Gold's Gym Motion for Summary Judgment

Case 1:18-cv-00047-WJM-KMT Document 28 Filed 08/23/18 USDC Colorado Page 1 of 15
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO
Civil Action No.: 1:18-CV-00047 - WJM-KMT
ANNEMICHELLE JOHNSON,
Plaintiff,
v.
GOLD'S GYM ROCKIES, LLC, a Delaware Limited Liability,
Defendant.
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Defendant, Gold’s Gym Rockies, LLC (“Gold’s Gym”), by and through its attorneys,
Sutton | Booker | P.C., hereby submits the following Motion for Summary Judgment:
I. Introduction
Gold’s Gym operates fitness clubs in Colorado Springs, Colorado. Plaintiff
AnneMichelle Johnson (“Plaintiff”) joined Gold’s Gym on May 25, 2015 by executing a Gold’s
Gym Membership Agreement (the “Membership Agreement”). In the Membership Agreement,
Plaintiff voluntarily agreed to assume all risks of personal injury and waived any and all claims
that Plaintiff may have against Gold’s Gym. At the time Plaintiff executed her Membership
Agreement, she understood (1) the terms and effect of the Membership Agreement; (2) that from
time to time gym equipment can malfunction, and (3) that there is an inherent risk to exercising,
which includes the risk of broken bones and/or muscle strains.
Then, on January 5, 2016, Plaintiff alleges she was injured while using a seated cable
rowing machine at the Rustic Hill’s Gold’s Gym in Colorado Springs, Colorado.
Despite her waiver of claims for personal injuries, Plaintiff filed this action against
Gold’s Gym alleging a premises liability claim, arising under Colorado’s Premises Liability Act,
C.R.S. § 13-21-115. Plaintiff’s claim, as alleged in her First Amended Complaint, is barred by
the valid and enforceable waiver of liability and assumption of the risk provisions in Plaintiff’s
Membership Agreement.
This Motion seeks enforcement of the exculpatory provisions in Gold’s Gym’s
Membership Agreement. Summary judgment is appropriate because Plaintiff waived her claims
against Gold’s Gym when she executed her Membership Agreement. Thus, Plaintiff’s First
Amended Complaint should be dismissed with prejudice and Gold’s Gym should be awarded its
costs.
II. Movant’s Statement of Material Facts 1
1. Plaintiff executed a Membership Agreement with Gold’s Gym on May 25, 2015.
Exhibit A, Affidavit of Crysten Mosher; Exhibit B, Relevant Portions of Plaintiff’s Answers to
Defendant’s Interrogatories, Requests for Admission and Requests for Production of Documents
to Plaintiff, at 4.
2. Plaintiff read her Membership Agreement. Exhibit C, Relevant Portions of the
Deposition of Plaintiff AnneMichelle Johnson, at 152:8-10.
3. The Membership Agreement contained a waiver of liability provision, which
states:
WAIVER OF LIABILITY: MEMBER ACKNOWLEDGES THAT THE USE OF

GOLD’S GYM’S FACILITIES, EQUIPMENT, MERCHANDISE, SERVICES
AND PROGRAMS (INCLUDING PERSONAL TRAINING) INVOLVES AN
INHERENT RISK OF PERSONAL INJURY TO MEMBER AND MEMBER’S
GUESTS AND INVITEES. MEMBER VOLUNTARILY AGREES TO ASSUME
ALL RISKS OF PERSONAL INJURY TO MEMBER, MEMBER’S SPOUSE,
CHILDREN, UNBORN CHILDREN, OTHER FAMILY MEMBERS, GUESTS OR
INVITEES AND WAIVES ANY AND ALL CLAIMS OR ACTIONS THAT
MEMBER MAY HAVE AGAINST GOLD’S GYM, ANY OF ITS PARENTS,
SUBSIDIARIES OR OTHER AFFILIATES AND ANY OF THEIR RESPECTIVE
1
Referred to herein as “MSMF.”
2
OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS AND

ASSIGNS FOR ANY SUCH PERSONAL INJURY (AND NO SUCH PERSON OR
ENTITY SHALL BE LIABLE TO MEMBER, MEMBER’S SPOUSE, CHILDREN,
UNBORN CHILDREN, OTHER FAMILY MEMBERS, GUESTS OR INVITEES
FOR ANY SUCH PERSONAL INJURY), INCLUDING, WITHOUT
LIMITATION: (I) INJURIES ARISING FROM USE OF ANY EXERCISE
EQUIPMENT, MACHINES AND TANNING BOOTHS OR PERSONAL
TRAINING SERVICES; (II) INJURIES ARISING FROM PARTICIPATION IN
SUPERVISED OR UNSUPERVISED ACTIVITIES AND PROGRAMS IN
EXERCISE ROOMS, RUNNING TRACKS, SWIMMING POOLS, HOT TUBS,
COURTS OR OTHER AREAS OF ANY GOLD’S GYM, (III) INJURIES
ARISING FROM GOLD’S GYM’S NEGLIGENCE, WHETHER DIRECT OR
INDIRECT; (IV) INJURIES, DISEASE, INFECTION OR MEDICAL
DISORDERS RESULTING FROM EXERCISING AT ANY GOLD’S GYM,
INCLUDING HEART ATTACKS, STROKES, HEAT STRESS, SPRAINS,
BROKEN BONES AND TORN OR DAMAGED MUSCLES, LIGAMENTS OR
TENDONS; AND (V) ACCIDENTAL INJURIES WITHIN ANY GOLD’S GYM
FACILITIES, INCLUDING LOCKER ROOMS, STEAM ROOM, WHIRLPOOLS,
HOT TUBS, SPAS, SAUNAS, SHOWERS AND DRESSING ROOMS. MEMBER
ALSO WAIVES ALL CLAIMS AGAINST GOLD’S GYM, ANY OF ITS
PARENTS, SUBSIDIARIES OR OTHER AFFILIATES AND ANY OF THEIR
RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS,
SUCCESSORS AND ASSIGNS FOR ANY CLAIMS MEMBER MAY HAVE
UNDER ANY OF THE STATE’S CONSUMER PROTECTION STATUTES.
THE PROVISIONS OF THIS PARAGRAPH SHALL SURVIVE THE
TERMINATION OF THIS AGREEMENT AND MEMBER’S MEMBERSHIP.
Exhibit A at 4 (emphasis in original).
4. Plaintiff read the “Waiver of Liability” section of the Membership Agreement.
Exhibit C at 153:16-21.
5. Below the Waiver of Liability section, the Membership Agreement includes an
“ASSUMPTION OF RISK AND INDEMNIFICATION” provision. Exhibit A at 4
(emphasis in original).
6. In the Assumption of Risk and Indemnification section, Plaintiff acknowledged
that Gold’s Gym does not manufacture the equipment at Gold’s Gym facilities. Thus, Gold’s
Gym shall not be held liable for any defective equipment. Plaintiff agreed to indemnify Gold’s
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Gym and hold harmless any such party against any claim that is subject to the waiver of liability.
Exhibit A at 4.
7. In the Membership Agreement, Gold’s Gym instructed Plaintiff: “Do not sign this
Agreement until you have read both sides.” Exhibit A at 4 (emphasis in original); Exhibit C at
152:25-153:13.
8. At the time Plaintiff executed the agreement, she understood the effect of
executing the waiver of liability. Exhibit C at 154:5-11. Plaintiff also understood that gym
equipment can malfunction from time to time. Exhibit C at 154:21-24.
9. Plaintiff signed the Membership Agreement. Exhibit A at 4; Exhibit C at
152:25-153:13; 155:4-8. The signature contained on the Membership Agreement is Plaintiff’s
signature. Exhibit A at 4; Exhibit C at 152:25-153:13.
10. Plaintiff signed the Membership Agreement just below the section entitled
“WAIVER OF LIABILITY” and “ASSUMPTION OF RISK AND INDEMNIFICATION”
Exhibit A at 4; Exhibit C at 153:7-13.
11. Plaintiff is familiar with fitness clubs. Between January 2006 and April 2018 she
attended no less than seven different fitness clubs, including Sport and Health, multiple YMCA
locations, LifeTime Fitness, and Gold’s Gym. Exhibit B at 2-3; Exhibit C at 67:16-68:3.
12. Plaintiff previously had memberships at other fitness clubs in Colorado Springs,
Colorado, including LifeTime Fitness and the Downtown YMCA. Exhibit C at 67:16-68:3;
73:23-74:10. Additionally, Plaintiff has the option of utilizing workout equipment at her home
where she can do free weight exercises. Exhibit C at 68:14-20.
13. Plaintiff is familiar with waivers of liability. Plaintiff recalls executing a waiver
of liability when she was a member of Life Time Fitness and Sports & Health before she became
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a member of Gold’s Gym. Exhibit C at 76:16-22, 262:16-263:7. Plaintiff understands that gym
waivers in general require a person to waive their rights if the person is injured on gym
equipment. Exhibit C at 77:3-15.
14. Before the alleged incident, Plaintiff was generally aware that a person could be
injured while working out at a gym facility and that “[t]here is an inherent risk to exercise, in
general.” Exhibit C at 81:6-10. Specifically, when working out “[t]here is the risk of broken
bones, of muscle strains, or loss of consciousness, stroke, [and/or] death. There is a whole host
of physical risks associated” with working out. Exhibit C at 81:23-82:3.
15. On January 5, 2016, Plaintiff allegedly sustained injuries when she used a broken
seated rowing machine at Gold’s Gym. Am. Compl., ECF No. 7, at ¶¶ 4, 6-9.
16. In response to Plaintiff’s Amended Complaint, Gold’s Gym asserted affirmative
defenses to her claim citing the Membership Agreement and waiver. Answer, ECF No. 11, at 4.
III. Legal Standard
Summary judgment should be granted when there is no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). “A party may
move for summary judgment, identifying each claim or defense—or the part of each claim or
defense—on which summary judgment is sought.” Id.
“Although the burden of showing the absence of a genuine issue of material fact rests
with the movant at summary judgment, the nonmovant must do more than simply show that there
is some metaphysical doubt as to the material facts.” Brigance v. Vail Summit Resorts, Inc., 883
F.3d 1243, 1246 n.1 (10th Cir. 2018) (quoting Champagne Metals v. Ken-Mac Metals, Inc., 458
F.3d 1073, 1084 (10th Cir. 2006)) (internal quotation marks omitted).
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“Only disputes over facts that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary judgment.” Atl. Richfield Co. v. Farm Credit
Bank of Wichita, 226 F.3d 1138, 1148 (10th Cir. 2000) (quotation omitted). “[U]nsupported
conclusory allegations do not create a genuine issue of fact.” E.E.O.C. v. C.R. England, Inc., 644
F.3d 1028, 1037 (10th Cir. 2011) (citations omitted).
IV. Gold’s Gym’s Membership Agreement Precludes Plaintiff’s Claim.
“Colorado allows private parties to assume some of the risks associated with their
recreational pursuits. It’s a policy choice that, no doubt, means some losses go uncompensated
but one that also promotes the output and diversity of recreational services consumers may
enjoy.” Espinoza v. Ark. Valley Adventures, LLC, 809 F.3d 1150, 1153 (10th Cir. 2016).
“Colorado common law 2 does not categorically prohibit the enforcement of contracts seeking to
release claims of negligence. Neither does it always preclude exculpatory agreements as to
claims of negligence per se.” Brigance, 883 F.3d at 1249-50 (citing Espinoza, 809 F.3d at 1152,
54-55 (10th Cir. 2016); Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (Colo. 2004)).
The ability to release claims through contract does not extend to a claim of willful and wanton
negligence. Chadwick, 100 P.3d at 467 (citing Jones v. Dressel, 623 P.2d 370, 376 (Colo.
1981)). 3
2
This Court’s jurisdiction is based on diversity of citizenship. See Scheduling Order, ECF No. 27, at 2, 5. Thus,
Colorado substantive law governs the analysis of the plaintiff’s claims and enforceability of the waivers. Brigance,
883 F.3d at 1249 (citing Sylvia v. Wisler, 875 F.3d 1307 (10th Cir. 2017)). The Court
must therefore ascertain and apply Colorado law with the objective that the result obtained in the
federal court should be the result that would be reached in a Colorado court. In doing so, [the
Tenth Circuit] must defer to the most recent decisions of the state's highest court, although stare
decisis requires that [the Tenth Circuit] be bound by [its] own interpretations of state law unless an
intervening decision of the state's highest court has resolved the issue.
Id. (citing Sylvia, 875 F.3d 1307) (internal quotation marks and alterations omitted).
3
Plaintiff does not allege willful and wanton negligence as to Gold’s Gym. See Am. Compl., ECF No. 7.
6
“[A]n exculpatory clause in a contract relating to recreational activities will be given
effect where the intention of the parties is expressed in sufficiently clear and unequivocal
language and does not fall within any of the categories where the public interest is directly
involved.” Jones, 623 P.2d at 375. “The determination of the sufficiency and validity of an
exculpatory agreement is a question of law for the court to determine.” Id. at 376 (citations
omitted).
In determining the enforceability of an exculpatory agreement a Court considers four
factors: (1) the existence of a duty to the public; (2) the nature of the service performed;
(3) whether the contract was fairly entered into; and (4) whether the intention of the parties was
expressed in clear and unambiguous language. Id.
In Jones, the Colorado Supreme Court enforced a waiver of liability against a plaintiff
who died in a plane crash after boarding the plane to go skydiving. Jones, 623 P.2d 370. The
Colorado Supreme Court held the plane crash was within the scope of the exculpatory
agreement, and affirmed the entry of summary judgment in favor of the defendants. Ultimately,
the Jones Court held “the agreement expressed the parties’ intention in clear and unambiguous
language; the contract used the word ‘negligence’ and specifically included injuries sustained
‘while upon the aircraft of the Corporation.’” Id. at 378.
A. The Jones Factors Favor Enforcement of the Gold’s Gym Membership

