D. Fries
Gottlieb, Johnston, Beam & Dal Ponte
320 Main Street
P.O. Box 190
Zanesville, Ohio 43702-0190

For Defendant-Appellee: Atty. Christopher S. Humphrey
Buckingham, Doolittle & Burroughs, LLP
4518 Fulton Drive, NW
P.O. Box 35548
Canton, Ohio 44735-5548

JUDGES:

Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Dated: December 17, 2010
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WAITE, J.

{¶1} Appellants, Ruth and Robert Hague, appeal the judgment entry of the

Noble County Court of Common Pleas granting summary judgment against them and

in favor of Appellees, Summit Acres and Summit Acres Skilled Nursing &

Rehabilitation (“SASNR”) in this negligence and loss of consortium action. Ruth was

injured on a treadmill at Summit Acres fitness center, and Appellants assert that

Appellees were negligent in failing to provide any instruction or supervision on her

first day at the facility.

{¶2} As a part of the membership process, Ruth signed the following

release:

{¶3} “I agree that by using the fitness center, I am responsible for my

actions. I agree that summit acres, inc. Is [sic] not liable for any injuries that I might

receive by my use of the fitness center. I have checked with my doctor about the

exercise program I am commencing upon.”

{¶4} Appellees argued that Ruth executed a valid release and, thus, the

negligence claim should be dismissed as a matter of law. The trial court agreed

citing McAdams v. McAdams (1909), 80 Ohio St. 232, 88 N.E. 542, for the

proposition that Ruth was bound by the release. (8/11/09 J.E., p. 2.)

{¶5} In their sole proposition of law, Appellants argue that the release is

ambiguous and there exists a genuine issue of material fact regarding the parties’

intentions in executing the release. While we agree that the release is ambiguous

pursuant to Ohio law, we affirm the decision of the trial court based on the alternative
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theory raised in the motion for summary judgment, the doctrine of primary

assumption of the risk.

{¶6} An appellate court conducts a de novo review of a trial court’s decision

to grant summary judgment, using the same standards as the trial court as set forth

in Civ.R. 56(C). Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105, 671

N.E.2d 241. Before summary judgment can be granted, the trial court must

determine that (1) no genuine issue as to any material fact remains to be litigated, (2)

the moving party is entitled to judgment as a matter of law, and (3) it appears from

the evidence that reasonable minds can come to but one conclusion, and viewing the

evidence most favorably in favor of the party against whom the motion for summary

judgment is made, the conclusion is adverse to that party. Temple v. Wean United,

Inc. (1977), 50 Ohio St.2d 317, 327, 364 N.E.2d 267. When a court considers a

motion for summary judgment, the facts must be taken in the light most favorable to

the nonmoving party. Id.

{¶7} “[T]he moving party bears the initial responsibility of informing the trial

court of the basis for the motion, and identifying those portions of the record which

demonstrate the absence of a genuine issue of fact on a material element of the

nonmoving party's claim.” (Emphasis sic.) Dresher v. Burt (1996), 75 Ohio St.3d

280, 296, 662 N.E.2d 264. If the moving party carries its burden, the nonmoving

party has the reciprocal burden of setting forth specific facts showing that there is a

genuine issue for trial. Id. at 293, 662 N.E.2d 264. In other words, in the face of a

properly supported motion for summary judgment, the nonmoving party must produce
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some evidence that suggests that a reasonable factfinder could rule in that party’s

favor. Brewer v. Cleveland Bd. of Edn. (1997), 122 Ohio App.3d 378, 386, 701

N.E.2d 1023.

{¶8} Before the trial court on summary judgment were the deposition of Ruth

Hague; the affidavits of Don Crock, a SASNR administrator; Judy Robinson, the

Summit Acres’ manager who accepted Ruth’s application for a renewal membership;

and Chris Singer, a registered nurse who attended to Appellant after she fell from the

treadmill. Robinson provided two affidavits, one recounting the events of January 18,

2008, and another attesting to the fact that the treadmill at issue was functioning

properly on that date.

