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STATE OF MICHIGAN 

COURT OF APPEALS 

DAVID ALVAREZ and ELENA ALVAREZ, 

 Plaintiff-Appellants, 

UNPUBLISHED 

November 29, 2016 

v No. 328221 

Oakland Circuit Court 

LTF CLUB OPERATIONS COMPANY INC., 

doing business as LIFETIME FITNESS CENTER, 

LC No. 2014-140282-NO 

 Defendant-Appellee, 

and 

JANE DOE, 

 Defendant. 

DAVID ALVAREZ and ELENA ALVAREZ, 

 Plaintiff-Appellees, 

v No. 328985 

Oakland Circuit Court 

LTF CLUB OPERATIONS COMPANY INC., 

doing business as LIFETIME FITNESS CENTER, 

LC No. 2014-140282-NO 

 Defendant-Appellant, 

and 

JANE DOE, 

 Defendant. 

Before: M. J. KELLY, P.J., and MURRAY and BORRELLO, JJ. 

PER CURIAM. 
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 In Docket No. 328221, plaintiffs, David Alvarez and his wife Elena Alvarez, appeal as of 

right the trial court’s order granting summary disposition in favor of defendant, LTF Club 

Operations Company, Inc., doing business as Lifetime Fitness Center (Lifetime). In Docket No. 

328985, Lifetime appeals as of right the order denying its request for case evaluation sanctions 

and for taxation of costs. For the reasons stated herein, we reverse the trial court’s order granting 

defendant’s motion for summary disposition and remand for further proceedings. 

 This litigation arises from David’s fall from a rock climbing wall at Lifetime’s facility in 

Novi. Plaintiffs were at Lifetime, where they are members, with their minor daughter to allow 

her the opportunity to use the rock climbing wall. Neither the plaintiffs, nor their daughter, had 

previously attempted to use the rock climbing wall. After David signed the requisite forms, 

Karina Montes Agredano, a Lifetime employee, provided David with a harness, he climbed to 

the top of the rock wall, and attempted to lower himself back down via the automatic belay 

system. However, because David’s harness was on backwards and incorrectly hooked to the 

belay system, it broke and he fell to the ground suffering multiple injuries. 

 Plaintiffs argued that, as an employee of Lifetime, Agredano was grossly negligent1

 in 

failing to ascertain whether David had properly attached his harness and the belay system before 

permitting him to climb the rock wall or descend. Defendant filed a motion for summary 

disposition arguing the assumption of risk and waiver of liability provision within the paperwork 

David signed barred plaintiffs’ claims because Agredano’s asserted conduct constituted only 

ordinary negligence and not gross negligence. The trial court granted defendant’s motion for 

summary disposition finding plaintiffs failed to “present any evidence establishing that defendant 

was grossly negligent in failing to take precautions for plaintiff’s safety.” 

 Plaintiffs assert that the trial court erred in dismissing their claim of gross negligence against 

Lifetime, arguing a genuine issue of material fact exists regarding whether Agredano was grossly 

negligent. We agree. 

 The trial court granted summary disposition in accordance with MCR 2.116(C)(7) and (10). 

This Court reviews “de novo a trial court’s ruling on a motion for summary disposition.” In re 

Mardigian Estate, 312 Mich App 553, 557; 879 NW2d 313 (2015). Specifically: 

When considering a motion for summary disposition under MCR 2.116(C)(10), a 

court must view the evidence submitted in the light most favorable to the party 

opposing the motion. Summary disposition is appropriate under MCR 

2.116(C)(10) if there is no genuine issue regarding any material fact and the 

moving party is entitled to judgment as a matter of law. A genuine issue of 

material fact exists when the evidence submitted might permit inferences contrary 

to the facts as asserted by the movant. When entertaining a summary disposition 

motion under Subrule (C)(10), the court must view the evidence in the light most 

favorable to the nonmoving party, draw all reasonable inferences in favor of the 

nonmoving party, and refrain from making credibility determinations or weighing 

 

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 Plaintiffs had signed a waiver of any negligence based liability. 
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the evidence. [Id. at 557-558, quoting Dillard v Schlussel, 308 Mich App 429, 

444-445; 865 NW2d 648 (2014) (quotation marks omitted).] 

In addition: 

In determining whether a party is entitled to judgment as a matter of law pursuant 

to MCR 2.116(C)(7), a court must accept as true a plaintiff’s well-pleaded factual 

allegations, affidavits, or other documentary evidence and construe them in the 

plaintiff’s favor. Where there are no factual disputes and reasonable minds 

cannot differ on the legal effect of the facts, the decision regarding whether a 

plaintiff’s claim is barred by the statute of limitations is a question of law that this 

Court reviews de novo. [Terrace Land Dev Corp v Seeligson & Jordan, 250 

Mich App 452, 455; 647 NW2d 524 (2002) (citation omitted).] 

 To establish a claim for gross negligence, it is incumbent on a plaintiff to demonstrate 

that the defendant acted or 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), aff’d 486 Mich 228 (2010). “The issue of gross 

negligence may be determined by summary disposition only where reasonable minds could not 

differ.” Id. “Simply alleging that an actor could have done more is insufficient under Michigan 

law, because, with the benefit of hindsight, a claim can always be made that extra precautions 

could have influenced the result.” Tarlea v Crabtree, 263 Mich App 80, 90; 687 NW2d 333 

(2004). However, gross negligence will often be exhibited by a “willful disregard of precautions 

or measures to attend to safety[.]” Id. 