Agreement.
It is well settled that the first three Jones factors are satisfied with respect to recreational
services, like those provided by Gold’s Gym. Stone v. Life Time Fitness, Inc., 411 P.3d 225, 229
(Colo. App. 2016).
7
1. Gold’s Gym’s Recreational Services Do Not Involve a Duty to the Public.
“The first Jones factor requires us to examine whether there is an existence of a duty to
the public, or, described another way, whether the service provided involves a duty to the
public.” Brigance, 883 F.3d at 1250 (10th Cir. 2018) (quoting Jones, 623 P.2d at 376; Mincin v.
Vail Holdings, Inc., 308 F.3d 1105, 1109 (10th Cir. 2002)) (internal citations and quotations
omitted).
The Colorado Supreme Court distinguishes between businesses engaged in recreational
activities from businesses that are engaged in performing a public service of great importance or
out of practical necessity. Brigance, 883 F.3d at 1250 (citing Chadwick, 100 P.3d at 467). For
example, “businesses providing [ ] water, electricity, or sanitary services usually may not shield
themselves from claims of negligence, recreational service providers often can.” Espinoza, 809
F.3d at 1153. “[N]o public duty is implicated if a business provides recreational services.”
Stone, 411 P.3d at 229 (gym did not owe a special duty to the public) (citing Chadwick, 100 P.3d
at 467 (guided hunting services did not owe a special duty to the public); Jones, 623 P.2d at 376-
77 (skydiving service did not owe a special duty to the public); Hamill, 262 P.3d at
949 (recreational camping services did not owe a special duty to the public)); see also Tunkl v.
Regents of Univ. of Cal., 383 P.2d 441, 444 (Cal. 1963) (cited by Jones, 623 P.2d at 376-77 with
approval). Thus, like the gym in Stone, Gold’s Gym’s fitness club services are recreational in
nature and do not implicate a public duty. See id.
Because Gold’s Gym’s services do not fall within the category of agreements affecting
the public interest, the first Jones factor weighs in favor of enforcing the agreement. Jones, 623
P.2d at 376-77; Stone, 411 P.3d at 229.
8
2. Gold’s Gym’s Recreational Services are not Essential Services.
“Analysis of [the second Jones] factor is linked to and in many respects overlaps the
analysis conducted under the first Jones factor, as it calls for an examination of whether the
service provided is an ‘essential service’ or a ‘matter of practical necessity.’” Brigance, 883 F.3d
at 1252 (citing Espinoza, 809 F.3d at 1153; Stone, 411 P.3d at 229; Hamill v. Cheley Colo.
Camps, Inc., 262 P.3d 945, 949 (Colo. App. 2011)). “[C]ourts have consistently deemed
recreational services to be neither essential nor a matter of practical necessity.” Stone, 411 P.3d
at 229 (finding gym provided recreational services); see also Brigance, 883 F.3d at 1252 (relying
on Stone, 411 P.3d at 229). In Stone, the Colorado Court of Appeals rejected the plaintiff’s
attempt to distinguish fitness centers as an essential service on the basis “that people join fitness
centers ‘to promote their health, not for the thrill of a dangerous recreational activity.’” Stone,
411 P.3d at 229.
Because Gold’s Gym’s services are recreational in nature the second Jones factor weighs
in favor of enforcing the Membership Agreement. Stone, 411 P.3d at 229 (“the recreational
nature of the services [the gym] provides does not weigh against upholding or enforcing the
Agreement.”)
3. Plaintiff and Gold’s Gym Fairly Entered into the Membership

Agreement.
The third Jones factor requires an analysis of “the nature of the service involved, the
circumstances surrounding the formation of the contract, and whether the services provided are
available from a source other than the party with which the plaintiff contracted.” Brigance, 883
F.3d 1253 (citing Espinoza, 809 F.3d at 1156; Stone, 411 P.3d at 229; Hamill, 262 P.3d at 950).
“[A] contract is fairly entered into if one party is not at such an obvious disadvantage in
bargaining power that the effect of the contract is to place that party at the mercy of the other
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party’s negligence.” Stone, 411 P.3d at 229. “[U]nfair disparity is generally not implicated
when a person contracts with a business providing recreational services.” Stone, 411 P.3d at 229
(citing Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 784 (Colo. 1989); Hamill v. Cheley
Colo. Camps, Inc., 262 P.3d 945, 949-50 (Colo. App. 2011)).
This is because recreational activities are not essential services or practically

