                          STATE OF MICHIGAN

                           COURT OF APPEALS



SAMIR H HAKKANI and DEBORAH                                        UNPUBLISHED
HAKKANI,                                                           March 17, 2016

               Plaintiffs-Appellants,

v                                                                  No. 326320
                                                                   Oakland Circuit Court
POWERHOUSE GYM-ROCHESTER, INC,                                     LC No. 2013-137091-NO

               Defendant-Appellee/Cross-
               Defendant,

and

CYBEX INTERNATIONAL, INC,

               Defendant-Appellee/Cross-Plaintiff.


Before: M. J. KELLY, P.J., and CAVANAGH and SHAPIRO, JJ.

PER CURIAM.

        Plaintiffs Samir and Deborah Hakkani1 appeal from the trial court’s order granting
defendant Powerhouse Gym-Rochester, Incorporated’s (Powerhouse) motion for summary
disposition pursuant to MCR 2.116(C)(7) and MCR 2.116(C)(10). Plaintiffs also appeal from
the trial court’s order granting defendant Cybex International, Incorporated’s (Cybex) later
motion for summary disposition pursuant to MCR 2.116(C)(10). For the reasons stated in this
opinion, we affirm the trial court’s grant of summary disposition in Powerhouse’s favor, but
reverse the trial court’s grant of summary disposition as to Cybex and remand the case for further
proceedings.




1
  For ease of reference, we will refer to Samir and Deborah collectively as “plaintiffs” and will
refer to them individually as “Samir” and “Deborah.”



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                          I. FACTS AND PROCEDURAL HISTORY

        Plaintiffs were members of Powerhouse Gym. On December 20, 2011, they arrived
around 7:00 p.m. As part of their workout, Samir and his workout partner were using a Cybex
plate loaded squat press weight machine. Samir was familiar with the press and had been using
it twice a week for over a year. That night, Samir had been doing his usual routine, working up
from 90 pounds to 1,000 pounds, which was the machine’s maximum weight.

       Samir testified that after completing 12 repetitions at 1,000 pounds, he engaged the
locking mechanism and heard it click. He put his left leg down and grabbed the foot plate to
help him get off the press. His other foot was still on the foot plate at that time. The plate then
crashed down on his right leg causing severe injuries.

        On November 1, 2013, plaintiffs brought suit against Powerhouse only, alleging
negligence and gross negligence in failing to properly anchor and maintain the squat press
machine. At the conclusion of discovery, Powerhouse filed a motion for summary disposition
which was heard on June 25, 2014. The trial court ruled pursuant to MCR 2.116(C)(7) that
plaintiffs’ negligence claim was barred in light of the waiver of negligence claims contained
within the Powerhouse membership renewal signed by Samir.2 As to the gross negligence claim,
the trial court inquired at the hearing whether there was any evidentiary support for such a
theory. Plaintiffs’ counsel referred to the fact that the press was not bolted or otherwise
anchored to the floor of the gym. The court stated: “I thought the claim was not that the
anchoring caused the machine to tip over, but that the latching device malfunctioned” and asked
plaintiffs’ counsel how the alleged failure to anchor could have caused the latching device to
malfunction. Plaintiffs’ counsel essentially conceded that despite nearly seven months of
discovery he could not yet offer any evidence of causation as to the gym, but that he hoped that
additional discovery would provide it. The trial court granted the motion stating that it was
“unpersuaded there’s a need for further discovery on this issue.” The court also suggested that
any claim regarding anchoring of the press would sound in negligence, not gross negligence, and
that any claims about anchoring would be precluded by the waiver of liability in the gym
membership form.

        Shortly before Powerhouse’s motion was heard, plaintiffs filed an amended complaint,
adding Cybex, the manufacturer of the squat press, as a defendant, alleging negligence and
breach of warranty.3 Following the dismissal of Powerhouse, the case continued as between
plaintiffs and Cybex. On November 10, 2014, Cybex filed a motion for summary disposition,
alleging that plaintiffs had failed to establish a question of fact concerning the existence of a
defect in the squat press or that any such defect was the cause in fact of Samir’s injuries.


2
 On appeal, plaintiffs have not challenged the dismissal of the negligence claim and so we do
not address it further.
3
   Cybex filed a cross-claim against Powerhouse; however, that claim was dismissed by
stipulation with prejudice and without costs. Therefore, should this case proceed to trial, neither
party will be able to attribute fault for the accident to Powerhouse.



                                                -2-
Plaintiffs responded that the squat press was defective for a number of reasons, including a
defect in the locking mechanism. In support of their theories, plaintiffs relied on the findings and
opinion of a retained expert in mechanical engineering, Dr. Harold Josephs, as set out in a
deposition and affidavit. Following oral argument, the trial court granted summary disposition in
Cybex’s favor.

