Thomas Nearhood v. Anytime Fitness

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

15-1142

THOMAS NEARHOOD

VERSUS

ANYTIME FITNESS, ET AL.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 248,664
HONORABLE THOMAS YEAGER, DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of Jimmie C. Peters, Marc T. Amy, and David Kent Savoie,
Judges.

AFFIRMED.

Ernie L. Vallery
525 Johnston Street
Alexandria, LA 71301
(318) 442-6565
COUNSEL FOR PLAINTIFF/APPELLANT:
Thomas Nearhood

Andrew D. Weinstock
Duplass, Zwain, Bourgeois, Pfister & Weinstock
3838 N. Causeway Boulevard, Suite 2900
Metairie, LA 70002
(504) 832-3700
COUNSEL FOR DEFENDANTS/APPELLEES:
Anytime Fitness, LLC
Precor, Inc.

Ashley C. Wimberly
Post Office Box 1629
Baton Rouge, LA 70821
(255) 214-1908
COUNSEL FOR DEFENDANT/APPELLEE:
Fitness Partners of Pineville

AMY, Judge.

The plaintiff was injured when the weighted bar of a Smith machine1 fell on

him. Thereafter, the plaintiff filed suit against the operators of the gym where the

injury occurred, the franchisor of the gym, and the manufacturer of the equipment.

The franchisor filed a motion for summary judgment. After a hearing, the trial

court granted that motion and dismissed the plaintiff’s claims against the

franchisor. The plaintiff appeals. For the following reasons, we affirm.

Factual and Procedural Background

The plaintiff, Thomas Nearhood, was exercising at an Anytime Fitness

location when the accident giving rise to this litigation occurred. According to Mr.

Nearhood, he was performing squat exercises on a Precor-brand Smith machine

when the weighted bar of the machine fell on him, causing “serious internal

injuries[.]” Mr. Nearhood ultimately filed suit against Anytime Fitness, Inc., the

franchisor of the gym; Fitness Partners of Pineville, LLC, the franchisee of that

particular Anytime Fitness franchise location; and Precor, Inc., the manufacturer of

the Smith machine. Therein, Mr. Nearhood made several claims, including that

Fitness Partners was negligent in failing to instruct him in the proper use of the

Smith machine; that the Smith machine was defective because it did not have

adequate warnings and that a safer alternative design existed; and that Anytime

Fitness was liable because it allowed its franchisee to possess a dangerous

instrumentality.

Fitness Partners and Precor subsequently filed motions for summary

judgment, both of which were granted by the trial court. Mr. Nearhood appealed

1
In his petition, the plaintiff indicates that the equipment at issue was a “Precor Icarian
Fitness Smith machine[.]”

those judgments. This court affirmed the trial court’s grants of the motions for

summary judgment with regard to Fitness Partners’ motion for summary judgment

in Nearhood v. Anytime Fitness-Kingsville, 15-308 (La.App. 3 Cir. 11/4/15), 178

So.3d 623, writ denied, 16-211 (La. 4/15/16), ___ So.3d ___, and with regard to

Precor’s motion for summary judgment in Nearhood v. Fitness Partners of

Pineville, et al., 15-904 (La.App. 3 Cir. 2/10/16) (unpublished opinion), writ

denied, 16-461 (La. 4/15/16), ___ So.3d ___.

Anytime Fitness also filed a motion for summary judgment on the basis that

Anytime Fitness, as the franchisor, had no involvement in the day-to-day

operations of Fitness Partners’ franchise location and that Mr. Nearhood could

therefore not meet his burden of proof at trial. Mr. Nearhood objected, asserting

that Anytime Fitness exercised control over various aspects of Fitness Partners’

operation of the franchise and that there had been inadequate time for discovery.

After a hearing, the trial court granted Anytime Fitness’ motion for summary

judgment.

Mr. Nearhood appeals, asserting that the trial court erred in granting the

motion for summary judgment.

Discussion

Motions for Summary Judgment

Summary judgment is favored in our law and is designed to “secure the just,

speedy, and inexpensive determination of every action,” and “shall be construed to

accomplish those ends.” La.Code Civ.P. art. 966(A)(2).2 A motion for summary

judgment shall be granted after adequate discovery “if the pleadings, depositions,

2
We note that we use the version of Article 966 in effect on September 21, 2015, i.e. the
date of the hearing. Article 966 has since been amended by 2015 La. Acts 422, effective January
1, 2016.