{¶9} According to the Crock affidavit, SASNR does not operate the Summit

Acres fitness center. (Crock Aff., ¶4.) The statements in Crock’s affidavit are

unrebutted. Therefore, the summary judgment entered in favor of SASNR was not

erroneous and Ruth’s counsel has admitted as much in argument of the appeal.

{¶10} The following facts are undisputed unless otherwise noted. When Ruth,

who was 67 years old at the time, applied for a renewal membership at Summit Acres

in 2008, she told Robinson that she was a former member, but that she had been a

member a long time ago. (Hague Depo., Vol. II, pp. 32-33, 68.) Ruth conceded that

Robinson did not hear the comment about the length of time since her previous

membership, because she thought Robinson was following her into the fitness

center, when, in fact, Robinson had turned in the opposite direction. (Hague Depo.,

Vol. II, p. 75.)
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{¶11} Ruth had been a member in 2003. Ruth conceded that in 2003 staff

members were never present in the fitness center at Summit Acres. (Hague Depo.,

Vol. I, pp. 82-84.) Ruth also conceded that the instructions she received on the

treadmill she used in 2003 came from a fellow member, not a staff person. (Hague

Depo., Vol. II, p. 24.) Ruth stated that she did not recall seeing any posters or

instruction sheets posted near the treadmill in either 2003 or 2008. (Hague Depo.,

Vol. II, p. 30.) In addition to using the treadmill at the fitness center in 2003, Ruth

had used her daughter’s treadmill approximately one year before the accident.

(Hague Depo., Vol. II, p. 73.)

{¶12} According to Ruth, she did not ask for any assistance when she entered

the fitness center because there was no one there to ask. (Hague Depo., Vol. II, p.

60.) She claimed that the treadmill she used was not the same one she used in

2003. (Hague Depo., Vol. II, p. 34.) She stated that she stepped onto the treadmill

and “pushed one and it had one, two, three, and then there was a big, red stop, and

then four, five, six under that.” (Hague Depo., Vol. II, p. 64.)

{¶13} According to a photograph of the panel on the treadmill attached to the

motion for summary judgment, the red button located near the number buttons was

not the “stop” button, but was instead the “start/enter” button. The photograph

depicts only a portion of the panel and the “stop” button does not appear in the photo.

Appellant does not allege that the treadmill malfunctioned.

{¶14} Ruth walked on the treadmill for about a minute when she claims the

machine jerked and started increasing in speed. She “probably hit [the stop button]
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15 times and it didn’t stop.” (Hague Depo., Vol. II, p. 66.) She called for help but no

one responded. She lost her footing on the treadmill and the treadmill pulled her legs

back, but she held on to the front bar of the treadmill for approximately two minutes

and thirty seconds before releasing the front bar. (Hague Depo., Vol. II, pp. 66-68.)

She stated that she never thought to step off of the treadmill, because she was

focused on pushing the red button. (Hague Depo., Vol. II, p. 72.)

{¶15} According to Robinson, she asked Ruth if she needed any instruction

before using the fitness equipment, but Ruth assured her that she was a former

member of the fitness center. (8/4/08 Robinson Aff., ¶5.) Robinson further stated

that the manufacturer’s instructions for the use of the treadmill were posted on the

wall next to the machine. This posting was located next to a sign that reads,

“PLEASE BE CAREFUL” and “[u]ser assumes all liability due to injury or fall while

using exercise equipment and walking track.” (8/4/08 Robinson Aff., ¶8-9.) In

addition to the photographs of the treadmill at issue, photos of the area surrounding

the treadmill were attached to Robinson’s affidavit, as well as copies of the treadmill

instructions and signs posted in the fitness center, and a copy of Ruth’s renewal

membership application.

{¶16} According to Singer’s affidavit, immediately after the accident Ruth

conceded that she was at fault because she had used a treadmill in the past and

knew how to operate it. (Singer Aff., ¶6.) A statement that was prepared by Singer

on the day of the accident is attached to her affidavit. Singer claims that Ruth said, “I

knew how to step to the side, but didn’t do it.” (Singer Aff., ¶8.) Singer further said
 -7-

that the staff at Summit Acres wanted to call an ambulance, but Ruth insisted that

they call her daughter to pick her up at the fitness center and take her to the

emergency room. (Singer Aff., ¶9.)