                                    II. POWERHOUSE GYM

        Plaintiffs argue that the trial court erred in granting Powerhouse’s motion for summary
disposition with regard to their gross negligence claim. We disagree.

        We review de novo a challenge to a trial court’s decision on a motion for summary
disposition. Latham v Barton Malow Co, 480 Mich 105, 111; 746 NW2d 868 (2008). In
reviewing a motion for summary disposition under MCR 2.116(C)(10), a court considers
“affidavits, pleadings, depositions, admissions, and other documentary evidence submitted by the
parties in the light most favorable to the party opposing the motion.” Greene v A P Prods, Ltd,
475 Mich 502, 507; 717 NW2d 855 (2006) (internal quotations and citations omitted). The
motion “tests the factual support for a claim and should be granted if there is no genuine issue as
to any material fact and the moving party is entitled to judgment as a matter of law.” MEEMIC
Ins Co v DTE Energy Co, 292 Mich App 278, 280; 807 NW2d 407 (2011). A genuine issue of
material fact exists if the record, viewed in a light most favorable to the nonmoving party,
establishes a matter in which reasonable minds could differ. Allison v AEW Capital Mgt, LLP,
481 Mich 419, 425; 751 NW2d 8 (2008).

        In order to establish a claim for gross negligence, a plaintiff must establish that the
defendant engaged in “conduct so reckless as to demonstrate a substantial lack of concern for
whether an injury results.” Xu v Gay, 257 Mich App 263, 269; 668 NW2d 166 (2003) (citations
omitted). “Evidence of ordinary negligence is insufficient to create a material question of fact
regarding the existence of gross negligence.” Woodman v Kera, LLC, 280 Mich App 125, 152;
760 NW2d 641 (2008). “The issue of gross negligence may be determined by summary
disposition only where reasonable minds could not differ.” Id.

        Plaintiffs asserted that Powerhouse was grossly negligent because, contrary to the
warning in the owner’s manual, the squat press was not anchored to the floor and was placed on
an uneven surface. Although these allegations do not appear to have been in dispute, plaintiffs
failed to come forward with any evidence at all showing that the failure to anchor and place the
press on an even surface had a casual role in Samir’s injuries. Samir conceded that the machine
had not tipped over, and, although he testified that the floor was uneven, there was nothing in his
deposition or any other evidence supporting an inference that his injury was caused by
Powerhouse’s decision to place the squat press on an uneven floor. At oral argument, plaintiffs’
counsel asserted only that the summary disposition motion was premature because discovery was
incomplete and referenced pending requests for discovery to Powerhouse. However, discovery




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had closed on May 16, 2014, more than a month earlier and plaintiffs had not filed any motions
to compel discovery.4

        Plaintiffs did not even specify what it anticipated would be revealed by further
discovery.5 Instead, they simply speculated that further depositions could “easily shed light on
the issue of gross negligence” and “foreseeably strengthen” plaintiffs’ case. These assertions are
insufficient to establish that further discovery would “stand a reasonable chance of uncovering
factual support” for plaintiffs’ position. Peterson Novelties, Inc v City of Berkley, 259 Mich App
1, 25; 672 NW2d 351 (2003).

       Accordingly, because plaintiffs did not present facts sufficient to create a question of fact
regarding causation as to Powerhouse, and because plaintiffs did not assert or provide an
evidentiary basis for what they believed they might find to support the existence of a factual
dispute, we conclude that the trial court did not err in granting Powerhouse’s motion for
summary disposition pursuant to MCR 2.116(C)(10).

                                           III. CYBEX

        Plaintiffs next argue that the trial court erred in granting Cybex’s motion for summary
disposition. That motion challenged the adequacy of the evidence as to several elements of the
claim. The trial court did not specify which element or elements it felt were lacking in proof.
On appeal, however, Cybex argues only that plaintiffs failed to create a question of material fact
as to cause in fact, i.e. that any alleged defect in the press played any causative role in the
incident. Plaintiffs have responded by presenting the testimony and affidavit from its expert, Dr.


