Palmer v. Lakeside Wellness Ctr.

§ 44-2828 of the NHMLA was applicable to this case and
subject to tolling under § 25-213 for a mental disorder and that
there were genuine issues of material fact regarding whether
and on what dates the action was tolled. The Court of Appeals
correctly reversed the summary judgment entered in favor of
the doctors and remanded the cause for further proceedings.
A ffirmed.
Wright and C onnolly, JJ., not participating.
A pril pAlmer , AppellAnt, v. lAkeside Wellness C enter ,
doing business As A legent heAlth , And
preCor , inC., Appellees.
798 N.W.2d 845
Filed June 24, 2011. 	No. S-10-974.
1. Summary Judgment: Appeal and Error. An appellate court will affirm a lower
court’s granting of summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts or as to the ultimate
inferences that may be drawn from those facts and that the moving party is
entitled to judgment as a matter of law.
2. ____: ____. In reviewing a summary judgment, the court views the evidence in
the light most favorable to the party against whom the judgment was granted,
and gives that party the benefit of all reasonable inferences deducible from
the evidence.
3. Contracts: Parties: Intent. In order for those not named as parties to recover
under a contract as third-party beneficiaries, it must appear by express stipulation
or by reasonable intendment that the rights and interest of such unnamed parties
were contemplated and that provision was being made for them.
4. Contracts: Parties. The right of a third party benefited by a contract to sue must
affirmatively appear from the language of the instrument when properly inter-
preted or construed.
5. Negligence: Words and Phrases. Gross negligence is great or excessive neg-
ligence, which indicates the absence of even slight care in the performance of
a duty.
6. Negligence. Whether gross negligence exists must be ascertained from the facts
and circumstances of each particular case and not from any fixed definition
or rule.
7. Negligence: Summary Judgment. The issue of gross negligence is susceptible to
resolution in a motion for summary judgment.
Appeal from the District Court for Douglas County: Joseph
s. troiA, Judge. Affirmed.
780 	281 NebrASkA reporTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:45 AM CST

Heather Voegele-Andersen and brenda k. George, of koley
Jessen, p.C., L.L.o., for appellant.
David L. Welch and Ashley e. Dieckman, of pansing, Hogan,
ernst & bachman, L.L.p., for appellee Lakeside Wellness
Center.
Albert M. engles and Cory J. kerger, of engles, ketcham,
olson & keith, p.C., for appellee precor, Inc.
heAviCAn, 	C.J., 	C onnolly, 	gerrArd, 	stephAn, 	and
mCC ormACk, JJ.
heAviCAn, C.J.
INTroDUCTIoN
The appellant, April palmer, was injured while on a tread-
mill at Lakeside Wellness Center (Lakeside). The district
court granted summary judgment in favor of Lakeside, doing
business as Alegent Health, and precor, Inc. palmer appeals.
We affirm.
FACTUAL bACkGroUND
Palmer’s Accident.
palmer and her husband joined Lakeside in November 2006.
The accident occurred several months later, on March 7, 2007.
on that date, palmer approached the treadmill in question to
begin her workout. Unaware that the treadmill belt was run-
ning, palmer stepped onto the treadmill from the back and
was thrown off the belt and into an elliptical training machine
located behind her. During her deposition, palmer stated that
she looked at the treadmill’s control panel before getting on,
but did not look at the belt of the treadmill. palmer indicated
that had she looked at the belt, she probably would have been
able to see that it was operating, but that since she assumed
the treadmill was off, she did not look further. According to
palmer, she thought the area was poorly lit, though she had
never complained about it to any Lakeside staff members. And
palmer indicated that the facility was loud and that she was
unable to hear whether the machine was operating.
This treadmill was located in a row of treadmills, and the
treadmills to the right and left of the machine in question were
pALMer v. LAkeSIDe WeLLNeSS CTr. 	781
Cite as 281 Neb. 780

being used at the time of the accident. In palmer’s husband’s
deposition, he testified that the woman on a neighboring tread-
mill told him she had been on that treadmill briefly before
switching to the neighboring machine and had mistakenly
thought she had turned it off.
Palmer’s Familiarity With Treadmills.
During her deposition, palmer was asked about her exercise
history and her familiarity with treadmills. palmer testified that
she and her husband had been members of other gyms prior to
joining Lakeside. palmer testified that she received instruction
from a trainer after joining Lakeside, though she stated that she
did not need specific instruction on how to operate a treadmill.
According to palmer’s testimony, she had been using treadmills
for approximately 21 years. At the time of the accident, palmer
had been using the Lakeside facility at least 5 times a week
and had used that actual treadmill 10 to 15 times total prior to
the accident. palmer also testified that she had a treadmill in
her home.
Palmer’s Membership Agreement and
Health History Questionnaire.
At the time palmer and her husband became members at
Lakeside, palmer filled out and signed a membership agree-
ment and a health history questionnaire. The membership
agreement provided:
WAIVer AND reLeASe—You acknowledge that your
attendance or use of [Lakeside] including without limita-
tion to your participation in any of [Lakeside’s] programs
or activities and your use of [Lakeside’s] equipment and
facilities, and transportation provided by [Lakeside] could
cause injury to you. In consideration of your membership
in [Lakeside], you hereby assume all risks of injury which
may result from or arise out of your attendance at or use
of [Lakeside] or its equipment, activities, facilities, or
transportation; and you agree, on behalf of yourself and
your heirs, executors, administrators, and assigns to fully
and forever release and discharge [Lakeside] and affiliates
and their respective officers, directors, employees, agents,
782 	281 NebrASkA reporTS

successors and assigns, and each of them (collectively the
“releasees”) from any and all claims, damages, rights of
action or causes of action, present or future, known or
unknown, anticipated or unanticipated, resulting from or
arising out of your attendance at or use of [Lakeside] or its
equipment, activities, facilities or transportation, includ-
ing without limitation any claims, damages, demands,
rights of action or causes of action resulting from or aris-
ing out of the negligence of the releasees. Further, you
hereby agree to waive any and all such claims, damages,
demands, rights of action or causes of action. Further you
hereby agree to release and discharge the releasees from
any and all liability for any loss or theft of, or damage to,
personal property. You acknowledge that you have care-
fully read this waiver and release and fully understand
that it is a waiver and release of liability.
The health history questionnaire signed by palmer stated in
relevant part as follows:
1. In consideration of being allowed to participate in
the activities and programs of [Lakeside] and to use its
facilities, equipment and machinery in addition to the
payment of any fee or charge, I do hereby waive, release
and forever discharge [Lakeside] and its directors, offi-
cers, agents, employees, representatives, successors and
assigns, administrators, executors and all other [sic] from
any and all responsibilities or liability from injuries or
damages resulting from my participation in any activi-
ties or my use of equipment or machinery in the above
mentioned activities. I do also hereby release all of those
mentioned and any others acting upon their behalf from
any responsibility or liability for any injury or damage
to myself, including those caused by the negligent act or
omission of any way arising out of or connected with my
participation in any activities of [Lakeside] or the use of
any equipment at [Lakeside]. . . .
2. I understand and am aware that strength, flexibility
and aerobic exercise, including the use of equipment are
a potentially hazardous activity. I also understand that fit-
ness activities involve the risk of injury and even death,
pALMer v. LAkeSIDe WeLLNeSS CTr. 	783
Cite as 281 Neb. 780