{¶17} Although her exact injuries are not clearly delineated in the record, it

does appear that Ruth broke both of her shoulders, and spent a considerable amount

of time in residential rehabilitation centers. In her deposition, which was taken in two

parts approximately one year after the accident, she stated that her husband must

help her dress and bathe due to her injuries.

{¶18} It is important to note that Appellant had a litany of medical problems

prior to the accident (diabetes, Wolff Parkinson White Type A, two strokes, mitrovalve

prolapse, high blood pressure, high cholesterol, congestive heart failure, obesity,

pacemaker). (Hague Depo., Vol. I, pp. 37-42.) Ruth stated that her doctor told her

that she needed to exercise, but that her doctor had not specifically authorized the

use of a treadmill.

PROPOSITION OF LAW

{¶19} “A DOCUMENT PURPORTING TO BE A WAIVER OF LIABILITY

SHOULD NOT BE ENFORCED AGAINST AN INURED [SIC] PARTY UNLESS AN

INTENT TO RELEASE ONE FOR LIABILITY FOR NEGLIGENCE IS EXPRESSED

IN CLEAR AND UNEQUIVOCAL TERMS.”

{¶20} Releases from liability for future tortious conduct are generally not

favored by the law and are narrowly construed. Glaspell v. Ohio Edison Co. (1987),

29 Ohio St.3d 44, 46-47, 505 N.E.2d 264; Swartzentruber v. Wee-K Corp. (1997),
 -8-

117 Ohio App.3d 420, 424, 690 N.E.2d 941; see, also, Thompson v. Otterbein

College (Feb. 6, 1996), 10th Dist. No. 95APE08-1009. Nonetheless, courts routinely

apply such releases to bar future tort liability as long as the intent of the parties, with

regard to exactly what kind of liability and what persons and/or entities are being

released, is stated in clear and unambiguous terms. See, e.g., Lamb v. University

Hospitals Health Care Enterprises, Inc., 8th Dist. No. 73144 (clause including word

“release” and “negligence” as well as specifically identifying persons released from

liability sufficiently clear to release fitness club from liability for injuries);

Swartzentruber, supra, at 424-427 (language releasing livery stable from “any and all

claims” that arose out of “any and all personal injuries” was sufficiently clear and

specific to bar injured horseback rider’s negligence claims); Conkey v. Eldridge (Dec.

2, 1999), 10th Dist. No. 98AP-1628, *5 (language in rental agreement releasing

owner from “all liability for personal injuries, property damage, loss from theft,

vandalism, fire, water, explosion, rodent damage, or any other causes” was

sufficiently specific and clear to bar renter’s claim arising out of theft of race car

stored on owner's property).

{¶21} On the other hand, where the language of the release is ambiguous or

too general, courts have held that the intent of the parties is a factual matter for the

jury. See, e.g., Bowman v. Davis (1976), 48 Ohio St.2d 41, 44-45, 356 N.E.2d 496

(medical consent form purporting to absolve physician and hospital “from

responsibility for any untoward or unfavorable results” from surgery was ineffective

because it failed to mention release from liability for negligence and failed to explain
 -9-

unfavorable results); Holmes v. Health & Tennis Corp. of Am. (1995), 103 Ohio

App.3d 364, 659 N.E.2d 812 (health club membership contract stating that member

used facilities at his “own risk” and that club would not be liable for any injury or

damage resulting from use of the facilities failed to express a clear and unambiguous

intent of member to release health club from its negligence); Tanker v. N. Crest

Equestrian Ctr. (1993), 86 Ohio App.3d 522, 621 N.E.2d 589 (language that

horseback rider assumed “full responsibility and liability” for any and all personal

injury associated with the riding of any horse at equestrian center was so general as

to be meaningless); see, also, Isroff v. Westhall Co. (Feb. 21, 1990), 11th Dist. No.

14184, *2, unreported (“[i]t is a well-recognized rule that a release that is so general

that it includes within its terms claims of which the releasor was ignorant, and thus

not within the contemplation of the parties when the release was executed, will not

bar recovery of such claims”).

