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Case marks second time in two years that Moss & Colella overcomes challenging recreational waiver protection

Media contact: Barbara Fornasiero, EAFocus Communications, 248.260.8466;

Southfield, Mich.  – – Dec. 2, 2016 – – A. Vince Colella, managing partner of Mich.-based personal injury and civil rights law firm, Moss & Colella, P.C., announced that the Court of Appeals on Nov. 30, 2016 overturned a decision by the Oakland County Circuit Court, allowing a gross negligence case against Lifetime Fitness to proceed to trial.

On February 17, 2014, David Alvarez accompanied his wife and daughter to Lifetime Fitness in Novi, Mich. to utilize its climbing wall; none had every climbed the wall before. Upon arrival at Lifetime, they signed a standard recreational waiver releasing Lifetime of all claims of negligence.

The gross negligence claim at issue centers around the fact that Lifetime personnel failed to make certain that David Alvarez was harnessed correctly.   Alvarez testified that after climbing 30 feet to the top of the wall, he was told to “let go” by the Lifetime employee. Because the harness was not properly secured to the locking mechanism, it gave way, causing Alvarez to fall to the ground and sustain serious injury to his back and both legs.

A lawsuit was filed in the Oakland County Circuit Court; shortly after the close of discovery, Lifetime filed a motion to dismiss the case, claiming there was no evidence that its employee’s actions were grossly negligent. The trial court granted Lifetime’s motion and dismissed the case finding “…the plaintiff failed to present any evidence establishing that Lifetime was grossly negligent in failing to take precautions for plaintiff’s safety.”

Alvarez appealed and the Court of Appeals reversed the trial court, remanding the case for trial. The Court of Appeals held that Lifetime:

  • “Ignored a clear visible indication that Alvarez was climbing in an unsafe manner”;
  • “Took no steps to avoid the danger associated with climbing the rock wall with an improperly secured harness”;
  • “Instructed (Alvarez) to push of the wall,” disregarding signs that the harness was placed on backwards.

“Recreational waivers are rarely defeated, but this case is the second time in two years that Moss & Colella has done so,” Colella said. “Our success in overturning the trial court was in convincing the Court of Appeals that gross negligence is not an insurmountable or absolute defense and emphasizing that establishing gross negligence does not require an admission by the grossly negligent actor that there was no regard for a substantial risk.”

About Moss & Colella

Established in 1997, Moss & Colella represents the victims of personal injury, civil rights violations, discrimination and wrongful death.   The firm is recognized as a leader in complex tort litigation, including excess and deadly force, jail death, sexual abuse and harassment, auto and truck accidents, and other serious injury and wrongful death claims.   To learn more about the firm and its diverse areas of practice, visit the Moss & Colella website.