Deacon v Planet Fitness Holdings (Pty) Ltd

• Jurisdiction: South Africa

Deacon v Planet Fitness Holdings (Pty) Ltd
2016 (2) SA 236 (GP)

2016 (2) SA p236

Citation	2016 (2) SA 236 (GP)
Case No	8197/2012
Court	Gauteng Division, Pretoria
Judge	Louw J
Heard	August 11, 2014; August 12, 2014
Judgment	October 6, 2014
Counsel	No counsel details supplied

Flynote : Sleutelwoorde F

G Delict — Elements — Unlawfulness or wrongfulness — Liability for omission — Failure to warn that only one person could exit drop-arm barrier at time.

Headnote : Kopnota

Plaintiff had attempted to follow her son through the drop-arm barrier at the exit of defendant's gym, and as she did so the arm rose and hit her on the leg, causing her to fall. (The barrier was designed to allow the egress of one H person at a time only — the arm dropping on a button being depressed, allowing one person to pass through, that person breaking an infrared beam, which in turn activated the mechanism to raise the arm.) As a result of the fall the plaintiff suffered injuries, from which flowed damages, for which she sued the defendant. (Paragraph [9] at 239I.)

I In issue was the wrongfulness of the defendant's failure to warn that only one person could exit at a time. (Paragraphs [16] – [17] at 241E – F.)

Held, that the omission was not wrongful. This was on the basis that the workings of such barriers — allowing only one person to alight at a time — were familiar to all people; and that the defendant could not have foreseen that the plaintiff would attempt to exit in such a way. (Paragraphs [22] – [23] and [25] J at 243A – C and 243E.) Action dismissed.

2016 (2) SA p237

Cases Considered

Annotations A

Case law

Barkhuizen v Napier 2007 (5) SA 323 (CC) (2007 (7) BCLR 691; [2007] ZACC 5): referred to

Brisley v Drotsky 2002 (4) SA 1 (SCA) (2002 (12) BCLR 1229; [2002] 3 All SA 363; [2002] ZASCA 35): referred to B

Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) ([2002] 3 All SA 741; [2002] ZASCA 79): dictum in para [12] applied

Naidoo v Birchwood Hotel 2012 (6) SA 170 (GSJ): considered

Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA 2006 (1) SA 461 (SCA) ([2006] 1 All SA 6; [2005] ZASCA 73): dicta in paras [12] – [13] applied. C

Judgment

Louw J:

Introduction D

[1] On 9 January 2009 the plaintiff signed a membership agreement with the defendant. In terms of that agreement she was entitled to use the Centurion Gate Planet Fitness gymnasium (the gym).

[2] On 2 March 2009 as she exited the gym she tripped and fell at the E 'Alltech drop arm barrier' (the barrier). On the grounds set out hereunder she claims that she was injured and suffered damages in the amount of R600 000 which is now claimed from the defendant. By agreement and my order the quantum and merits were separated. I thus only have to deal with the liability or not of the defendant. F

[3] The drop-arm barrier has its arm in the horizontal position when it is closed. When, on exit, somebody pushes a button the arm falls downwards into the 'housing' where the motor is situated. Thus in the 'open' position the arm is in a vertical position and out of sight.

[4] The following description by an expert of how this barrier operates G was agreed on between the parties and I thus quote from the expert notice:

'4.

The Barrier was designed to provide access or exit control and the Barrier will be in a closed position when not in use.

5.

Access or exit control is provided by a push button or card reader. H In the case of the Defendant's gym, access was provided with a push button.

6.

When the push button is pressed, the barrier drops and the pedestrian who exits through the Barrier breaks a protection beam which is an infrared beam that shines across the opening of the I Barrier.

7.

The Barrier will restore to its home position by means of a trigger from the protection beam once the pedestrian has passed through the Barrier.

8.

The protection beam cannot be adjusted in any manner and the Barrier is designed to permit only one pedestrian to exit at a time. J

2016 (2) SA p238

Louw J

9.