necessary, and therefore a person is not “at the mercy” of a business’s negligence
when entering an exculpatory agreement involving recreational activities. Hamill,
262 P.3d at 949-50. As we have previously explained, “Colorado courts have
repeatedly emphasized that . . . because recreational businesses do not provide
‘essential’ services of ‘practical necessity[,]’ individuals are generally free to
walk away if they do not wish to assume the risks described” in an exculpatory
agreement. Espinoza, 809 F.3d at 1157; see also Mincin, 308 F.3d at 1111 (noting
that a disparity of bargaining power may be created by the “practical necessity” of
a service, but that no such necessity existed because “mountain biking is not an
essential activity” and therefore the plaintiff “did not enter into the contract from
an inferior bargaining position”).
Brigance, 883 F.3d at 1253-54 (quotations, citations, and alterations in original).
Moreover, a contract may be fairly entered into when the services could have been
obtained elsewhere. Stone, 411 P.3d at 229 (citing Hamill, 262 P.3d at 950)).
Here, Gold’s Gym provides recreational services. Stone, 411 P.3d at 229. Plaintiff could
have taken her business elsewhere and joined a different fitness club or recreation center. In fact,
Plaintiff previously had memberships at two fitness clubs in Colorado Springs, Colorado and had
the ability to utilize fitness equipment at her home. MSMF ¶ 11-12. Thus, Plaintiff was not at
the mercy of Gold’s Gym when she entered into her Membership Agreement. Brigance, 883
F.3d at 1253-54; Hamill, 262 P.3d at 949-50; Stone, 411 P.3d at 229.
Because Gold’s Gym provides recreational services and Plaintiff had the option to join
other fitness clubs in the area, the third Jones factor weighs in favor of enforcing the
Membership Agreement’s waiver of liability. Brigance, 883 F.3d at 1253-54; Stone, 411 P.3d at
229; Hamill, 262 P.3d at 950; Jones, 623 P.2d at 375.
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4. The Parties’ Intent to Extinguish Liability on the part of Gold’s Gym was
Expressed Clearly, Unambiguously, and Unequivocally in the
Membership Agreement.
The fourth factor is that an exculpatory clause’s “language must be clear and
unambiguous and also ‘unequivocal’ to be enforceable.” Stone, 411 P.3d at 230 (citing
Chadwick, 100 P.3d at 467).
The inquiry conducted under [the fourth Jones] factor should be whether the
intent of the parties was to extinguish liability and whether this intent was clearly
and unambiguously expressed. The Colorado Supreme Court has explained that to
determine whether the intent of the parties is clearly and unambiguously
expressed, [a court] may examine the actual language of the agreement for legal
jargon, length and complication, and any likelihood of confusion or failure of a
party to recognize the full extent of the release provisions. [A court] may also
take into account a party’s subsequent acknowledgement that it understood the
provisions of the agreement. In addition, it is well-established that the term
negligence is not invariably required for an exculpatory agreement to be deemed
an unambiguous waiver or release of claims arising from negligent conduct.
Brigance, 883 F.3d at 1261 (internal quotations, citations, and alterations omitted).
Here, the Gold’s Gym waiver is not unduly long, nor complicated, unreadable, or
overburdened with legal jargon. Exhibit A at 4; Brigance, 883 F.3d at 1255-57. “The
organization of the [Membership Agreement] and the placement of [the] release language make
it unrealistic that these provisions could be missed or misunderstood by the reader.” Chadwick,
100 P.3d at 468 (enforcing exculpatory agreement). The Waiver of Liability section of the
Agreement has its own subheading. Exhibit A at 4. “Waiver of Liability” is written in bold font
with all capital letters and underlined. Exhibit A at 4. The waiver of liability section is a larger
font size than the remainder of the Membership Agreement. Exhibit A at 4. The waiver of
liability provision utilizes simple, clear, and unequivocal language comparable to other approved
exculpatory agreements. Comp. Exhibit A at 4 with Brigance, 883 F.3d at 1255-56; Simkin, 784
P.2d at 782; Jones, 623 P.2d at 372.
11
The intent of the waiver of liability is clear and unambiguous. Exhibit A at 4; Brigance,
883 F.3d at 1256. The first sentence of the Waiver of Liability specifically addresses the exact
risk surrounding Plaintiff’s injury and advises her of the risk. Exhibit A at 4 (“MEMBER
ACKNOWLEDGES THAT THE USE OF GOLD’S GYM’S FACILITIES [AND]
EQUIPMENT. . . INVOLVES AN INHERENT RISK OF PERSONAL INJURY TO
MEMBER…”) (emphasis in original). Likewise, before the alleged incident, Plaintiff was
generally aware that a person could be injured while working out at a gym facility and that
“[t]here is an inherent risk to exercise, in general.” MSMF ¶ 14; Exhibit C at 81:6-10.
The Waiver of Liability language clearly and unequivocally expresses its intent to waive
any claim or bar suit against Gold’s Gym from injuries arising from (1) the use of Gold’s Gym
exercise equipment and machines, (2) Gold’s Gym’s negligence, and/or (3) injuries resulting
from exercising at Gold’s Gym, among other things. MSMF ¶ 3; Brigance, 883 F.3d at 1256;
Espinoza, LLC, 809 F.3d at 1157-58; Mincin, 308 F.3d at 1112-13; Chadwick, 100 P.3d at 468-
69; B & B Livery, Inc. v. Riehl, 960 P.2d 134, 137-38 (Colo. 1998); Hamill, 262 P.3d at 950-51.
The exculpatory agreement specifically stated Plaintiff waived any and all claims or actions she
may have against Gold’s Gym including “INJURIES ARISING FROM USE OF ANY
EXERCISE EQUIPMENT [AND] MACHINES;” “INJURIES ARISING FROM GOLD’S
GYM’S NEGLIGENCE, WHETHER DIRECT OR INDIRECT;” and “INJURIES. . .
RESULTING FROM EXERCISING AT ANY GOLD’S GYM, INCLUDING. . . SPRAINS
[AND] BROKEN BONES.” MSMF ¶ 3; Exhibit A at 4 (emphasis in original); Jones, 623 P.2d
at 378 (enforcing exculpatory agreement where “the contract used the word ‘negligence’ and
specifically included injuries sustained ‘while upon the aircraft of the Corporation’”). Here,
Plaintiff’s alleged injuries fall squarely within the categories of contemplated by the Membership
12
Agreement’s waiver of liability language. Plaintiff sustained injuries when she used a broken
seated rowing machine at Gold’s Gym. MSMF ¶ 15. However, her Membership Agreement
waives a claim for injuries arising from the use of exercise equipment—the seated rowing
machine—at Gold’s Gym. MSMF ¶ 3; Exhibit A at 4. Plaintiff alleges a Gold’s Gym failed to
put an “Out of Order” sign on the broken seated cable rowing machine. MSMF ¶ 15; Am.
Compl., ECF No. 7, at ¶ 8. However, her Membership Agreement waives a claim for injuries
arising from Gold’s Gym’s negligence. MSMF ¶ 3; Exhibit A at 4. Finally, Plaintiff alleges
injuries to her low back from the use of the equipment. MSMF ¶ 15; Am. Compl., ECF No. 7, at
¶ 9. However, her Membership Agreement waives a claim for injuries arising from exercising at
Gold’s Gym. MSMF ¶ 3; Exhibit A at 4. The injuries Plaintiff alleges are the same injuries
contemplated by her Membership Agreement. MSMF ¶¶ 3, 15; Exhibit A at 4.
The Agreement advised Plaintiff: “Do not sign this Agreement until you have read both
sides.” MSMF at ¶ 7; Exhibit A at 4. Plaintiff read the Gold’s Gym Member Agreement,
specifically the waiver of liability section. MSMF at ¶ 2, 4. Plaintiff signed the Membership
Agreement just below sections entitled “WAIVER OF LIABILITY” and “ASSUMPTION OF
RISK AND INDEMNIFICATION.” MSMF at ¶ 10.
When executing the agreement, Plaintiff understood that gym equipment can malfunction
from time to time. MSMF at ¶ 8; Exhibit C at 154:21-24. With that understanding, Plaintiff
agreed to the Membership Agreement’s waiver of liability provision. MSMF at ¶¶ 1, 9; Exhibit
C at 155:4-8. Plaintiff signed the Membership Agreement. MSMF at ¶¶ 1, 9.
Plaintiff understood the effect of executing the waiver of liability at the time she executed
the Membership Agreement. MSMF at ¶ 8; Exhibit C at 154:5-11. Moreover, Plaintiff was
familiar with waivers of liability. MSMF at ¶ 13. Plaintiff understands that gym waivers in
13
general require a person to waive their rights if the person is injured on gym equipment. MSMF
at ¶ 13. Plaintiff read the waiver of liability and agreed to the waiver of liability contained in the
Membership Agreement by executing the Membership Agreement. MSMF at ¶ 9; Exhibit C at
155:4-8; Brigance, 883 F.3d at 1261; Chadwick, 100 P.3d at 469 (enforcing waiver when
plaintiff “admitted in his deposition that he read the contract and understood that he was
executing a release of liability when he signed it.”); Riehl, 960 P.2d at 138; Simkin, 784 P.2d at
785 (enforcing waiver when plaintiff testified she understood the waiver).
Therefore, because the parties’ intention to relieve Gold’s Gym of liability pursuant to the
Membership Agreement’s exculpatory provision is expressed in clear and unambiguous
language, the fourth Jones factor weighs in favor of enforcement of the provision.
Accordingly, because Gold’s Gym provides recreational, nonessential services which did
not involve any duty to the public, and because Plaintiff fairly entered into her Membership
Agreement with Gold’s Gym which clearly, unambiguously, and unequivocally released any
claims for personal injury asserted by Plaintiff, the Jones factors weigh in favor of enforcement
of the exculpatory provisions. Thus, as a matter of law, the Gold’s Gym exculpatory agreement
is valid and enforceable, and Plaintiff’s claim fails.
V. Conclusion
Plaintiff’s First Amended Complaint should be dismissed in its entirety. Plaintiff agreed
to Gold’s Gym’s Membership Agreement. The Membership Agreement contained a valid and
enforceable exculpatory agreement insulating Gold’s Gym from Plaintiff’s claim of personal
injuries sustained while using Gold’s Gym equipment. Thus, Plaintiff’s claim against Gold’s
Gym fails as a matter of law.
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Wherefore, Defendant Gold’s Gym Rockies, LLC respectfully requests this Court find
plaintiff assumed the risk of her actions in utilizing the seated cable row machine and waived any
claim against Gold’s Gym Rockies, LLC, and dismiss plaintiff’s First Amended Complaint with
prejudice.
Respectfully submitted this 23rd day of August, 2018.
/s/ Ashley R. Larson

