A Supreme Court, Nassau County justice in New York granted summary judgment to a Long Island health and fitness club in a case where the plaintiff sued the fitness club after he was injured during a supervised personal training session by one of the club’s certified personal trainers.
The court ultimately determined that the plaintiff, who signed a release of liability, was enforceable. The court also held that the plaintiff assumed the risks of injury by voluntarily participating in personal training sessions involving weight training.
Prior to the accident on July 8, 2004, the plaintiff, a seasoned high school athlete, contracted for personal training sessions pursuant to a written contract between the plaintiff and plaintiff’s mother and the defendant fitness club, Sportime. A release of liability clause is included in the written contract, which releases the fitness club and its employees from any and all responsibilities or liability from injuries or damages resulting from the member’s participation in any activities or use of equipment in sports activities at the club. The contract also states that by signing the agreement, the contracting member understands and is aware that “strength, flexibility and aerobic exercise, including the use of equipment, is a potentially hazardous activity” and that sport and fitness activities involve a risk of injury and the member is voluntarily participating in these activities with knowledge of the dangers involved. The contract was signed by the plaintiff, plaintiff’s mother and by a representative of the fitness club.
During a personal training session with a certified personal trainer, plaintiff performed multi-directional lunges and allegedly sustained personal injuries. Thereafter, plaintiff commenced a lawsuit against the fitness club and its employees, alleging they “failed to properly supervise, train, instruct, observe, demonstrate, or otherwise provide training” to the plaintiff. Additionally, the plaintiff alleged that the fitness club was negligent, careless and reckless in failing to properly screen its personal trainer, investigate qualifications of, train, supervise, guide, and direct the personal trainer and that the fitness club was negligent in permitting the employee to work as a personal trainer at the fitness club.
The fitness club moved for summary judgment, arguing primarily that the plaintiff and his mother signed a release of liability which released the fitness club and its employees from any and all responsibilities on liability from injuries resulting from plaintiff’s participation in any activities at the fitness club’s facility. Furthermore, the fitness club contended that the release was not void against public policy because the plaintiff was at the fitness center for instructional purposes and not recreational purposes as his injury occurred during a weight training session with a personal trainer employed by the gym. See generally, NY CLS Gen. Oblig. Law § 5-326; see also Evans v. Pikeway, Inc., 7 Misc. 3d 348, 2004 NY Slip Op 24556 (Sup. Ct., Nassau County 2004) (Summary judgment was granted to the defendants because the waiver was valid and enforceable and Gen. Oblig. Law § 5-326 was inapplicable).
The fitness club further argued that plaintiff assumed a known and obvious risk, negating any duty of care owed to plaintiff. To support its defense of assumption of risk, the fitness club relied upon the plaintiff’s testimony that plaintiff had previous experience with weight training and that plaintiff had performed multi-directional lunges in at least one prior personal training session. The fitness club contended that the plaintiff expressly assumed the risks of injury because the risks were delineated in the contract signed by the plaintiff.
In opposition, plaintiff relied upon the affidavit and report of a purported certified personal training expert, who opined that the fitness club’s personal trainer’s negligence in supervising, instructing and training the plaintiff caused the plaintiff’s injury. Specifically, the certified personal trainer claimed that the choice of exercise and the manner in which it was performed caused the plaintiff’s injury. Plaintiff also alleged that a question of fact existed as to whether he understood the release of liability at the time he signed the contract and whether he was participating in an inherently dangerous activity.
The court determined that the waiver was enforceable because of the plain language of the exculpatory and release language of the waiver, the nature of the weight training, the fact that the plaintiff voluntarily chose to engage in personal training sessions and the fact that plaintiff and plaintiff’s mother signed the waiver. The risks associated with weight training were clearly delineated on the waiver according to the court.
The court also determined that the plaintiff assumed the risks of injury associated with weight training because “[b]y engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the activity and generally flow from such participation.” The court gave little credence to the affidavit of plaintiff’s certified personal trainer because the allegations of the expert were deemed conclusory, unsupported by the record, lacked foundation and were insufficient to raise a triable issue of fact. See Furey v. Kraff, 27 AD3d 416 (2d Dep’t 2006). Furthermore, the court pointed out that the plaintiff’s certified personal trainer failed to physically examine the plaintiff, yet he opined on the plaintiff’s physical deformities based upon the fitness club’s initial written evaluation of plaintiff prior to the commencement of the personal training sessions.
Koudellou v. Island Tennis, L.P.; Supreme Court, Nassau County; Index No. 4249/2005; 3/19/07
Attorneys of Record: (for plaintiff) Charles E. Wisell, Esq. (for defendant) Carla Varriale, Esq. and Gregg Scharaga, Esq. Havkins Rosenfeld Ritzert & Varriale, LLP.