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answers to interrogatories, and admissions, together with the affidavits, if any,

admitted for purposes of the motion for summary judgment, show that there is no

genuine issue as to material fact, and that mover is entitled to judgment as a matter

of law.” La.Code Civ.P. art. 966(B)(2). Further, although the burden of proof

remains with the moving party,

if the movant will not bear the burden of proof at trial on the matter
that is before the court on the motion for summary judgment, the
movant’s burden on the motion does not require him to negate all
essential elements of the adverse party’s claim, action, or defense, but
rather to point out to the court that there is an absence of factual
support for one or more elements essential to the adverse party’s
claim, action, or defense. Thereafter, if the adverse party fails to
produce factual support sufficient to establish that he will be able to
satisfy his evidentiary burden of proof at trial, there is no genuine
issue of material fact.

La.Code Civ.P. art. 966(C)(2). The appellate court reviews the trial court’s

judgment on a motion for summary judgment de novo, using the same criteria as

the trial court to determine whether summary judgment is appropriate—whether

there is a genuine issue of material fact and whether the moving party is entitled to

judgment as a matter of law. Evans v. Bordelon, 13-888 (La.App. 3 Cir. 3/19/14),

161 So.3d 674.

Adequate Discovery

The version of La.Code Civ.P. art. 966 in effect at the time of the hearing

indicates that summary judgment is appropriate after “adequate discovery” has

been completed. See La.Code Civ.P. art. 966(C)(1). However, that provision does

not require that summary judgment be absolutely delayed until discovery is

complete. Madison v. State, Dep’t of Pub. Safety & Corr., 14-1067 (La.App. 3 Cir.

5/6/15), 164 So.3d 381 (citing Gunter v. Jefferson Davis Parish, 11-1018 (La.App.

3 Cir. 2/1/12), 84 So.3d 705), writ denied, 15-1117 (La. 9/18/15), 178 So.3d 147.

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Where it appears that there are no genuine issues of material fact, summary

judgment should not be delayed pending discovery, absent a showing of probable

injustice by the party opposing the summary judgment. Id. Further, the appellate

court reviews the trial court’s determination with regard to this issue pursuant to an

abuse of discretion standard. Id.

Here, the record indicates that suit in this matter was initially filed on

October 22, 2013. Anytime Fitness’ motion for summary judgment was filed on

July 23, 2015, more than a year and a half after suit was filed. The record indicates

that the issue of adequate discovery was very briefly addressed at the hearing on

Anytime Fitness’ motion for summary judgment. Mr. Nearhood asserted that

Anytime Fitness did not file an answer until July of 2015, and that discovery might

reveal “this is something orchestrated by Anytime Fitness.” Anytime Fitness’

attorney noted that Anytime Fitness filed an answer to Mr. Nearhood’s initial

petition and first amended petition with Fitness Partners and, when Mr. Nearhood

filed his second amended petition, took the opportunity to “clean up the pleadings”

by filing an answer to all of Mr. Nearhood’s petitions at that time.

The record indicates that some discovery—such as Mr. Nearhood’s

deposition and inspection of the Smith machine at issue—had already been

completed as of the hearing on Fitness Partners’ motion for summary judgment

held on November 17, 2014. We also note that, at the hearing on Fitness Partners’

motion for summary judgment, the trial court advised Mr. Nearhood that, if he

believed that adequate discovery had not been conducted, that the appropriate

method to bring that issue to the court’s attention was to file a motion to reset the

court date. Our review of the record in this matter does not reveal that Mr.

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Nearhood filed a motion to reset or continue the hearing on the present motion for

summary judgment.

Given this information, we find no abuse of discretion in the trial court’s

determination that adequate discovery had been conducted. Mr. Nearhood’s

argument in this regard is without merit.

Liability as Franchisor

The remaining arguments asserted by Mr. Nearhood concern the merits of

Anytime Fitness’ motion for summary judgment. Mr. Nearhood contends that the

trial court erred in determining that Anytime Fitness was not liable as the

franchisor of Fitness Partners’ franchise location.

In his pleadings, Mr. Nearhood asserts that Anytime Fitness is liable for his

damages under theories of strict liability and general negligence “because of

maintaining . . . with their franchisee [a] dangerous and defective instrumentality.”

Mr. Nearhood contends that Anytime Fitness should have ensured that its

franchisee was taking various steps in order to protect its franchisee’s customers,

and that it assumed responsibility because the electronic key system used by

Anytime Fitness’ franchisees ensured “almost universal gym access[.]” In order to

prevail on that claim, he must prove:

(1) that the thing which caused the damage was in the defendant’s
custody or control, (2) that it had a vice or defect that presented an
unreasonable risk of harm, (3) that the defendant knew or should have
known of the vice or defect, (4) that the damage could have been
prevented by the exercise of reasonable care, and (5) that the
defendant failed to exercise such reasonable care.