Ashley R. Larson
Debra K. Sutton
Sutton | Booker | P.C.
4949 S. Syracuse, Suite 520
Denver, Colorado 80237
Telephone: 303-730-6204
Facsimile: 303-730-6208
E-Mail: alarson@suttonbooker.com
dsutton@suttonbooker.com
Attorneys for Defendant, Gold’s Gym Rockies,
LLC, a Delaware Limited Liability Company
CERTIFICATE OF SERVICE
I hereby certify that on this 23rd day of August, 2018, I electronically filed a true and
correct copy of the above and foregoing Defendant's Motion for Summary Judgment with the
Clerk of Court using the CM/ECF system which will send notification of such filing to the
following:
J.C. Martin III
723 South Cascade Ave.
Colorado Springs CO 80903
/s/ Melissa J. Larsen
A duly signed original is on file at
Sutton | Booker | P.C.
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Case 1:18-cv-00047-WJM-KMT Document 28-1 Filed 08/23/18 USDC Colorado Page 1 of 4

Civil Action No.: 1:18-CV-00047 - WJM-KMT
Plaintiff,
v.
Defendant.
AFFIDAVIT OF CRYSTEN MOSHER
I, Crysten Mosher, being of lawful age and first duly sworn upon this oath, deposes and
says the following:
1. I am over the age of 18 and have personal knowledge of the facts stated herein.
2. I am familiar with the operations and documents of the Gold’s Gym Rustic Hills
and I am a custodian of records for Gold’s Gym Rockies, LLC, including records relating to its
members.
3. Gold’s Gym Rustic Hills is a fitness club, providing its members access to gym
facilities, equipment, services, and programs.
4. Plaintiff AnneMichelle Johnson executed a Gold’s Gym Membership Agreement
on May 25, 2015. A true and accurate copy of the Membership Agreement executed by Plaintiff
AnneMichelle Johnson is attached hereto as Exhibit 1.
5. I certify that the Membership Agreement executed by Plaintiff AnneMichelle
Johnson is kept in the course of Gold’s Gym’s regularly conducted business; was made and/or
received by Gold’s Gym as a result practice during its regularly conducted business; and was
Exhibit A at 1
Exhibit A at 2
Case 1:18-cv-00047-WJM-KMT Document 28-1 Filed COLORADO
08/23/18 USDC Colorado Page 3 of 4
GOLD’S GYM Store No. GGI-RUSTIC HILLS, CO
1409 N ACADEMY , COLORADO SPRINGS, CO
719-352-2036
Membership Agreement Gold’s Gym Rockies, LLC (“Gold’s Gym”)
This Agreement covers the purchase of a membership at the Gold’s Gym location above.
Date: 5/25/2015 Member #: G1114623213
Member Name: AnneMichelle Johnson DL or ID #: 15-070-0700 State: CO
Billing Address: 118 E Jefferson St. Apt. #: Birth date: 4/9/1973 Sex: F
City: Colorado Springs Source: Other
State: CO Zip code: 80907 Emergency Contact Name: Luke Johnson
Home Phone: 3014613327 Emergency Contact No.: 719-569-1738
Work Phone: Employer:
E-mail: astretchøhotmail.com Group:

Yes Gold’s Gym may use my email address to communicate with me about upcoming events, special Gold’s Gym member offers, and other information.
Gold’s Gym and its marketing partners may use my email address to communicate with me about upcoming events, special Gold’s Gym member offers, and
No other information.
Membership Plan: Stnd - PG MTM - CO Membership Type/Gym Access: EFT- PG- Gold Select Gyms
Bi-Weekly Dues Initial Bi -Weekly
Membership Starts: 5/25/2015 Start: 6/5/2015 Dues: $23.99 Initial Term Ends:
(including tax)
Member Name Sold On Date of Birth Barcode ID