A Mr Millward [the expert] considered a video recording of the incident that took place on or about 2 March 2009 when Plaintiff tripped and fell at the exit of the Defendant's gym.

10.

The Barrier installed at the exit was an Alltech Drop Arm Barrier.

11.

The Barrier was installed according to the manufacturer's specifications and the Barrier functioned normally and according to B specifications in the manner in which it was designed.'

[5] A short video clip illustrating how the plaintiff tripped and fell was shown in court. It appears that she exited right behind her son (she was able to touch him) when the barrier swung upwards, hitting her right leg more or less in the middle of the lower leg, as a result of which she fell.

C [6] The manual for the barrier contains the following notice:

'Only one person at a time should pass through the barrier — no tailgating permitted.'

[7] The plaintiff testified that it was only her eighth visit to the gym. She was not aware of the fact that only one person could exit at a time D and had never checked behind her how long it took for the barrier to rise from its vertical position in the housing. She testified that she always exercised at quiet times of the day and also had not seen how the arm operated when a person exited in front of her. She testified that she had 'the feeling' that there would be enough time for her to exit behind her E son.

The contract

[8] On the back of the application for membership in small print are the following relevant clauses:

F 'LIMITATION OF LIABILITY

Under no circumstances will Planet Fitness, its officers, directors, shareholders, employees, agents and representatives (and the successors, heirs and assigns of the foregoing) be liable for any consequential, indirect, special, punitive or incidental damages, whether foreseeable or unforeseeable based on claims of the Member arising out of breach or G failure of express or implied warranty, breach of contract, misrepresentation, negligence, strict liability in delict or otherwise, whether based on this membership contract, any commitment performed or undertaken under or in connection therewith or otherwise.

In no event will the aggregate liability which Planet Fitness may incur in any action or proceeding exceed, the lesser of, the aggregate of the H membership fees paid to Planet Fitness in terms of this membership contract for the period of 6 months preceding the date of notification of any claim.

In the event where any third party is successful in any claim against Planet Fitness, which exceeds Planet Fitness' liability in terms of this membership contract, then the member, by entering into this I membership contract, indemnifies Planet Fitness, and shall reimburse Planet Fitness, on demand for all payments, damages and costs (including but not limited to legal fees on attorney and client scale).

USE OF THE FACILITIES

It is specifically recorded that use of the equipment, sporting and other J facilities of the clubs (the equipment) are strictly at the risk of the

2016 (2) SA p239

Louw J

member. The member shall use the equipment with all reasonable skill A and care and in accordance with the manufacturer's suggested or stipulated specifications as laid down in any documentation or manual and hereby undertakes to pay Planet Fitness for all and any damage to the equipment caused by the member or persons using the same with the member's authorisation.

WARRANTY B

I warrant and represent (being a material representation) that I am physically and medically fit to proceed with the normal routine of exercise and I will defend at my expense, indemnify and hold Planet Fitness harmless against any damages or expenses, that may occur, and pay any costs, damages or legal fees and costs awarded against Planet C Fitness resulting from a breach of this clause.

Before exercising in any exercise programme, one should consult with a physician and only upon obtaining medical clearance should one participate in an exercise routine. Planet Fitness is not liable for any injury or death occurring directly or indirectly from any training. D Improper use of the equipment, sporting and other facilities of the clubs may result in serious harm and injury (including death). Please ensure that you are well informed by a training specialist before participating in supervised or unsupervised training. Due to the high risk of injury use of a spotter when using free weights is recommended. E

The member hereby indemnifies and holds harmless Planet Fitness, its officers, directors, shareholders, employees, agents and representatives and the successors, heirs and assigns of the foregoing from and against any and all claims, demands, actions, causes of action, suits, proceedings, losses, damages costs and expenses (including but not limited to attorney's fees on an attorney and own client scale) arising out of or in F connection with this membership contract, any act or omission of Planet Fitness, any obligation or representation or warranty of Planet Fitness hereunder, without limitation claims arising from the...