Melissa Moody v. Dynamic Fitness Management, Ltd.

• Court: Missouri Court of Appeals
• Decided: June 25, 2024
• Docket: ED111786
• Status: Published

Opinion

In the Missouri Court of Appeals Eastern District DIVISION TWO

MELISSA MOODY, ) No. ED111786 ) Respondent, ) Appeal from the Circuit Court ) of the City of St. Louis vs. ) ) Honorable Michael W. Noble DYNAMIC FITNESS MANAGEMENT, LTD., ) ) Appellant. ) FILED: June 25, 2024

Dynamic Fitness Management, Ltd. (“DFM”), appeals the judgment entered after a jury

verdict in favor of Melissa Moody on her claim for damages arising from an injury she sustained

while weightlifting during a group class led by a DFM trainer. We conclude that Moody’s claim

for negligence is barred by the doctrine of implied primary assumption of the risk. The judgment

is reversed.

Factual and Procedural Background

Moody joined a fitness center in March 2011 and wanted to work out with a personal trainer

to help her stay motivated and in a routine. She initially worked individually with a DFM trainer

in one-on-one sessions. During those sessions, among other types of exercise, Moody used

kettlebells and dumbbells but never a barbell. When that trainer was transferred to a different

location, Moody began attending a one-hour group class led by a different trainer (“the group

trainer”) in January 2013. Moody knew that the group trainer focused on Olympic-style weight training, which uses a barbell, and “wanted to give it a try.” Moody understood that weightlifting

included a risk of injury and that she could be injured if she attempted to lift too much weight.

The group class usually had five or six clients. Working in pairs, participants rotated

through a series of weightlifting and other exercises at various stations. According to Moody, the

group trainer would start someone on an exercise and then “walk[] around teaching the class.” For

some of the exercises, once a client could perform an exercise comfortably at a certain weight, the

client could add more weight and increase progressively. Sometimes Moody added weight and

sometimes she did not. Moody understood that if she ever felt like “something was too much

weight for [her],” then she could reduce the weight or simply decide not to do the exercise at all.

When questioned at trial about whether the group trainer ever asked her to do something she could

not do or did not feel comfortable doing during the class, Moody testified that she felt

uncomfortable “all the time,” but there was “nothing in particular that [she] didn’t want to try

doing.”

On May 5, 2013, at her twenty-fifth class with the group trainer, Moody was injured while

performing a push press, a very common exercise in which the participant takes a barbell off a

rack at about chest-height, drops his or her knees “a little bit” and then pushes the barbell overhead.

Moody had never before tried this particular exercise. The group trainer demonstrated how to

perform the push press and then instructed Moody to do three repetitions before he left the push

press station to attend to other clients. The barbell itself and the weights already loaded onto it

totaled 65 pounds. Moody testified that performing the push press “wasn’t easy,” describing it as

“kind of heavy[,]” but she explained that she “wanted to try it.” She was able to complete all three

repetitions at that weight without any problems. When the group trainer returned to the push press

station, he added weight to the barbell for a total of 85 pounds and instructed Moody to do three

2 more repetitions. He again left to check on other clients. Moody thought that 85 pounds was “kind

of a lot” of weight. Nevertheless, as she explained at trial, she “was, again, going to try it.” Moody

completed the first two repetitions, which were “not easy” because “[i]t was a lot of weight.” Still,

she did both of them without any problem. Moody expected to be able to complete the third

repetition as well, but as she attempted to lift the barbell, she felt an excruciating pain shooting

down her neck, shoulders and back. Moody managed to place the barbell back on the rack before

she collapsed. She was ultimately diagnosed with a herniated disc in her neck and underwent two

surgeries. At trial, Moody acknowledged that she voluntarily participated in the push press

exercise and understood the risk of injury associated with it.

Moody’s first personal trainer, who had worked with her in one-on-one sessions, testified

as an expert for Moody at trial. She explained that DFM’s standards provided that trainers were

expected to conduct initial assessments of clients before training begins, which she did with

Moody. She opined at trial that, because Moody had tightness in her neck and shoulders that

limited her range of motion in her upper body, Moody lacked the range of motion and the

appropriate posture to perform overhead lifts with a barbell. The group trainer did not conduct an

initial assessment of Moody when she began working with him in the class. Moody testified that

she did not communicate with the group trainer the same way she had with her first personal trainer

during their one-on-one sessions, explaining, “With the group training, we never really talked

about anything specifically, because there were four to five other people in the group.”

Moody filed a petition alleging that the group trainer’s negligence in directing her to

perform an 85-pound push press caused her injury. The trial court instructed the jury under

comparative fault principles, rejecting DFM’s argument that Moody’s claim was completely

barred by the doctrine of implied primary assumption of the risk. The verdict director instructed

3 the jury to assess a percentage of fault to DFM if it found any of the following conduct by the

group trainer was negligent and caused or contributed to cause Moody’s damages: (a) failing to

conduct an initial assessment of Moody, (b) failing to assess whether she was capable of

performing a push press, (c) failing to supervise her while she performed that exercise or (d)

instructing her to perform a push press when it was unsafe to do so. The trial court also instructed

the jury to assess a percentage of fault to Moody if it found that she had been negligent by failing

to disclose a prior medical condition or by voluntarily participating in the push press with

knowledge and appreciation of the risk of injury and that such negligence caused or contributed to

cause her damages. The jury returned a verdict in favor of Moody, finding that her damages were

$1 million and assessing 30 percent of the fault to DFM and 70 percent to Moody. The trial court

denied DFM’s post-trial motion, and this appeal follows.