AnneMichelle Johnson 5/25/2015 4/9/1973 G1114623213
Recurring
Service List Dues Terms
Kids Club Dues 3 Child $10.00 $7.14
Kids Club Final Dues 3 Child $0.00 $20.00
Retail Enrollment Fee $0.00 $0.00
Retail Final Dues $0.00 $27.98
Retail General Facility Dues $13.99 $9.99
Total Recurring Dues $23.99
Total Investment $65.11
Notice of dues renewal: If you are being billed bi-weekly, this Membership Agreement (the “Agreement”) will renew automatically on a four week basis at the end of the initial term referred to above,
with bi-weekly dues to be paid in the amount equal to the dues in effect at that date. If you are on a paid-in-full membership, your renewal date to continue your membership is the date the initial
term ends. Gold’s Gym reserves the right to change the amount of dues (bi-weekly and paid-in-full) and charges payable hereunder after the end of the initial term referred to above at its discretion
NOTICE TO PURCHASER:
1) DO NOT SIGN THIS CONTRACT UNTIL YOU READ IT OR IF IT CONTAINS BLANK SPACES.
(2) IF YOU DECIDE YOU DO NOT WISH TO REMAIN A MEMBER OF THIS HEALTH SPA, YOU MAY RESCIND
THIS CONTRACT BY TELEGRAM, HAND DELIVERY, OR MAILING TO THE HEALTH SPA BY MIDNIGHT OF THE
THIRD BUSINESS DAY AFTER YOUR RECEIPT OF A COPY OF THIS CONTRACT A NOTICE STATING YOUR
DESIRE TO RESCIND THIS CONTRACT. NOTICE OF RESCISSION IS CONSIDERED GIVEN: BY MAIL WHEN
POSTMARKED, BY TELEGRAM WHEN FILED FOR TELEGRAPHIC TRANSMISSION, BY HAND WHEN
DELIVERED TO THE SELLERS PLACE OF BUSINESS. THE WRITTEN NOTICE MUST BE MAILED BY CERTIFIED
MAIL OR SENT BY TELEGRAM TO THE FOLLOWING ADDRESS: GOLD’S GYM, ATTN: CUSTOMER CARE, 4001
MAPLE AVENUE, STE. 200, DALLAS, TX 75219. OR DELIVERED BY HAND TO THE HEALTH CLUB AT THE
ABOVE LISTED ADDRESS. YOU WILL RECEIVE A PARTIAL REFUND OF YOUR UNUSED MEMBERSHIP FEE
WITHIN FIFTEEN DAYS OF OUR RECEIPT OF YOUR NOTICE OF RESCISSION. YOU MAY ALSO CANCEL BY
VISITING WWW.GOLDSGYMMEMBER.COM.
(3) IF THE HEALTH SPA GOES OUT OF BUSINESS AND DOES NOT PROVIDE FACILITIES WITHIN 5 MILES OF
THE FACILITY IN WHICH YOU ARE ENROLLED, OR IF THE HEALTH SPA MOVES MORE THAN 5 MILES FROM
THE LOCATION IN WHICH YOU ARE ENROLLED, OR IF YOUR MEMBERSHIP IS TRANSFERRED TO ANOTHER
GOLD’S OR COMPETING CLUB MORE THAN FIVE MILES FROM THE LOCATION IN WHICH YOU ARE
ENROLLED, OR IF THE HEALTH CLUB IS SOLD AND THERE IS A SUBSTANTIAL ALTERATION OF THE
QUALITY OF HEALTH CLUB SERVICES, FACILITIES, OR NATURE OF YOUR BENEFITS SO AS THEY NO
LONGER CONFORM WITH THE PROVISIONS OF YOUR MEMBERSHIP AGREEMENT, YOU MAY CANCEL THIS
CONTRACT BY MAILING BY CERTIFIED MAIL A WRITTEN NOTICE STATING YOUR DESIRE TO CANCEL THIS
CONTRACT, ACCOMPANIED BY PROOF OF PAYMENT ON THE CONTRACT TO THE HEALTH SPA AT THE
FOLLOWING ADDRESS: GOLD’S GYM, ATTN: CUSTOMER CARE, 4001 MAPLE AVENUE, STE. 200, DALLAS, TX
75219.
(4) IF YOU DIE OR BECOME TOTALLY PHYSICALLY DISABLED AS DETERMINED BY A LICENSED PHYSICIAN
OR ADVANCED PRACTICE NURSE FOR THE DURATION OF THE MEMBERSHIP CONTRACT, AFTER THE DATE
THIS CONTRACT TAKES EFFECT, YOU OR YOUR ESTATE MAY CANCEL THIS CONTRACT BY MAILING A
NOTICE TO THE HEALTH SPA STATING YOUR DESIRE TO CANCEL THIS CONTRACT. THE HEALTH SPA MAY
REQUIRE PROOF OF DISABILITY OR DEATH. THE WRITTEN NOTICE MUST BE MAILED BY CERTIFIED MAIL
TO THE FOLLOWING ADDRESS: GOLD’S GYM, ATTN: CUSTOMER CARE, 4001 MAPLE AVENUE, STE. 200,
DALLAS, TX 75219.
ANY HOLDER OF THIS AGREEMENT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR
COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED WITH THE PROCEEDS
HEREOF. RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR
HEREUNDER.
Guaranty: Any guarantor or account holder who signs below (“Guarantor”) guarantees the full payment of all amounts owed to Gold’s Gym under this Agreement. This is a guaranty of payment
and not collection and will be effective without notice of acceptance by the beneficiary hereof. This is a continuing guaranty. Gold’s Gym may extend the time allowed for payment, modify this
Agreement and release other parties to this Agreement without affecting the obligation of Guarantor.
Guarantor’s Name: Guarantor’s Signature X No Signature obtained DATE: 5/25/2015
Guarantor’s Address:
NAME OF ACCOUNT HOLDER: AnneMichelle Johnson (Proof of ID Required)
Form of Payment: AMEX Bank Account Type: (NOTE: For Checking Account Authorization, Attach A Voided Check)
Bank Name: Routing #: Acct. #:
Acct. #: ***********1016 Exp. Date: 10/1/2017
- GOLD’S GYM QUICK PASS PROGRAM CREDIT CARD “ON-FILE” AUTHORIZATION: Gold’s Gym is authorized to maintain credit card payment information in its confidential files as a
payment method for products and services available at Gold’s Gym health clubs. I agree to pay and specifically authorize Gold’s Gym to charge my credit card described above for all transactions
in which I or any member that I have authorized to do so use my credit card as the payment method for products and services purchased at a Gold’s Gym health club until such time as my written
request to revoke or terminate such authorization has been processed by Gold’s Gym. Gold’s Gym may terminate or restrict use of my credit card. My authorization and credit card information may
only be changed in writing by me as the cardholder.
Exhibit A at 3 Gold's Gym_00001
I wish to make my payments to Gold’s Gym through its Pre-Authorized Payment Program. I hereby authorize my bank or credit card company to make my payment for bi-weekly dues, any unpaid
past dues, and any other fees, taxes or charges from the account I used to pay for the Total Due Today or from the account shown above. I agree to pay a fee of $25.00, and when applicable, a
late charge as well as any other charges allowed by law for any EFT or credit card charge not honored by my bank or credit card company. I understand and agree that it is my obligation to review
my bank and credit card statements monthly to verify appropriate amounts have been drafted. In the event that my account has been incorrectly drafted, I agree that I will notify Gold’s Gym
immediately. I understand that after ninety (90) days, it will be deemed that I have reviewed my bank or credit statement and have waived my right to receive a credit card, bank account, or other
account adjustment, including late fees or other charges. I understand that Gold’s Gym may, upon written notice, change the date that my bi-weekly dues are debited from my account. I agree that
if I change the payment method, I will provide new account information (either a voided check or credit card voucher) at least thirty days prior to the next billing date.
SIGNATURE OR ACCOUNT HOLDER x Date : 5/25/2015
GENERAL: Member has joined the Gold’s Gym location designated at the top of this Agreement. Gold’s Gym may allow Member to use other Gold’s Gym facilities at its sole discretion. Gold’s Gym
reserves the right to add or eliminate locations and facilities available to Member. The hours of operation will be set by Gold’s Gym and may be changed at any time in its sole discretion. Gold’s
Gym is not required to continue any particular programs, facilities, services or equipment as part of its contractual obligations and may discontinue, change or modify the same in its sole and
absolute discretion. Gold’s Gym expressly reserves the right to add, eliminate, or alter any program, equipment, furniture or fixture when deemed necessary or desirable in its sole discretion. The
information on this Agreement is the property of Gold’s Gym and its subsidiaries. Membership does not confer on Member any ownership interest in Gold’s Gym or any of its property.
RULES AND REGULATIONS: Member acknowledges the existence of and the need for rules and regulations governing use of Gold’s Gym’s equipment and facilities and participation in programs
and services (the “Rules and Regulations”). Member acknowledges Member will adhere to the Rules and Regulations and agrees to comply with the Rules and Regulations as presently in effect or
as they may hereafter be modified, amended or supplemented. Gold’s Gym reserves the right to modify, amend or supplement the Rules and Regulations from time to time in its sole discretion.
Gold’s Gym may cancel Member’s membership at any time for breach of the Rules and Regulations or generally undesirable behavior, as determined by Gold’s Gym in its sole discretion, and
Member will not be entitled to a refund of any portion of initiation fees or dues paid to the date of cancellation.
POSTING OF PETITIONS, NOTICES, ETC.: The circulating or posting of a petition, notice, circular or statement of any kind is prohibited in or near Gold’s Gym’s facilities, unless such a document
is first submitted and approved by the management of Gold’s Gym.
LIABILITY FOR PERSONAL PROPERTY: Gold’s Gym shall not be liable to Member or any of Member’s guests or invitees for any personal property that is damaged, lost or stolen while on or
around Gold’s Gym’s premises including, but not limited to, a vehicle or its contents or any property left in a locker. Member shall be liable to Gold’s Gym for any damage to Gold’s Gym’s facilities
and any equipment, furniture or fixture located thereon caused by Member or any of Member’s guests or invitees.
PAYMENT DEFAULT: If Member fails to pay any amount when due under this Agreement, Gold’s Gym shall be entitled, at any time in its sole discretion, to suspend or cancel Member’s
membership and to require Member to immediately pay all past due balances. Suspension or cancellation shall not relieve Member from the obligation to pay any unpaid balances. Any payments
owing from Member to Gold’s Gym that are not received when due shall bear interest at the highest rate permitted by law. If Member fails to pay any amount to Gold’s Gym when due, Member
shall pay all costs and expenses of collection incurred by Gold’s Gym, including reasonable attorney’s fees and expenses.
HEALTH REPRESENTATIONS AND AGREEMENTS: Member represents and warrants to Gold’s Gym that Member is in good physical condition and has no medical reason or impairment that
could prevent Member from his or her intended use of Gold’s Gym’s facilities. Member acknowledges that Gold’s Gym has not given Member any medical advice before Member joined Gold’s Gym
and cannot give Member any such advice after Member joins Gold’s Gym, whether related to Member’s physical condition and ability to use the facilities and services of Gold’s Gym or otherwise.
Member acknowledges and agrees that Member will discuss any health or medical concerns with Member’s physician or other health professional prior to and while using Gold’s Gym’s facilities.
MISCELLANEOUS: (i) This Agreement shall be governed by the internal laws of the State of Colorado without regard to principles of conflicts of laws, (ii) this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs, successors and permitted assigns, (iii) this Agreement and the rights and obligations hereunder shall not be assignable or
transferable by Member without the prior written consent of Gold’s Gym. Consent may be withheld in Gold’s Gym’s absolute discretion, and (iv) if any term or provision of this Agreement is declared
to be illegal, invalid or unenforceable for any reason whatsoever by a court of competent jurisdiction, the illegality, invalidity or unenforceability shall not affect the validity of the remainder of this
Agreement, and to the extent permitted by applicable laws, any such term or provision shall be restricted in applicability or reformed to the minimum extent for such to be enforceable.
ARBITRATION: Any and all claims you may have against Gold’s Gym must be submitted on an individual basis to binding arbitration. The arbitration shall be administered by the American
Arbitration Association or JAMS in accordance with their applicable rules, or any other established ADR provider mutually agreed upon by the parties. Any judgment on the award rendered by the
arbitrator may be entered in any court having jurisdiction thereof. No claim can be submitted as a class, consolidated, collective or representative action.
CANCELLATION: Unless otherwise specified in this Agreement, and effective no earlier than the expiration of the initial term, Member may cancel Member’s obligation to make bi-weekly
payments by providing at least 30 days written notice to Gold’s Gym. At the expiration of the 30 days notice period, no further billings will occur (the “Billing Termination”). The final dues paid at
enrollment will extend the membership by an additional 28 days, allowing the cancelling Member to use Gold’s Gym for an additional 28 days after the Billing Termination. Accordingly, the
Agreement and all rights to use Gold’s Gym will terminate 28 days after the billing termination. Member may either complete and sign a cancellation questionnaire at Gold’s Gym or send written
notice to: ATTN: Customer Care, Gold’s Gym Rockies, LLC. 4001 Maple Avenue, Suite 200, Dallas TX. 75219. Such notice shall be accompanied by a copy of any membership cards or other
documents or evidence of membership previously delivered to Member. Member’s account must be current and in good standing before Gold’s Gym will process any such request to cancel.
Certified mail, return receipt requested, is recommended.
NO OTHER RIGHT TO CANCEL, INCLUDING FOR NON-USE OF FACILITIES: Unless otherwise specified in the Notice of Consumer Rights, this Agreement is not cancelable by Member except
as expressly provided above including, without limitation, by reason of Member’s failure to utilize the facilities of Gold’s Gym.
AUTHORITY TO MODIFY CONTRACT: Employees are not authorized to make any changes to this Agreement or to make any independent agreement with any member. Member likewise cannot
make alterations or changes to this Membership Agreement.
WAIVER OF LIABILITY: MEMBER ACKNOWLEDGES THAT THE USE OF GOLD’S GYM’S FACILITIES, EQUIPMENT, MERCHANDISE, SERVICES AND
PROGRAMS (INCLUDING PERSONAL TRAINING) INVOLVES AN INHERENT RISK OF PERSONAL INJURY TO MEMBER AND MEMBER’S GUESTS AND
INVITEES. MEMBER VOLUNTARILY AGREES TO ASSUME ALL RISKS OF PERSONAL INJURY TO MEMBER, MEMBER’S SPOUSE, CHILDREN,
UNBORN CHILDREN, OTHER FAMILY MEMBERS, GUESTS OR INVITEES AND WAIVES ANY AND ALL CLAIMS OR ACTIONS THAT MEMBER MAY
HAVE AGAINST GOLD’S GYM, ANY OF ITS PARENTS, SUBSIDIARIES OR OTHER AFFILIATES AND ANY OF THEIR RESPECTIVE OFFICERS,
DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS AND ASSIGNS FOR ANY SUCH PERSONAL INJURY (AND NO SUCH PERSON OR ENTITY SHALL
BE LIABLE TO MEMBER, MEMBER’S SPOUSE, CHILDREN, UNBORN CHILDREN, OTHER FAMILY MEMBERS, GUESTS OR INVITEES FOR ANY SUCH
PERSONAL INJURY), INCLUDING, WITHOUT LIMITATION: (I) INJURIES ARISING FROM USE OF ANY EXERCISE EQUIPMENT, MACHINES AND
TANNING BOOTHS OR PERSONAL TRAINING SERVICES; (II) INJURIES ARISING FROM PARTICIPATION IN SUPERVISED OR UNSUPERVISED
ACTIVITIES AND PROGRAMS IN EXERCISE ROOMS, RUNNING TRACKS, SWIMMING POOLS, HOT TUBS, COURTS OR OTHER AREAS OF ANY
GOLD’S GYM, (III) INJURIES ARISING FROM GOLD’S GYM’S NEGLIGENCE, WHETHER DIRECT OR INDIRECT; (IV) INJURIES, DISEASE, INFECTION
OR MEDICAL DISORDERS RESULTING FROM EXERCISING AT ANY GOLD’S GYM, INCLUDING HEART ATTACKS, STROKES, HEAT STRESS,
SPRAINS, BROKEN BONES AND TORN OR DAMAGED MUSCLES, LIGAMENTS OR TENDONS; AND (V) ACCIDENTAL INJURIES WITHIN ANY GOLD’S
GYM FACILITIES, INCLUDING LOCKER ROOMS, STEAM ROOM, WHIRLPOOLS, HOT TUBS, SPAS, SAUNAS, SHOWERS AND DRESSING ROOMS.
MEMBER ALSO WAIVES ALL CLAIMS AGAINST GOLD’S GYM, ANY OF ITS PARENTS, SUBSIDIARIES OR OTHER AFFILIATES AND ANY OF THEIR
RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS AND ASSIGNS FOR ANY CLAIMS MEMBER MAY HAVE UNDER ANY OF
THE STATE’S CONSUMER PROTECTION STATUTES. THE PROVISIONS OF THIS PARAGRAPH SHALL SURVIVE THE TERMINATION OF THIS
AGREEMENT AND MEMBER’S MEMBERSHIP.
ASSUMPTION OF RISK AND INDEMNIFICATION: Member acknowledges that (i) Gold’s Gym does not manufacture any of the fitness or other equipment at its facilities and (ii) Gold’s Gym does
not manufacture any vitamins, food products, sports drinks, nutritional supplements or other products sold at its facilities; accordingly, neither Gold’s Gym nor any of its parents, subsidiaries or
other affiliates nor any of their respective officers, directors, employees, agents, successors or assigns shall be held liable for any such defective equipment or products. Member shall indemnify
Gold’s Gym, its parents, subsidiaries and other affiliates and each of their respective officers, directors, employees, agents, successors and assigns (an “Indemnified Party”) and save and hold
each of them harmless against and pay on behalf of or reimburse any such indemnified party as and when incurred for any losses which such indemnified party may suffer, sustain or become
subject to, as a result of, in connection with, relating or incidental to or by virtue of any claim that is the subject of the waiver set forth above. The provisions of this paragraph shall survive
Do not sign this Agreement until you have read both sides. The terms on each side of this form are a part of this Agreement. Member is entitled to a completely filled-in copy of this
Agreement. By signing this Agreement, Member acknowledges that (A) This Agreement will become legally binding upon its acceptance by Gold’s Gym, and (B) Gold’s Gym makes no
representations or warranties to Member, either expressed or implied, except to the extent expressly set forth in this Agreement. This Agreement constitutes the entire agreement
between the Member and Gold’s Gym with respect to the subject matter hereof and supersedes any and all prior agreements, written or oral, with respect to such subject matter.
DAT DAT
X E: 5/25/2015 Marshall James E: 5/25/2015
MEMBER SIGNATURE EMPLOYEE NAME
DAT
Marshall James E: 5/25/2015
EMPLOYEE NAME
Legal Guardian: Any Member who is under the age of 18 must have a parent or legal guardian (“Legal Guardian”) co-sign this Agreement. Legal Guardian shall be jointly and
severally liable for any and all obligations of such Member hereunder and shall be bound by all terms and conditions of this Agreement.
Legal Guardian’s Name: Legal Guardian’s Signature X No Signature obtained DATE: 5/25/2015
Legal Guardian’s Address:
Exhibit A at 4 Gold's Gym_00002