{¶22} “The pivotal inquiry is whether it is clear from the general terms of the

entire contract, considered in light of what an ordinary prudent and knowledgeable

party of the same class would understand, that the proprietor is to be relieved from

liability for its own negligence.” Swatzentruber v. Wee-K Corp. (1997), 117 Ohio

App.3d 420, 425, 690 N.E. 2d 941. It is undisputed that the release did not clearly

state that Ruth was waiving liability for negligence on the part of the facility or its staff.

{¶23} The watershed case involving injuries sustained at a fitness club is the

Tenth District case of Jacob v. Grant Life Choices Fitness Center (June 4, 1996),

10th Dist. No. 95APE12-1633. In Jacob, the Court held that language in membership
 -10-

agreement releasing the fitness center from liability for any injury or damage

including damages resulting from, “acts of active or passive negligence on the part of

the Center, its officers or agents,” barred the member’s negligence claims against the

fitness center. Id. at *1. The Supreme Court denied the plaintiff’s motion for a

discretionary appeal in Jacobs. See Jacobs v. Grant Life Choices Fitness Center

(1996), 77 Ohio St.3d 1482, 673 N.E.2d 143.

{¶24} More recent cases have likewise required an explicit statement

releasing the defendant from its negligence or the negligence of its agents. Baker v.

Just for Fun Party Ctr., L.L.C. (2009), 185 Ohio App.3d 112, 2009-Ohio-6201, 923

N.E.2d 224, ¶4 (“I knowingly and freely assume all such risks, both known and

unknown, and however arising, even if arising from the negligence of other

participants and employees. I will assume full responsibility for the participants listed

below” is unambiguous release); Brown v. Columbus All-Breed Training Club, 152

Ohio App.3d 567, 2003-Ohio-2057, 789 N.E.2d 648, ¶19 (release insufficient to give

clear notice to the signer that she has waived all prospective rights to compensation

from any negligent activity on the part of dog training company and employee).

{¶25} The only exception of note occurred in Hall v. Woodland Lake Leisure

Resort Club, Inc. (October 15, 1998), 4th Dist. No. 97CA945. In Hall, the Fourth

District concluded that the release at issue barred the plaintiff’s recovery for the

club’s negligence, despite the fact that the term “negligence” was not actually

included in the release. The release in that case read:
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{¶26} “All facilities at the resort are used by members and their guests at their

own risk. The Club will not be responsible or liable for the loss or damage to any

property of the members or guests or any bodily injury or death due to the condition

or operation of the Resort. The Club has no duty to protect guests or members or

their property from damage or injury * * *.” Id. at *1.

{¶27} The Hall Court decided that the foregoing language sufficiently apprises

an individual that the club is released from liability for its own negligence.

{¶28} Here, the release signed by Ruth does not contain the words, “release”

or “negligence,” and does not identify the individuals, company or corporation being

released from liability. The release simply states that Summit Acres is not liable for

any injuries that Appellant might receive “by [her] use of the fitness center.” “For

express assumption of risk to operate as a bar to recovery, the party waiving his right

to recover must make a conscious choice to accept the consequences of the other

party’s negligence.” Holmes, supra, at 367. Hence, the release in this case is of the

type that have been characterized by Ohio courts as too ambiguous and general.

{¶29} Appellees urge that in most cases cited by Appellants, the plaintiffs

asserted negligence on the part of the defendant’s staff. For instance, in Holmes,

supra, a health club employee failed to “spot” the plaintiff while he was lifting weights.

Appellees argue:

{¶30} “[Ruth] does not claim vicarious liability based on the negligence of an

employee. Rather, she alleges the failure of the Summit Acres to instruct and

supervise her on how to use the treadmill. * * * She does not claim that any employee
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of Summit Acres negligently breached a duty to her, but, rather, alleges a direct claim

against Summit Acres.

{¶31} “In light of the language in the waiver that [Ruth] was ‘responsible for

her own actions’ while using the exercise equipment, there is no fact issue as to the

scope of the waiver in covering the liability alleged here. [Ruth] used it at her own

risk, and the waiver bars her claim.” (Appellees’ Brf. ,p. 9.)