 As evidence of Agredano’s gross negligence, plaintiffs offered their deposition 

testimony. In his deposition testimony, David indicated that Agredano provided him with a 

harness and was present as he put it on and prepared to climb the wall: 

Q. And where was [Agredano] when you were placing the harness on 

yourself? 

A. She was in front of us. We were here. She was in front of us. 

Q. So she’s staring directly at your as you’re putting the harness on? 

A. She was, yeah, in front of us. We were here, and she was – I mean, we 

could show the picture if you want. 

Q. But I want to know if she was facing you when you were putting this 

harness on? 

A. Yes. 

* * * 
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Q. How much time elapsed between the time that you had your harness 

on and began climbing from the time when your wife began climbing? 

A. Okay. So they walked over to the wall, and then, as soon as I put on 

my harness, I walked over to the wall adjacent to [Agredano], and I watched my 

wife. She was already up the wall. So whatever time it took for her to get up the 

eight feet, which is probably a couple minutes. I mean, a minute maybe. 

Q. All right. And when you walked over to the wall, was [Agredano] 

standing to your right? 

A. When I walked over to the wall, she was on my right. 

Q. And would you say she was within three or four feet of you? 

A. I could touch her. She was right there. 

Further, David stated that Agredano spoke to him after he had inadvertently placed the harness 

on backwards and directed him to a climbing area, but did not warn him that the red loop on his 

harness should be on his front before he began to climb the wall: 

Q. When were you told to hook into something between your legs?

A. Sure. So I had trouble putting on the harness, right? They walked over 

to the wall. I followed . . . . I was next to – adjacent to [Agredano] . . . . As my 

wife started to come down [the rock wall], I asked – I asked, where should I go 

climb? [Agredano] pointed me over to the other adjacent valet or belay. 

Q. Belay 

A. Belay. Then somewhere between there I asked – or I don’t know if I 

asked, but she said, Hook it between your legs. . . . 

David also stated that Agredano was present in the climbing wall area during the whole incident 

and watched him climb the rock wall while wearing the harness incorrectly: 

Q. And was [Agredano] facing you when you began climbing? 

A. She was facing both of us. 

* * * 

Q. What I want to know is were [sic] you and your wife on the climbing, 

and she was behind you looking at the two of you? 

A. Yeah. She was looking at both of us. 

* * * 
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Q. Was there any point in time, while you were putting on your harness or 

after you put on your harness, where [Agredano] was inside the wall, through this 

door? 

A. No. 

Q. So she was outside in the climbing wall area with you the entire time? 

A. Correct. 

In Elena’s deposition testimony, she testified that Agredano also spoke to David after he reached 

the top of the rock wall, gave him instructions regarding how to descend, and instructed David to 

let go of the wall despite his incorrectly worn harness: 

Q. What happened at that point? 

A. And he said – he asked her twice how to go down. And he asked her 

two times, because I remember, like, why he’s asking her? . . . So then, when he 

asked her two times, she said, just let go, and it will bring you down, the 

automatically thing will bring you down. And she said, I think, you know, push, 

let go. She said, just let go. Just let go. . . . 

 While Agredano claimed that she was not in the room when David incorrectly donned his 

harness and ascended the wall, we must consider the evidence in the light most favorable to 

plaintiffs and accept their testimony as true. Terrace Land Dev Corp, 250 Mich App at 455. 

David and Elena’s deposition testimony was that Agredano was present when David donned his 

harness and ascended the wall, that she had ample opportunity to determine that David had put 

his harness on incorrectly, but that she failed to correct his mistake. Further, plaintiffs testified 

that Agredano watched David climb the wall in an unsafe harness, and directed David to let go of 

the wall to repel back down to the ground despite the red loop on David’s harness indicating that 

his harness was on backwards. Thus, plaintiffs’ testimony allows the inference that Agredano 

did not simply have the ability to do more to assure David’s safe climb. Instead, accepting 

plaintiffs’ testimony as true, evidence exists that Agredano ignored the red loop in David’s 

harness—a clear visible indication2

 that David was climbing the rock wall in an unsafe manner—

and took no steps to avoid the known danger associated with climbing the rock wall with an 

improperly secured harness. Thus, Agredano’s alleged failure to affirmatively instruct David on 

the proper way to wear the harness before he donned it himself, coupled with her alleged 

disregard for the red loop warning sign that David had his harness on backwards, and instructing 

him to push off the wall, could demonstrate to a reasonable juror that she “simply did not care 

about the safety or welfare of” David. Tarlea, 263 Mich App at 90. Accordingly, reasonable 

minds could differ regarding whether Agredano’s conduct constituted gross negligence. Thus, 

the trial court erred in granting defendant’s motion for summary disposition. 

 

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 Agredano testified that if someone was standing below a rock climber, that person would be 

readily able to see if a harness was on backwards. 
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 Because we have concluded that the trial court erred in granting summary disposition to 

defendant, it is unnecessary for us to address in Docket No. 328985 whether the decision to deny 

the case evaluation award would otherwise have been appropriate if the grant of summary 

disposition had been proper. 

 We reverse the order granting defendant’s motion for summary disposition and remand 

for further proceedings consistent with this opinion. We do not retain jurisdiction. 

/s/ Michael J. Kelly 

/s/ Christopher M. Murray 

/s/ Stephen L. Borrello