Exhibit B at 1
Exhibit B at 2
Exhibit B at 3
Exhibit B at 4
Exhibit B at 5
Exhibit B at 6
Transcript of the Testimony of
ANNEMICHELLE JOHNSON
June 20, 2018
AnneMichelle Johnson
vs.
Gold's Gym Rockies, LLC.
Sundae A. Stoa, FCRR, RPR

Hansen and Company, Inc.
Registered Professional Reporters
1600 Broadway, Ste. 470
Phone (303) 691-0202 * Fax (303) 691-2444
Exhibit C
AnneMichelle Johnson ANNEMICHELLE JOHNSON

Gold's Gym Rockies, LLC. June 20, 2018
Page 1
Case No. 1:18-CV-00047-WJM-KMT

______________________________________________________
DEPOSITION OF: ANNEMICHELLE JOHNSON - June 20, 2018

______________________________________________________
Plaintiff,
v.
Defendant.
______________________________________________________
PURSUANT TO NOTICE AND AGREEMENT, the

DEPOSITION OF ANNEMICHELLE JOHNSON was taken on behalf
of the Plaintiff at 723 South Cascade Avenue, Colorado
Springs, Colorado, 80903, on June 20, 2018, at 1:03
p.m., before Sundae A. Stoa, Registered Professional
Reporter, Federal Certified Realtime Reporter, and
Notary Public within Colorado.
Hansen & Company, Inc. Registered Professional Reporters

(303) 691-0202 * (303) 691-2444
Exhibit C

Page 2
1 A P P E A R A N C E S
2
3 For the Plaintiff: J.C. MARTIN, III, ESQ.
LAW OFFICE OF J.C. MARTIN
4 723 South Cascade Avenue
Colorado Springs, CO 80903
5 (719) 602-5239
pit@pit-law.com
6
7
For the Defendant: ASHLEY R. LARSON, ESQ.
8 SUTTON|BOOKER|P.C.
4949 South Syracuse
9 Suite 520
Denver, CO 80237
10 (303) 730-6204
alarson@suttonbooker.com
11
Also Present: None
12
13
14
15
16
17
18
19
20
21
22
23
24
25

(303) 691-0202 * (303) 691-2444
Exhibit C

Page 3
1 I N D E X
2 PAGE
EXAMINATION OF ANNEMICHELLE JOHNSON:
3 June 20, 2018
4 By Ms. Larson: 4
By Mr. Martin: -
5
INITIAL
6 DEPOSITION EXHIBITS REFERENCE
Exhibit 1 Typed Statement of Corky 23
7 Gainsford
8 Exhibit 2 "Gold's Gym Customer Follow-up" 119
Email Exchange -
9 Crystal Sisler and AnneMichelle
Johnson
10
EXHIBIT 3 Email exchange - Kirsten Baynard 132
11 and AnneMichelle Johnson
12 Exhibit 4 Emergicare Clinic (Records) 144
01/13/2016 -
13 AnneMichelle Johnson
14 Exhibit 5 Gold's Gym Membership Agreement 152
15
(Attached to orginal and copy transcripts.)
16
17
PREVIOUSLY MARKED DEPOSITION
18 EXHIBITS:
19 (None)
20 INFORMATION REQUESTED:
21 Page 141 Line 3
22 QUESTIONS INSTRUCTED NOT TO ANSWER:
23 (None)
24
25

(303) 691-0202 * (303) 691-2444
Exhibit C

Page 67
1 And I also had additional -- we had a very
2 large property, so I was the lawnmower. I had to do
3 all of that stuff -- a much larger house, so it took
4 more daily physical labor.
5 Q. Did you have an in-home gym?
6 A. No.
7 Q. Do you have an in-home gym now?
8 A. No.
9 Q. Who were you doing -- at that point in time,
10 when you were in Maryland, you said you had a few
11 personal training sessions.
12 Who was that with?
13 A. Bridgett Farrell at the YMCA.
14 I finally found her at the end of when we
15 were there.
16 Q. Have you been a member of other YMCAs?
17 A. I was a member at the downtown YMCA here
18 briefly.
19 Q. When was that?
20 A. 2017. It was for the children. I didn't do
21 any training there.
22 Q. And it's downtown?
23 A. Correct.
24 Q. Is that what it's actually called, Colorado
25 Springs downtown, or do you know where it's located?

(303) 691-0202 * (303) 691-2444
Exhibit C

Page 68
1 A. It's located off of Nevada.
2 We had a family membership, but it was for
3 the kids to do their programs.
4 Q. And you don't have that membership anymore?
5 A. No.
6 Q. And you never worked out there?
7 A. No.
8 Q. Or, did personal training there?
9 A. No.
10 Q. Okay. I thought I saw -- going back to this
11 in-home gym thing, I thought I saw in one of your
12 Facebook posts that you had a rack of weights that you
13 were looking for, or something.
14 Do you have workout equipment at home?
15 A. I have some workout equipment. I have some
16 free weights.
17 Q. Okay. So do you work out at home sometimes?
18 A. Occasionally, I will do some free weights --
19 free weight exercises, but there is no dedicated space
20 for it.
21 Q. Like what type of free weights do you have at
22 your house?
23 A. Dumbbells.
24 Q. And what sizes are those?
25 A. The heaviest is ten pounds.

(303) 691-0202 * (303) 691-2444
Exhibit C

Page 73
1 So laundry, dusting, vacuuming, windows,
2 other bathrooms, our own bathroom, yes, that's all on
3 me.
4 Q. Now, we talked about you are not currently in
5 personal training because -- was it with Jeremy? Was
6 that his name?
7 A. Sterling.
8 Q. Sterling. And that finished about February
9 of this year, correct?
10 A. Correct.
11 Q. Do you have any plans to go back to personal
12 training?
13 A. I would like to, but I'm playing it by ear.
14 Q. Okay. And are you currently a member at
15 Gold's?
16 A. Correct.
17 Q. And are you going to Briargate more now?
18 A. No. I tend to go mainly to Rustic because
19 it's closer. They have the spin bikes that fit me
20 better, and I like the pool better.
21 But I will go to the pool at Briargate if the
22 pool at Rustic is down.
23 Q. Okay. And then, when you first moved out to
24 Colorado Springs, you became a member of Life Time,
25 right?