4
 Plaintiffs had filed a motion to extend discovery largely based upon the fact that Cybex had just
been added to the case and had not yet been subject to discovery. However, that motion had not
yet been heard and plaintiffs did not bring it to the attention of the court at the summary
disposition motion. In any event, the time for discovery between the two original parties had
expired and the court was under no obligation to extend it.
5
  “Generally, a motion for summary disposition is premature if granted before discovery on a
disputed issue is complete.” Peterson Novelties, Inc v City of Berkley, 259 Mich App 1, 24-25;
672 NW2d 351 (2003). However, “the mere fact that the discovery period remains open does
not automatically mean that the trial court’s decision to grant summary disposition was untimely
or otherwise inappropriate.” Marilyn Froling Trust v Bloomfield Hills Country Club, 283 Mich
App 264, 292; 769 NW2d 234 (2009). Summary disposition may “be appropriate if further
discovery does not stand a reasonable chance of uncovering factual support for the opposing
party’s position.” Peterson Novelties, 259 Mich App at 25. A plaintiff must “assert or provide
an evidentiary basis for what he believed he might find to supports the existence of a factual
dispute.” Village of Dimondale v Grable, 240 Mich App 553, 567; 618 NW2d 23 (2000). In
other words, a party opposing “a motion for summary disposition on the ground that discovery is
incomplete . . . must at least assert that a dispute does indeed exist and support that allegation by
some independent evidence.” Bellows v Delaware McDonald’s Corp, 206 Mich App 555, 561;
522 NW2d 707 (1994).



                                                -4-
Josephs, as well as deposition testimony from Samir and lay witnesses. After review of the
record, we agree with plaintiffs that there is a question of material fact as to design defect and
causation and remand for further discovery and proceedings.

        In his affidavit6, Dr. Josephs explained that on December 14, 2014, he examined an
exemplar of the same model of Cybex squat leg press—the Cybex 5235 Plate Loaded Squat
Press—on which Samir was injured. He stated that the initial testing was performed with 90
pounds of weight on the machine and that it was demonstrated that the squat press “could appear
to be placed in a locked position, i.e., proper engagement, but in reality the brake mechanism
was placed in a position of false engagement.” He asserted that during the testing, while the lock
was in a false engagement position, “the foot pad was . . . pushed, causing the false engagement
condition to disengage resulting in the foot pad going down with great speed.” He stated that
during one of the sequences, an inadvertent light nudge caused the locking mechanism to fail and
the foot pad “to suddenly and without warning come crashing down with great speed and force,
similar to the motion testified to by [Samir], when describing his injury causing accident
sequence.” He added that the false engagement was also shown when no weights were placed on
the bar, the brake slipped, and the foot plate crashed down with great speed. Dr. Josephs opined
that “[t]he false engagement condition existing on the CYBEX 5235 Squat Press is a hidden
defect and [sic] and making what appears to be a benign machine into a dangerous
instrumentality.”

         Dr. Josephs opined that the defective locking mechanism proximately caused Samir’s
injury because Samir acted so as to engage the lock and that the lock appeared to engage, but that
in fact it only partially engaged and that as a result, the lock failed, causing the foot plate to crash
down and cause the injury.7 This is supported by other record evidence. Samir testified that he
hooked the weight lock and heard it click, which is the signal that the lock is engaged. He also
testified that he placed his left leg on the floor before the plate came crashing down, which, as
Dr. Josephs explained, would have been impossible if the weight lock was not partially
engaged.8 Samir’s testimony is further supported by the physical position in which he was found


6
  In its brief to this Court, Cybex argued at length that Dr. Josephs’ affidavit should be
disregarded. However, this was not its position at the trial court where it stipulated to the
admission of Dr. Josephs’ affidavit and agreed it should be considered by the trial court for
purposes of the summary disposition motion. “A stipulation entered in open court is generally
binding on the parties.” Ypsilanti Twp v Kircher, 281 Mich App 251, 270; 761 NW2d 761
(2008). “A party may not waive objection to an issue and then argue on appeal that the resultant
action was error.” Bonkowski v Allstate Ins Co, 281 Mich App 154, 168; 761 NW2d 784 (2008).
Moreover, contrary to the position stated in its brief on appeal, during oral argument, counsel for
Cybex agreed that Dr. Josephs’ affidavit was properly considered by the trial court and that it
was part of the relevant record on appeal.
7
 Dr. Josephs’ opinion was based on the available records, including depositions of various gym
employees, patrons, and former patrons.
8
  It appears that to date, Cybex has not presented any evidence to dispute Samir’s testimony
about his actions just before his injury.



                                                  -5-
after the weight plate collapsed and by the fact that his injuries were only to his right, not his left
leg. These facts, viewed in the light most favorable to plaintiffs, are plainly sufficient to create a
question of material fact as to defect and causation.

                                        IV. CONCLUSION

        For the reasons stated in this opinion, we affirm the trial court’s grant of summary
disposition in Powerhouse’s favor, and we reverse the trial court’s grant of summary disposition
in Cybex’s favor. We remand for further proceedings consistent with this opinion. We do not
retain jurisdiction.



                                                               /s/ Michael J. Kelly
                                                               /s/ Mark J. Cavanagh
                                                               /s/ Douglas B. Shapiro




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