{¶32} Appellees apparently believe that the type of negligence alleged in this

case is distinguishable from the negligence alleged in the previous cases. However,

Appellants base their contentions on the claim that Ruth was injured as a result of

Robinson’s failure to provide adequate instruction on the treadmill and her failure to

supervise Ruth.

{¶33} Based on Ohio law in this matter, it appears that the release is this case

was ambiguous, and the intent of the parties with respect to the release should be a

factual matter for the jury. Therefore, the trial court erred in entering summary

judgment in favor of Summit Acres based solely on the release.

{¶34} In the alternative, Appellees posit that, even if the release in this case

does not support the award of summary judgment, recovery on the negligence claim

is barred by the doctrine of primary assumption of the risk. Appellees raised a

primary assumption of the risk argument in their motion for summary judgment,

although this argument was not addressed by the trial court.

{¶35} To establish a claim of negligence in Ohio, a plaintiff must show the

existence of a duty, a breach of that duty, and injury directly and proximately resulting
 -13-

from a breach of the duty. Menifee v. Ohio Welding Prods., Inc. (1984), 15 Ohio

St.3d 75, 77, 472 N.E.2d 707. The existence of a duty in a negligence action is a

question of law. Wallace v. Dept. of Commerce, Div. of State Fire Marshal, 96 Ohio

St.3d 266, 2002-Ohio-4210, 773 N.E.2d 1018, ¶ 22.

{¶36} Primary assumption of the risk has been defined as “ ‘* * * (1) consent

or acquiescence in (2) an appreciated or known (3) risk * * *.’ ” Anderson v. Ceccardi

(1983), 6 Ohio St.3d 110, 112, 451 N.E.2d 780, quoting Benjamin v. Deffet Rentals

(1981), 66 Ohio St.2d 86, 89, 419 N.E.2d 883. The doctrine is applicable as a

defense where “the risk is so obvious that plaintiff must have known and appreciated

it.” Id. Primary assumption of the risk is the judicially created affirmative defense

whereby a defendant owes no duty to protect a plaintiff against certain risks that are

so inherent in an activity that they cannot be eliminated. Sproles v. Simpson Fence

Co. (1994), 99 Ohio App.3d 72, 78, 649 N.E.2d 1297. Primary assumption of the risk

is a complete bar to recovery because the essential element of duty is negated.

Anderson at 114.

{¶37} The doctrine of primary assumption of the risk has most often been

applied in cases involving sports and recreational activities. To be covered under the

doctrine, the risk must be one that is so inherent to the sport or activity that it cannot

be eliminated. Kelly v. Roscoe, 185 Ohio App.3d 780, 2009-Ohio-4279, 925 N.E.2d

1006, ¶20. We applied the doctrine last year in Kelly where we concluded that the

use of a trampoline involves such a risk.
 -14-

{¶38} The Fifth District has twice considered the primary assumption of the

risk doctrine as it applies to injuries sustained on treadmills. Although the Fifth

District declined to apply the doctrine in both cases, the facts in those cases are

easily distinguishable from the facts in the instant case.

{¶39} In Darling v. Fairfield Medical Center (2001), 142 Ohio App.3d 682, 756

N.E.2d 754, the plaintiff, who had a treadmill in her basement, was using the facility’s

treadmill as a part of a prescribed rehabilitation program. The treadmill at the facility

had no side rails; they had been removed, contrary to the manufacturer’s operation

manual. The appellees in that case asserted the doctrine of primary assumption of

the risk.

{¶40} While it appears that the matter would avoid summary judgment on the

basis of the facility’s use of defective equipment, alone, the Darling Court went on to

distinguish the physical therapy patient at issue from invitees of health club facilities.