(303) 691-0202 * (303) 691-2444
Exhibit C

Page 74
1 A. Correct.
2 Q. And that was in February of 2015?
3 A. Correct.
4 Q. Why did you first sign up with Life Time?
5 A. There had been a Life Time that moved into
6 Henderson, and the majority of the people I knew from
7 ClubSport went to the Life Time -- rave reviews.
8 We went and checked it out, we liked it. But
9 after being a member for a short period of time, I
10 realized it was not the right environment for me.
11 Q. Why?
12 A. It's too big. And people are too close to
13 you.
14 Q. And you're talking about the Life Time in
15 Colorado Springs?
16 A. Correct, the one up at Briargate.
17 Q. Okay. So you checked out the Life Time in
18 Nevada?
19 A. No, I checked out the Life Time in Briargate.
20 Q. Okay.
21 A. But I had friends in Nevada who loved the
22 Life Time there, so I went off of their recommendations
23 to go check the one out here.
24 Q. Here?
25 A. Correct.

(303) 691-0202 * (303) 691-2444
Exhibit C

Page 76
1 anymore.
2 Q. Is he a member at Gold's Gym?
3 A. He was. He is no longer.
4 Q. When did he end his membership?
5 A. Beginning of 2018, I believe.
6 Q. Why?
7 A. He wasn't using it.
8 Q. Does he work out at all anymore?
9 A. Not officially.
10 Q. Do you ever work out together at
11 Gold's -- did you ever work out together at Gold's?
12 A. No.
13 Q. Why not?
14 A. Schedules.
15 Q. Yeah.
16 Do you recall signing a waiver of liability
17 form when you signed up with Life Time Fitness?
18 A. I do.
19 Q. And what do you understand about that waiver
20 of liability?
21 A. I remember signing it, I don't remember what
22 their particular waiver said. It was too long ago.
23 Q. Did anyone go over that waiver of liability
24 with you at Life Time?
25 A. I do not remember.

(303) 691-0202 * (303) 691-2444
Exhibit C
Case 1:18-cv-00047-WJM-KMT Document 28-3 Filed 08/23/18 USDC Colorado Page 10 of
22
Page 77
1 Q. But you recall signing it?
2 A. We had to sign it in order to join.
3 Q. Did you understand what you were waiving at
4 that point in time with the Life Time membership
5 agreement?
6 A. With the Life Time?
7 I don't remember the exact waiver, but most
8 of these waivers are all similar in that you're waiving
9 rights if you were to get injured on equipment that
10 they own, that they provide, that they maintain, that's
11 in working order.
12 Q. What other waivers are you talking about?
13 You said most of these waivers are the same
14 thing. What waivers are you referring to?
15 A. Gym waivers in general.
16 Q. Okay. Do you also have to sign waivers for,
17 like, your kids' karate class?
18 A. I did not sign them up, so I don't know.
19 Q. What about swim class or dance or piano,
20 anything like that?
21 A. Piano? No. Dance? No.
22 And I do not believe there was one with swim
23 either.
24 Q. Did you say they recently went to a camp?
25 A. Yes. D-11 has a summer camp.

(303) 691-0202 * (303) 691-2444
Exhibit C
22
Page 81
1 another gym?
2 A. No, I have not.
3 Q. Have you ever seen another member get injured
4 on equipment at any gym?
5 A. No, I have not.
6 Q. Before this incident happened, were you
7 generally aware that you could get injured while
8 working out at a gym?
9 A. Yes. There is an inherent risk to exercise,
10 in general.
11 Q. And that same kind of risk when you're using
12 gym equipment?
13 A. Correct. As long as it's in properly working
14 and maintained order --
15 Q. Okay.
16 A. -- that shouldn't be.
17 Q. Have you ever maintained gym equipment
18 before?
19 A. I have not.
20 Q. Have you ever performed maintenance or
21 service on any kind of gym equipment?
22 A. I have not.
23 Q. What kind of risks are associated with
24 working out?
25 A. There is the risk of broken bones, of muscle

(303) 691-0202 * (303) 691-2444
Exhibit C
22
Page 82
1 strains, of loss of consciousness, stroke, death.
2 There is a whole host of physical risks
3 associated.
4 Q. And before Gold's, the Gold's incident, you
5 had never seen any of those kind of risks acted out in
6 person at the Gold's Gym, correct?
7 That was an awful question. Let me just go
8 back.
9 Attorneys?
10 Before the Gold's Gym incident, you were
11 aware of those risks right?
12 A. Correct.
13 Q. Had you ever seen anyone suffer a risk like
14 that at Gold's Gym?
15 A. No, not at Gold's.
16 Q. Okay. Anywhere else?
17 A. I did not personally witness, but there was
18 an elderly gentlemen who died at -- in the hot tub of a
19 gym that I was at.
20 Q. When was that?
21 A. 2013, 2014.
22 Q. And you just, like, heard about that through
23 the grapevine or something?
24 A. Correct.
25 Q. What happened?

(303) 691-0202 * (303) 691-2444
Exhibit C
22
Page 152
1 What is Exhibit 5?
2 A. It is the Gold's Gym Membership Agreement.
3 Q. Okay. And this is the membership agreement
4 that you signed, correct?
5 A. Correct.
6 Q. On May 25th, 2015?
7 A. Correct.
8 Q. Now, when you first saw this membership
9 agreement, did you read it?
10 A. Yes.
11 Q. Okay. And so, in that, you saw the notice to
12 the purchaser, right -- in Exhibit 5?
13 A. Correct.
14 Q. Where it says: Do not sign this contract
15 until you read it or if it contains blank spaces,
16 right?
17 A. Correct.
18 Q. And did you read this contract, Exhibit 5?
19 A. I went over it with Marshall, who was the
20 membership rep who signed me up.
21 Q. Okay. So did you read it?
22 A. We went over it together, so we read it --
23 Q. Together?
24 A. -- together.
25 Q. Okay. And that is your signature on the

(303) 691-0202 * (303) 691-2444
Exhibit C
22
Page 153
1 bottom of -- or, I guess, at the top of Page 2 of
2 Exhibit 5, right?
3 A. Correct.
4 Q. And it says: Signature or account holder,
5 right?
6 A. Correct.
7 Q. And then, you also signed Exhibit 5 again at
8 the bottom of Page 2, right?
9 A. Correct.
10 Q. Under that section, where it says under
11 lined: Do not sign this agreement until you have read
12 both sides?
13 A. Correct.
14 Q. All right. How did you sign this agreement?
15 A. Electronically.
16 Q. Okay. All right. And so, you saw the
17 "waiver of liability" section just above your second
18 signature, right?
19 A. Correct.
20 Q. And you read that?
21 A. Correct.
22 Q. Now, that "waiver of liability" section,
23 that's in all capital letters, right?
24 A. Yes.
25 Q. And it's bold?

(303) 691-0202 * (303) 691-2444
Exhibit C
22
Page 154
1 A. Yes.
2 Q. And it says -- and "waiver of liability" is
3 underlined?
4 A. Yes.
5 Q. Okay. And you understand what waiver -- and
6 at the time you signed this, you understood what waiver
7 of liabilities were, right?
8 A. Correct.
9 Q. And what you were doing by signing that
10 waiver?
11 A. Correct.
12 And I signed it with the understanding that
13 the equipment that would be contained in this gym would
14 be maintained and would not be defective.
15 Q. So what gave you that understanding?
16 A. Because nobody is going to go to a gym and
17 expect improperly maintained equipment.
18 They are not going to take on the risk -- the
19 additional risk of injury by using equipment that's not
20 working. That doesn't make any sense.
21 Q. But you did understand, like you said
22 earlier, that at some point in time, gym equipment
23 might malfunction?
24 A. Yes.
25 And I would have expected that they would

(303) 691-0202 * (303) 691-2444
Exhibit C
22
Page 155
1 have had a standard operating procedure to address
2 that, and they would have been keeping their equipment
3 proactively maintained in working condition.
4 Q. Okay. So after reading that "waiver of
5 liability," you went ahead and you signed it, right?
6 A. Correct.
7 Q. And you agreed to that membership agreement?
8 A. Correct.
9 Q. Did you ask any questions about this
10 membership agreement, at that time, with Marshall?
11 A. I don't remember.
12 Q. Okay. Do you remember that
13 conversation -- any conversation with Marshall?
14 A. I remember the tour. And I remember sitting
15 down with him. And he was gone within the week.
16 Q. Do you know why?
17 A. He had quit.
18 Q. Why?
19 A. That, I don't know.
20 Q. So tell me about the tour.
21 A. It was very quick. It was -- he showed me
22 the front desk area and the kids' center, where the
23 spin area was, where the stretching area was, the
24 cardio. He showed me the weight, and then the locker
25 room.

(303) 691-0202 * (303) 691-2444
Exhibit C
22
Transcript of the Testimony of
ANNEMICHELLE JOHNSON, VOLUME II

July 10, 2018
AnneMichelle
v
Gold's Gym Rockies, LLC

Hansen and Company, Inc.
Registered Professional Reporters
1600 Broadway, Ste. 470
Phone (303) 691-0202 * Fax (303) 691-2444
Exhibit C
22
AnneMichelle ANNEMICHELLE JOHNSON, VOLUME II
Gold's Gym Rockies, LLC July 10, 2018
Page 160
Case No. 1:18-CV-00047-WJM-KMT

______________________________________________________
DEPOSITION OF: ANNEMICHELLE JOHNSON - VOLUME II

July 10, 2018
______________________________________________________
Plaintiff,
v.
GOLD'S GYM ROCKIES, LLC, A DELAWARE LIMITED LIABILITY,
Defendant.
______________________________________________________
PURSUANT TO NOTICE AND AGREEMENT, the

DEPOSITION OF ANNEMICHELLE JOHNSON was taken on behalf
of the Plaintiff at 723 South Cascade Avenue, Colorado
Springs, Colorado, 80903, on July 10, 2018, at 10:03
a.m., before Sundae A. Stoa, Registered Professional
Reporter, Federal Certified Realtime Reporter, and
Notary Public within Colorado.