Riggs v. Opelousas Gen. Hosp. Trust Auth., 08-591, p. 4 (La.App. 3 Cir. 11/5/08),

997 So.2d 814, 817.

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Similarly, as noted in Taylor v. Holiday Inn, Inc., 595 So.2d 735 (La.App. 5

Cir. 1992), in order for a claimant to succeed on a premises liability action, the

claimant must establish that the defendant had custody of the defective premises.

In determining whether a defendant has care, custody, and control (garde) of a

thing, “courts should consider (1) whether the person bears such a relationship as

to have the right of direction and control over the thing; and (2) what, if any, kind

of benefit the person derives from the thing.” Dupree v. City of New Orleans, 99-

3651, p. 8 (La. 8/31/00), 765 So.2d 1002, 1009. Where a franchisor does not exert

day-to-day control over its franchisee’s management procedures, our courts have

found that the franchisor did not have custody or garde of the alleged defective

premises. See Espinosa v. Accor North America, Inc., 14-1276 (La.App. 4 Cir.

7/8/15), 174 So.3d 123; Chambers-Johnson v. Applebee’s Restaurant, 12-98

(La.App. 5 Cir. 9/11/12), 101 So.3d 473; Taylor, 595 So.2d 735.

In its motion for summary judgment, Anytime Fitness contended that,

although it required that Fitness Partners purchase its equipment from a designated

list of vendors, it did not specify which equipment Fitness Partners had to purchase

specifically and that it had no day-to-day control over the operations of Fitness

Partners’ franchise location. In support of this contention, Anytime Fitness

submitted the affidavit of Jennifer Yiangou, the Vice-President of Operations for

Anytime Fitness. Ms. Yiangou indicated therein that:

Like all other ANYTIME FITNESS® franchised fitness centers,
Fitness Partners’ ANYTIME FITNESS® Center is independently
owned and operated, and AF has no right to control the day-to-day
operations. Fitness Partners is solely responsible for the manner and
the means of its day-to-day operations including the hiring,
scheduling, supervision and discipline of employees, managing its
expenses, payroll, and accounting.

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Anytime Fitness also submitted a copy of the franchise agreement between it

and Fitness Partners. Anytime Fitness pointed specifically to provisions noting

that Fitness Partners “will at all times be responsible for the conduct of the day-to-

day operation of [its] Anytime Fitness Center and for the terms of employment for

[its] employees” and “that the mandatory standards, specifications and policies we

establish are not aimed at the day-to-day operation of [Fitness Partners’] business,

which will solely be within [Fitness Partners’] control, but are merely intended to

preserve the goodwill of the System and Marks.” Ms. Yiangou’s affidavit also

indicated that “[o]ther than providing its franchisees access to designated vendor

lists on [Anytime Fitness’] internet dashboard, [Anytime Fitness] does not mandate

or control the type of fitness equipment purchased or used by its franchisees.”

Here, Anytime Fitness established that it did not have day-to-day control

over its franchisee’s management procedures nor did it require its franchisee to

purchase the specific equipment at issue in this matter. Thus, the burden of proof

pursuant to La.Code Civ.P. art. 966(C)(2) shifted to Mr. Nearhood to “produce

factual support sufficient to establish that he will be able to satisfy his evidentiary

burden of proof at trial[.]” Our review of the record reveals that Mr. Nearhood did

not submit any evidence sufficient to show that Anytime Fitness had any control

over the day-to-day procedures of its franchise.

Mr. Nearhood also argues that Anytime Fitness could have required that

Fitness Partners take certain steps that may have resulted in the accident being

avoided. The Franchise Agreement submitted into evidence requires that “[a]ll

equipment will be kept in good working order and will meet our quality

standards.” However, the remedies provided for in Section 14 of Franchise

Agreement are limited to notice with an opportunity to cure and termination of the

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agreement. We note that in Taylor, 595 So.2d 735, the fifth circuit considered this

type of recourse as an indication that the franchisor did not have day-to-day control

over the franchisee’s premises.

Accordingly, we conclude that Mr. Nearhood did not meet his burden of

proof as required by La.Code Civ.P. art. 966(C)(2) and that summary judgment in

favor of Anytime Fitness was appropriate. Mr. Nearhood’s arguments in this

regard are without merit.

DECREE

For the foregoing reasons, the trial court’s judgment granting the motion for

summary judgment filed by the defendant, Anytime Fitness, Inc., is affirmed.

Costs of this appeal are assessed to the plaintiff, Thomas Nearhood.

AFFIRMED.

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