Ultimately, the court concluded that physical therapy patients, who were using the

facility based on doctor’s orders and were medically required to participate in

rehabilitation, were inherently more likely to lose their balance or trip than ordinary

health club patrons. The Fifth District stated:

{¶41} “Appellee’s facility, as previously stated, was a controlled medical

rehabilitation facility where only health care patients were permitted to continue in an

exercise program, which was monitored by appellee’s staff. It is unlike a ride at an

amusement park or attendance at a sporting event. The very nature of the closed

environment sets this facility apart from commercially advertised spas and health
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clubs. We find that the doctrine of primary assumption of the risk is not applicable,

but that the issues of breach of duty, proximate cause, and comparative negligence

are viable.” (Emphasis added) Id. at 689.

{¶42} Earlier this year, the Fifth District reversed the entry of summary

judgment against a fitness center patron who fell from a treadmill after intentionally

pushing the acceleration button in Bennington v. Ladies Super Fitness, Inc. 5th Dist.

No. 2009 CA 0085, 2010-Ohio-1645. In that case, the plaintiff had never used a

treadmill. The fitness center employee programmed the treadmill for the plaintiff, but

the plaintiff decided that she wanted to walk faster, and ultimately fell from the

treadmill and dislocated her shoulder.

{¶43} In her instructions as to the use of the machine, the fitness center

employee claimed that she told the plaintiff not to push the acceleration button and

that she might fall from the treadmill if it was accelerated. The plaintiff claimed that

the fitness center employee pointed out the acceleration button but provided no

information about it. The center argued on summary judgment that the dangers

associated with a treadmill are open and obvious, and that the plaintiff assumed the

risk of injury.

{¶44} In a 2-1 decision, the Fifth District concluded that genuine issues of

material fact existed as to whether the plaintiff knew of the dangerous condition of

accelerating the speed of the treadmill, since there was conflicting testimony

regarding the amount of information provided to the plaintiff prior to using the

treadmill. Id. at ¶28. The decision, however, hinged on the fact that once the
 -16-

employees of the center undertook to aid and/or instruct plaintiff in her use of the

center, they created a duty to do so in a safe manner.

{¶45} The dissent observed that the open and obvious doctrine involves an

objective rather than subjective test, and, as a consequence, whether the plaintiff

actually knew about the danger was irrelevant. Furthermore, because the plaintiff

admitted that the fitness center employee called the acceleration button to her

attention, the danger inherent in pushing the button was open and obvious.

{¶46} Unlike the facts in the Fifth District cases, the facts in the instant case

establish that Ruth assumed an appreciated risk when she used the treadmill. The

fitness center at Summit Acres was open to the public, although it was also used as a

rehabilitation facility and was located adjacent to a residential rehabilitation center.

Ruth was a paying member of the public, not a rehabilitation patient, and there is no

allegation that the treadmill was not assembled pursuant to the manufacturer’s

specifications.

{¶47} Ruth was aware that not all treadmills are the same, as she had used

the treadmill at the fitness center in 2003 and her daughter’s treadmill approximately

one year before the accident. She conceded that the treadmill at the fitness center

did not appear to be the same treadmill from her 2003 visits. She further conceded

that she knew the fitness center was never supervised and that she relied on a fellow

Summit Acres member to provide instructions on the operation of the treadmill in

2003. Unlike the fact pattern in Bennington, there is no factual question regarding

what, if any, instructions were given to Ruth about the treadmill. Furthermore,
 -17-

although Ruth testified that she did not see the treadmill instructions or the warnings

posted by the machine, Robinson’s affidavit and the photographs attached to the

affidavit establish that the instructions and warnings were clearly posted.

{¶48} Finally, Ruth signed a release in this case. The language in the release

was sufficiently ambiguous to call into question whether Ruth waived any recovery

based upon injuries she sustained as a result of Summit Acres’ negligence or the

negligence of its employees. However, the release put Ruth on notice of the fitness

center’s intent to limit its liability for injuries sustained due to her own negligence.

Therefore, based on all of the undisputed facts in the record, the primary assumption

of the risk doctrine applies in this case.

{¶49} Accordingly, the judgment entry of the trial court granting summary

judgment to Appellees is affirmed, albeit for different reasons than stated in the

judgment entry with respect to Summit Acres and SASNR.

Donofrio, J., concurs.

Vukovich, P.J., concurs.