(303) 691-0202 * (303) 691-2444
Exhibit C
22
Page 161
1 A P P E A R A N C E S
2
3 For the Plaintiff: J.C. MARTIN, III, ESQ.
LAW OFFICE OF J.C. MARTIN
4 723 South Cascade Avenue
Colorado Springs, CO 80903
5 (719) 602-5239
pit@pit-law.com
6
7
For the Defendant: ASHLEY R. LARSON, ESQ.
8 SUTTON|BOOKER|P.C.
4949 South Syracuse
9 Suite 520
Denver, CO 80237
10 (303) 730-6204
alarson@suttonbooker.com
11
Also Present: None
12
13
14
15
16
17
18
19
20
21
22
23
24
25

(303) 691-0202 * (303) 691-2444
Exhibit C
22
Page 162
1 I N D E X
2 PAGE
EXAMINATION OF ANNEMICHELLE JOHNSON:
3 July 10, 2018
4 By Ms. Larson: 164
By Mr. Martin: 263
5
INITIAL
6 DEPOSITION EXHIBITS REFERENCE
7 Exhibit 6 (Transcript) Statement of:
AnneMichelle Johnson - May 17, 166
8 2017
9 Exhibit 7 Penrose St. Francis Hospital - 171
Emergency Department Report -
10 3/31/16
11 EXHIBIT 8 Penrose St. Francis Hospital - 175
12 4/8/16
13 Exhibit 9 Penrose St. Francis Hospital - 180
14 4/12/16
15 Exhibit 10 "Plaintiff's Answers to 198
Defendant's Interrogatories,
16 Requests for Admission and
Requests for Production of
17 Documents to Plaintiff"
18
Exhibit 11 Facebook Pages, Pictures, and 201
19 Posts - AnneMichelle Johnson
20 Exhibit 12 FitBit Information - 2016-01-01 240
to 2016-01-31
21
Exhibit 13 Member Check-Ins - Johnson, 247
22 Annemichelle
23 Exhibit 14 Sport & Health - Membership 262
Agreement - Annemichelle Johnson
24
25 (Attached to Original and Copy Transcripts.)

(303) 691-0202 * (303) 691-2444
Exhibit C
22
Page 262
1 Q. For the return of the security deposit?
2 A. Yes, exactly. Yeah.
3 Q. When was that?
4 A. We moved out October 30th of '15. And we
5 filed -- I think it was December or January of '15 or
6 '16, somewhere in there.
7 Q. Did that resolve?
8 A. It did.
9 Q. With a trial?
10 A. No, she paid us. And she paid us what
11 she -- she paid us more than what she owed us, which is
12 what she should have done.
13 Q. So you just settled it out?
14 A. We did.
15 (Deposition Exhibit 14 was marked.)
16 Q. (BY MS. LARSON) So the court reporter handed
17 you what has been marked Exhibit 14.
18 Do you know what Exhibit 14 is?
19 A. This would have been the agreement to join
20 Sport & Health, who now has a new name, I don't know
21 what it is -- in Frederick.
22 Q. And that's where you worked out with Corky?
23 A. No.
24 Q. I'm sorry. Oh, this is Maryland?
25 A. It is.

(303) 691-0202 * (303) 691-2444
Exhibit C
22
Page 263
1 Q. Okay. And that's your signature at the end?
2 I think it's at the very end of Exhibit A?
3 A. It looks like it.
4 Q. Okay. And you understood when you were
5 signing this agreement that you were waiving your
6 liability against this gym, correct?
7 A. Yeah.
8 Q. And assuming the risk of working out at that
9 gym, correct?
10 A. And assuming that all equipment was going to
11 be properly maintained and in good working order, yes.
12 Q. Okay. All right.
13 MS. LARSON: I don't have anymore questions.
14 You are all done, unless he has some.
15 MR. MARTIN: I have no questions.
16 THE DEPONENT: Okay.
17 MS. LARSON: Thanks. I appreciate your help.
18 MR. MARTIN: I do have one question, I
19 apologize.
20 EXAMINATION
21 BY MR. MARTIN:
22 Q. AnneMichelle Johnson, throughout this
23 deposition you've been asked numerous questions about
24 what Gold's Gym did or -- did do, should have done, or
25 didn't do.

(303) 691-0202 * (303) 691-2444
Exhibit C

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Case 1:18-cv-00047-WJM-KMT Document 28 Filed 08/23/18 USDC Colorado Page 1 of 15

IN THE UNITED STATES DISTRICT COURT

GOLD'S GYM ROCKIES, LLC, a Delaware Limited Liability,

DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Gold’s Gym operates fitness clubs in Colorado Springs, Colorado. Plaintiff

Gym Membership Agreement (the “Membership Agreement”). In the Membership Agreement,

which includes the risk of broken bones and/or muscle strains.

This Motion seeks enforcement of the exculpatory provisions in Gold’s Gym’s

II. Movant’s Statement of Material Facts 1

Exhibit A, Affidavit of Crysten Mosher; Exhibit B, Relevant Portions of Plaintiff’s Answers to

2. Plaintiff read her Membership Agreement. Exhibit C, Relevant Portions of the

Deposition of Plaintiff AnneMichelle Johnson, at 152:8-10.

3. The Membership Agreement contained a waiver of liability provision, which

WAIVER OF LIABILITY: MEMBER ACKNOWLEDGES THAT THE USE OF

OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS AND

Exhibit A at 4 (emphasis in original).

4. Plaintiff read the “Waiver of Liability” section of the Membership Agreement.

5. Below the Waiver of Liability section, the Membership Agreement includes an

“ASSUMPTION OF RISK AND INDEMNIFICATION” provision. Exhibit A at 4

6. In the Assumption of Risk and Indemnification section, Plaintiff acknowledged

equipment can malfunction from time to time. Exhibit C at 154:21-24.

9. Plaintiff signed the Membership Agreement. Exhibit A at 4; Exhibit C at

152:25-153:13; 155:4-8. The signature contained on the Membership Agreement is Plaintiff’s

signature. Exhibit A at 4; Exhibit C at 152:25-153:13.

“WAIVER OF LIABILITY” and “ASSUMPTION OF RISK AND INDEMNIFICATION”

Exhibit A at 4; Exhibit C at 153:7-13.

where she can do free weight exercises. Exhibit C at 68:14-20.

equipment. Exhibit C at 77:3-15.

of physical risks associated” with working out. Exhibit C at 81:23-82:3.

16. In response to Plaintiff’s Amended Complaint, Gold’s Gym asserted affirmative

III. Legal Standard

defense—on which summary judgment is sought.” Id.

F.3d 1028, 1037 (10th Cir. 2011) (citations omitted).

IV. Gold’s Gym’s Membership Agreement Precludes Plaintiff’s Claim.

release claims of negligence. Neither does it always preclude exculpatory agreements as to

“[A]n exculpatory clause in a contract relating to recreational activities will be given

In determining the enforceability of an exculpatory agreement a Court considers four

expressed in clear and unambiguous language. Id.

‘while upon the aircraft of the Corporation.’” Id. at 378.

A. The Jones Factors Favor Enforcement of the Gold’s Gym Membership

(Colo. App. 2016).

1. Gold’s Gym’s Recreational Services Do Not Involve a Duty to the Public.

The Colorado Supreme Court distinguishes between businesses engaged in recreational

nature and do not implicate a public duty. See id.

P.2d at 376-77; Stone, 411 P.3d at 229.

2. Gold’s Gym’s Recreational Services are not Essential Services.

411 P.3d at 229.

3. Plaintiff and Gold’s Gym Fairly Entered into the Membership

This is because recreational activities are not essential services or practically

Brigance, 883 F.3d at 1253-54 (quotations, citations, and alterations in original).

229; Hamill, 262 P.3d at 950; Jones, 623 P.2d at 375.

Chadwick, 100 P.3d at 467).

P.2d at 782; Jones, 623 P.2d at 372.

ACKNOWLEDGES THAT THE USE OF GOLD’S GYM’S FACILITIES [AND]

EQUIPMENT. . . INVOLVES AN INHERENT RISK OF PERSONAL INJURY TO

“[t]here is an inherent risk to exercise, in general.” MSMF ¶ 14; Exhibit C at 81:6-10.

EXERCISE EQUIPMENT [AND] MACHINES;” “INJURIES ARISING FROM GOLD’S

GYM’S NEGLIGENCE, WHETHER DIRECT OR INDIRECT;” and “INJURIES. . .

RESULTING FROM EXERCISING AT ANY GOLD’S GYM, INCLUDING. . . SPRAINS

contemplated by her Membership Agreement. MSMF ¶¶ 3, 15; Exhibit A at 4.

Agreement just below sections entitled “WAIVER OF LIABILITY” and “ASSUMPTION OF

RISK AND INDEMNIFICATION.” MSMF at ¶ 10.

agreed to the Membership Agreement’s waiver of liability provision. MSMF at ¶¶ 1, 9; Exhibit

C at 155:4-8. Plaintiff signed the Membership Agreement. MSMF at ¶¶ 1, 9.

the Membership Agreement. MSMF at ¶ 8; Exhibit C at 154:5-11. Moreover, Plaintiff was

Membership Agreement by executing the Membership Agreement. MSMF at ¶ 9; Exhibit C at

Membership Agreement’s exculpatory provision is expressed in clear and unambiguous

Gold's Gym Motion for Summary Judgment

Gold's Gym Motion for Summary Judgment