Discussion

In its first point on appeal, DFM contends the trial court erred in rejecting its argument that

Moody’s cause of action was barred under the doctrine of implied primary assumption of the risk.

We agree.

The doctrine of implied primary assumption of the risk provides that “if a person

voluntarily consents to accept the danger of a known and appreciated risk, that person may not sue

another for failing to protect him from it.” Coomer v. Kansas City Royals Baseball Corp., 437

S.W.3d 184, 191 (Mo. banc 2014). The participant in an activity is deemed to have assumed the

risk of injury from those risks that are inherent to that activity. Id. at 191-92. The defendant owes

no duty of reasonable care with respect to such inherent risks, and recovery on a claim of

negligence by the participant against the defendant is completely barred. Id.; see also Munoz v.

4 Six Flags St. Louis, LLC, 670 S.W.3d 239, 243-44 (Mo. App. E.D. 2023).1 Nevertheless, a

defendant still owes a duty of reasonable care “not to alter or increase” the inherent risks of a

particular activity. Coomer, 437 S.W.3d at 197-98. For example, in Sheppard by Wilson v.

Midway R-1 Sch. Dist., 904 S.W.2d 257, 264 (Mo. App. W.D. 1995), the court found that although

performing a long jump inherently involves the risk of injury from landing badly, the defendant

could still be liable to the plaintiff who was injured because of the defendant’s negligent

preparation of the landing pit. See also Ferbet v. Hidden Valley Golf & Ski, Inc., 618 S.W.3d 596,

607 (Mo. App. E.D. 2020) (finding that the risk of injury from an uneven sliding surface is inherent

in snowtubing but likely could be increased by negligent maintenance). Issues surrounding a

defendant’s duty are questions of law, which we review de novo. Payne v. Fiesta Corp., 543

S.W.3d 109, 126-27 (Mo. App. E.D. 2018). We view the evidence at trial and the reasonable

inferences drawn therefrom in the light most favorable to Moody. See id.

We must first determine whether the risk of sustaining an injury is inherent in performing

an 85-pound push press during a group class led by a personal trainer. We conclude it is. “For a

risk to be inherent, it must be structural or involved in the constitution or essential character of

something[.]” Coomer, 437 S.W.3d at 201 (internal quotation marks, citations and emphasis

omitted). “The mechanism of injury can determine whether a particular risk was inherent to the

activity.” Munoz, 670 S.W.3d at 244. Here, the mechanism of injury is not only essential to the

character of the activity in this case, it is itself the activity: performing an 85-pound push press.

An integral part of this and other exercises in this class—and many other workouts—is putting

physical stress on the body by intentionally pushing oneself beyond what is comfortable. Stressing

1 In the past, implied secondary assumption of the risk also barred recovery based on the plaintiff’s own negligence. But, as the Court explained in Coomer, since the adoption of comparative fault, the plaintiff’s conduct may only be considered as a means of reducing his or her recovery, as it was in this case, not as a complete bar. 437 S.W.3d at 194 (citing Gustafson v. Benda, 661 S.W.2d 11 (Mo. banc 1983)).

5 the body carries a risk of injury. Eliminating physical stress on the body would alter the

fundamental nature of this type of exercise. In fact, Moody admitted at trial that there is a risk of

injury associated with weightlifting in general and with performing a push press in particular.

We must next consider whether DFM increased that inherent risk of injury. Moody

contends there was an increased risk because the group trainer did not conduct an initial assessment

of Moody or assess her ability to do a push press.2 Moody claims such assessments would have

revealed that she was incapable of doing a barbell push press and that the exercise was “completely

inappropriate” for Moody based on her range of motion and posture. Moody also asserts that the

risk of injury was increased because the group trainer did not supervise her while she performed

the push press. But any increase to the risk of injury by not having the trainer stand beside her to

supervise Moody’s every repetition of this exercise was itself an inherent part of this group class.

Unlike one-on-one personal training, in the structure of a one-hour group class, it is essential that

multiple clients be able to perform exercises simultaneously so that each client can get an effective

workout in that amount of time. It is also essential that the trainer move around among those

clients, which necessarily means each client will not always get one-on-one supervision during

each exercise. Eliminating that aspect of group exercise—so that only one client exercises at a

2 Moody also contends that the group trainer’s failure to review the first trainer’s written assessment of Moody increased the risk of injury, such that her claim should not be completely barred by the doctrine of implied primary assumption of the risk. As counsel pointed out at oral argument, there was evidence at trial regarding whether such a review occurred, but—contrary to counsel’s assertion—this particular act of alleged negligence was not raised in relation to the implied primary assumption of the risk doctrine at trial. Rather, Moody cited only generally to the group trainer’s negligence when responding to DFM’s argument at trial about implied primary assumption of the risk. And the only specific acts that Moody claimed constituted negligence in the comparative fault verdict director Moody offered at trial did not include the group trainer’s failure to review the prior assessment. We will not consider this theory of liability for overcoming the implied primary assumption of the risk doctrine because it is based on a different act of negligence than those Moody relied on at trial. See generally Wright v. Interco, Inc., 567 S.W.2d 149, 151-52 (Mo. App. 1978) (declining to consider theory raised on appeal that defendant was negligent in allowing a certain dangerous condition because, although there was evidence at trial about that condition, the plaintiff had not pled or raised that as the basis for liability in the trial court, proceeding instead on a theory of liability based on a different dangerous condition). Likewise, we will not address Moody’s argument that all of the group trainer’s conduct was reckless, which is also a theory of liability she never advanced in the trial court.

6 time with undivided attention from the trainer—would fundamentally alter the nature of this

activity.

In any event, to the extent there was any increase in the risk of injury because of the failure

to assess or individually supervise Moody, those were risks well known to her at the time she

performed the push press that caused her injury. When a risk associated with an activity is

“perfectly obvious or fully comprehended,” the plaintiff has consented to it by participating in that

activity and the defendant has performed its duty to make that activity “as safe as [it] appear[s] to

be.” Munoz, 670 S.W.3d at 247 (internal quotation marks and citation omitted). In Munoz, for

example, the plaintiff was injured at Fright Fest—a “haunted” event at an amusement park—while

running away from one of the actors who jumped in front of her to scare her. Id. at 241-42. On

appeal, this Court held that the risk of injury from falling while running in “fright” from an actor

was inherent to Fright Fest and was a risk the plaintiff had knowingly and voluntarily accepted.

Id. at 244. This Court also rejected the plaintiff’s claim that the inherent risk of injury had been

increased because the actor chased after her in violation of the amusement park’s policy. Id. at

246-47. Running from the actors, whether or not she had been chased by them, was the specific

risk that injured the plaintiff—a risk she fully understood before she attended the event and one

that she had witnessed for hours before she was injured. Id. at 241-42, 247. Because the risk was

“perfectly obvious” to the plaintiff, the implied primary assumption of the risk doctrine completely

barred her negligence claim against the amusement park. Id. at 247, 249.

In Payne, this Court reached a different result because the plaintiff was unaware of the

specific risk that caused his injury and that risk was not inherent to the activity. 543 S.W.3d at

128-29. In that case, the plaintiff was injured when he fell out of a “human gyroscope ride”

because he was not properly secured into it by two untrained bystanders. Id. at 116. On appeal,

7 this Court held that while other risks (such as nausea or dizziness) may be inherent in the ride,

falling out of the ride because one is not properly secured is not. Id. at 128-29. The Payne Court

concluded that, because the plaintiff testified that he did not know the people helping him were

mere bystanders and instead believed they were trained and qualified to operate the ride, he had

not knowingly and voluntarily assumed that risk. Id. at 116, 130.

Here, by the time Moody was injured, she had already attended 24 of the hour-long classes,

during which she witnessed firsthand the level of supervision the group trainer provided. It was

perfectly obvious—and Moody fully comprehended—that the group trainer would not be

supervising each and every repetition of exercises that Moody performed, including the push press

exercise he instructed her to perform on the day in question. Moody was also well aware that the

group trainer had not conducted an initial assessment of her and had not specifically assessed her

ability to do the push press. She knew by that point that his information about anything specific

to her was limited because of the group setting. Moody voluntarily decided to try a push press for

the first time, fully comprehending not only the inherent risk of injury from engaging in that

activity, but also the group trainer’s lack of assessment of her and the level of supervision he would

provide while she performed it. Even after the first set of repetitions at 65 pounds, Moody wanted

to try the push press at the heavier weight, again fully comprehending the inherent risk of injury

from trying to lift too much weight and the fact that the group trainer had not assessed or supervised

her performance of the initial set. And, then, after her first two repetitions of the 85-pound set—

which she again performed without assessment or supervision—Moody attempted the third

repetition and was injured.

Even viewed favorably to Moody, the evidence in this case demonstrates that the risk of

being injured while performing the 85-pound push press in a group class without one-on-one

8 supervision was inherent and known to Moody. To the extent the lack of an initial assessment

increased that risk, that too was a risk of which Moody was aware and that she accepted when she

voluntarily performed the exercise that caused her injury. Thus, her claim against DFM for

negligence is barred by the doctrine of implied primary assumption of the risk. Point I is granted.

Because this point is dispositive, we deny Points II through IV as moot.

Conclusion

For the foregoing reasons, the judgment is reversed. Pursuant to Rule 84.14 (2023), we

enter judgment in favor of DFM.

_______________________________ MICHAEL E. GARDNER, Judge

Kurt S. Odenwald, P.J., concurs. Renée D. Hardin-Tammons, J., concurs.