A New York state trial court has granted the summary judgment motion of a fitness club company, dismissing the claim of a member, who sued the club after she was injured while working out with a personal trainer. The judge found specifically that the doctrine of assumption of risk applied.
The incident occurred on November 24, 2008, at the New York Sports Club in Manhattan. Plaintiff Gayle Levy was working out with a personal trainer, Franklin Lee, who instructed her to begin an exercise on a bosu ball. Levy successfully completed the exercise a few times, but when she performed the exercise again at Lee’s direction, she lost her balance and fell. As a result, Levy sustained a wrist fracture, which required her to undergo surgery to have a plate and screws inserted into her wrist.
She ultimately sued Town Sports International, Inc. for negligence. Shortly thereafter, TSI moved for summary judgment, claiming that Levy assumed all the risks associated with the workouts she performed while at TSI’s facility. The defendant also argued that Levy’s membership agreement with TSI included a waiver of TSI’s liability for any injury that Levy sustained on its premises, and that TSI had no notice of any defective or dangerous condition.
Levy responded to the motion, arguing that assumption of risk is not applicable here “because Lee increased the amount of risk ordinarily surrounding the activity.” She also argued that “the waiver in her membership agreement is void and unenforceable under New York General Obligations Law § 5-326.”
The court wrote that “the doctrine of assumption of risk is ‘appropriately interposed only to shield a defendant from exposure to liability arising from risks inherent in athletic and recreational activities.’ Trupia v. Lake George Cent. School Dist., 14 N.Y.3d 392, 394, 927 N.E.2d 547, 901 N.Y.S.2d 127 (2010). ‘[B]y freely assuming a known risk, a plaintiff commensurately negates any duty on the part of the defendant to safeguard him or her from the risk.’ Trupia, 14 N.Y.3d at 395 (citing Turcotte v Fell, 68 NY2d 432, 438-39, 502 N.E.2d 964, 510 N.Y.S.2d 49 (1986)).”
Further, “it is appropriate to relieve ‘an owner or operator of a sporting venue from liability for the inherent risks of engaging in a sport . . . when a consenting participant is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks.’ Morgan v. State, 90 N.Y.2d 471, 484, 685 N.E.2d 202, 662 N.Y.S.2d 421 (1997). However, the participant only consents to ‘those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation.’ Morgan, 90 N.Y.2d at 484. ‘Thus, if the risks of an activity are fully comprehended or perfectly obvious, one who participates in the activity is deemed to have consented to the risks. Furthermore, where the risk is open and obvious, the mere fact that a defendant could have provided safer conditions is irrelevant.’ Sajkowski v. YMCA, 269 A.D.2d 105, 106, 702 N.Y.S.2d 66 (1st Dept. 2000).”
Levy’s argument centered on “broadly” defining “the activity she was engaged in as exercise, and that the addition of the bosu ball to her workout routine constitutes an additional hazard that Lee introduced and one that negates her assumption of risk,” according to the court. “This argument is unavailing. Levy was injured while engaged in a particular exercise that utilized the bosu ball. It is undisputed that Levy had used the bosu ball on prior occasions and understood and appreciated the risks associated with exercising with a bosu ball. Thus, