A New York State appeals court has affirmed the ruling of a lower court, which had granted a gymnastic facility’s motion for summary judgment, dismissing the negligence claim of a gymnast.
The case arose when the infant plaintiff, a then 10-year-old girl, was allegedly injured while performing her floor exercise routine as part of the Big Apple Classic Gymnastics Competition held at the Brentwood South Middle School in December of 2002. The infant plaintiff claimed that at the end of her routine, while attempting a roundoff back handspring, her foot landed in a “hole” in the tumbling floor, thereby causing her to sustain a right ankle sprain and rendering her unable to complete the remainder of that routine.
New Image Gymnastics Academy, Inc. (New Image), the gymnastics facility which sponsored the competition, which was represented by HRRV, moved for summary judgment based on two grounds. First, that the plaintiffs were unable to establish the existence of a defect (i.e. a “hole”) in the floor stratum and that the defendants had notice of same. Over 80 gymnasts had competed on the floor prior to the infant plaintiff without any problems. The plaintiffs argued that the defendants had actual notice of the alleged defect because agents of New Image constructed the subject flooring under the supervision of a representative of co-defendant, Deary’s Gymnastics Supply, Inc. (Deary’s), and that they failed to follow proper procedure in its assembly. Further, they argued that both defendants had a duty to inspect all of the equipment throughout the duration of the competition. Testimony submitted on behalf of the defendants reflected that the floor had been inspected by Deary’s representative and by Robin Thomas of New Image (who was serving as the meet director) immediately following its construction, at the start of each session of the gymnastics meet and toward the conclusion of the competition.
Plaintiffs, in opposition to the summary judgment motions, submitted the affidavit of a purported expert in the field of physical education and gymnastics. This expert affidavit supported the plaintiffs’ allegations and addressed the shifting and movement of layers of the floor strata throughout a competition such as the one in which the infant plaintiff was participating. However, this expert was not disclosed to the defendants at any time during the discovery phase of this action. In further support of its motion, New Image addressed the plaintiffs’ violation of New York Civil Practice Law and Rules section 3101(d) stating that affidavits of witnesses not previously disclosed should be disregarded in deciding a summary judgment motion.
Justice Doyle, in his decision, indicated that he refused to entertain the plaintiffs’ argument (which was primarily based on this expert’s affidavit) based on their blatant disregard of the CPLR.
New Image further argued that, despite her young age, based on the infant plaintiff’s years of experience as a competitive gymnast, she assumed the risk of injury. To support this defense, New Image relied upon the infant plaintiff’s testimony that she had been competing in similar gymnastic competitions for three years prior to her alleged accident. In addition, the infant plaintiff described what the floor exercised routine entailed (i.e. tumbling, jumping and hurling one’s body through the air to land on the tumbling surface), thereby acknowledging that she was aware of the risks of such an activity. She admitted that she did not inspect the floor strata prior to her routine and that she did not inform anyone from either New Image or Deary’s about any problems with the floor.
Judge Doyle found that the infant plaintiff, by choosing to participate in competitive gymnastics assumed the risks inherent in the sport. Therefore, the risks she consented to included those associated with performing on the constructed floor’s surface, which included the condition of the floor exercise strata prior to her use. The infant plaintiff admitted that she was aware of the dangers attendant in participating in such a competition before electing to participate in the subject event. New Image was found to have discharged its duty by making the floor exercise strata as safe as it appeared to be.
Steven H. Rosenfeld represented New Image Gymnastics Academy, Inc.
Pantaleo v. New Image Gymnastics Academy, Inc., et al.; Supreme Court of the State of New York, Appellate Division, Second Department – Index No. 2007-005177; 12/16/08