and that I am voluntarily participating in these activities
and using equipment and machinery with knowledge of
the dangers involved. I hereby agree to expressly assume
and accept any and all risks of injury or death. . . .
palmer sued Lakeside and precor for her injuries, which
generally consisted of an injured hand and chest. both Lakeside
and precor filed motions for summary judgment, which were
granted. palmer appeals.
ASSIGNMeNTS oF error
palmer assigns that the district court erred in (1) granting
summary judgment in favor of Lakeside and precor; (2) hold-
ing that the waiver and release contained in the membership
agreement and health history questionnaire signed by palmer
were clear, understandable, and unambiguous; and (3) holding
that palmer assumed the risk of using the treadmill.
STANDArD oF reVIeW
[1] An appellate court will affirm a lower court’s granting
of summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from those
facts and that the moving party is entitled to judgment as a
matter of law.1
[2] In reviewing a summary judgment, the court views the
evidence in the light most favorable to the party against whom
the judgment was granted, and gives that party the benefit of
all reasonable inferences deducible from the evidence.2
ANALYSIS
Waiver and Release.
palmer first argues that the district court erred in finding that
the waiver and release contained in the membership agreement
and health history questionnaire she completed and signed when
joining Lakeside were clear, understandable, and unambiguous.
We read palmer’s argument as contending that the waivers,
while perhaps applicable to instances of ordinary negligence,
1 Wilson v. Fieldgrove, 280 Neb. 548, 787 N.W.2d 707 (2010).
2 Id.
784 	281 NebrASkA reporTS

could not operate to relieve Lakeside or precor from gross neg-
ligence or willful and wanton misconduct. We further under-
stand palmer to argue that both Lakeside and precor committed
gross negligence or willful and wanton misconduct—precor
by delivering a treadmill without proper safety features, and
Lakeside by not providing adequate space or lighting around
the treadmill and by modifying the treadmill’s belt such that
the treadmill became unsafe.
[3,4] before reaching the merits of palmer’s argument, we
note that contrary to precor’s argument, precor is not protected
from liability as a result of the waivers signed by palmer.
precor contends in its brief that it is a third-party beneficiary
of these waivers. This court recently addressed a similar issue
in Podraza v. New Century Physicians of Neb.3 In Podraza, we
noted that we have traditionally strictly construed who has the
right to enforce a contract as a third-party beneficiary.
In order for those not named as parties to recover under
a contract as third-party beneficiaries, it must appear by
express stipulation or by reasonable intendment that the
rights and interest of such unnamed parties were con-
templated and that provision was being made for them.
The right of a third party benefited by a contract to sue
thereon must affirmatively appear from the language of
the instrument when properly interpreted or construed.
Authorities are in accord that one suing as a third-party
beneficiary has the burden of showing that the provision
was for his or her direct benefit. Unless one can sustain
this burden, a purported third-party beneficiary will be
deemed merely incidentally benefited and will not be per-
mitted to recover on or enforce the agreement.4
A review of the record shows that precor was not explicitly
mentioned in the language of the waiver. Nor is there any other
evidence that precor was an intended third-party beneficiary.
precor has the burden to show its status as a third-party bene-
ficiary, and it has failed to meet that burden. As such, precor
3 Podraza v. New Century Physicians of Neb., 280 Neb. 678, 789 N.W.2d
260 (2010).
4 Id. at 686, 789 N.W.2d at 267.
pALMer v. LAkeSIDe WeLLNeSS CTr. 	785
Cite as 281 Neb. 780

is not shielded from liability as a result of the waivers signed
by palmer.
Lakeside’s Gross Negligence or
Willful and Wanton Conduct.
At oral argument, palmer conceded that by virtue of these
waivers, Lakeside was not liable to palmer for damages caused
by ordinary negligence. but, as noted above, palmer contends
that Lakeside is nevertheless liable, because its actions were
grossly negligent or were willful and wanton.
Having examined the record in this case, we find that as
a matter of law, palmer’s allegations against Lakeside do not
rise to the level of gross negligence. palmer alleges that the
Lakeside facility had inadequate lighting and inadequate spac-
ing between equipment and that Lakeside’s employees modi-
fied the treadmill in question by installing a treadmill belt that
did not contain markings.
[5-7] Gross negligence is great or excessive negligence,
which indicates the absence of even slight care in the perform-
ance of a duty.5 Whether gross negligence exists must be ascer-
tained from the facts and circumstances of each particular case
and not from any fixed definition or rule.6 The issue of gross
negligence is susceptible to resolution in a motion for sum-
mary judgment.7 We simply cannot conclude that the allega-
tions against Lakeside—inadequate lighting and spacing and
the installation of a new treadmill belt—rise to such a level.
We therefore conclude that as a matter of law, any negligence
by Lakeside was not gross negligence or willful or wanton
conduct. As such, the district court did not err in granting
Lakeside’s motion for summary judgment.
Precor’s Negligence.
We next turn to the question of whether the district court
erred in granting summary judgment in favor of precor. because
we concluded above that the waiver signed by palmer did not
5 Bennett v. Labenz, 265 Neb. 750, 659 N.W.2d 339 (2003).
6 Id.
7 Id.
786 	281 NebrASkA reporTS

act to relieve precor from liability, we address whether there
was a genuine issue of material fact on the issue of whether
precor breached any duty it had to palmer.
In arguing that precor was liable, palmer alleges that precor
breached its duty by not equipping the treadmill with (1) a
safety feature that would prevent the treadmill from operating
when no one was on it and (2) handrails extending down the
sides toward the back of the treadmill. palmer originally argued
that precor was also liable because the belt on its treadmill
failed to contain adequate markings, but it is this court’s under-
standing that palmer no longer makes such allegations with
regard to precor because the belt on the treadmill at the time
of the incident was not original to the treadmill and had been
installed by Lakeside.
In response to palmer’s allegations, precor introduced evi-
dence in the form of an affidavit from its director of prod-
uct development, Greg May. May averred that at the time of
manufacture and delivery, the treadmill met or exceeded the
voluntary guidelines set by the American Society for Testing
and Materials in that group’s international standard specifica-
tions for motorized treadmills in all ways, including handrails.
Though there was no specific feature on this treadmill designed
to stop the treadmill from running when no one was operating
it, the machine was manufactured with a clip to be attached to
the user’s clothing. The manual for this treadmill noted that
“by taking this precaution, a tug on the safety switch cord trips
the safety switch and slows the running speed to a safe stop.”
May also averred that the treadmill in question left precor’s
control on July 29, 1999, or over 7 years prior to the date of
the incident.
In 	addition 	to 	May’s 	affidavit, 	precor 	also 	introduced
photographs of the treadmill at issue, which photographs
showed that the treadmill did have front handrails, though not
side handrails.
In an attempt to rebut May’s affidavit and show a genuine
issue of material fact, palmer introduced the affidavit of a fit-
ness consultant. That affidavit noted in part that
based on [the consultant’s] experience, in order for tread-
mills to meet appropriate safety standards from the late
pALMer v. LAkeSIDe WeLLNeSS CTr. 	787
Cite as 281 Neb. 780

1990s forward, treadmills should contain adequate safety
features, 	emergency/safety 	stop 	mechanisms, 	warning
labels, and markings on a treadmill belt. A treadmill
should contain a safety stop mechanism such that the
treadmill will turn off if no one is currently on the
treadmill, adequate handrails extending towards the back
of the treadmill and warning labels at the rear of the
treadmill.
even after drawing all reasonable inferences in favor of
palmer, we conclude that there is no genuine issue of material
fact as to precor’s alleged breach of duty. While the fitness
consultant’s affidavit indicates that treadmills “should” con-
tain various safety features, he does not speak in absolutes
and does not refer specifically to this treadmill. on the other
hand, May’s affidavit references the treadmill at issue in this
case and details the safety features this treadmill possessed,
as well as precor’s compliance with all applicable, though
voluntary, safety standards when manufacturing the tread-
mill. because the record affirmatively shows that precor did
not breach any duty it owed to palmer, we conclude that the
district court did not err in granting precor’s motion for sum-
mary judgment.
Assumption of Risk.
palmer also argues that the district court erred in finding that
she assumed the risk of injury when she used the treadmill.
because we conclude that the district court did not err in grant-
ing Lakeside’s and precor’s motions for summary judgment for
the foregoing reasons, we need not address palmer’s assign-
ment of error regarding the assumption of the risk.
CoNCLUSIoN
The district court’s order granting summary judgment in
favor of Lakeside and precor is affirmed.
A ffirmed.
Wright and miller-lermAn, JJ., not participating.
788 	281 NebrASkA reporTS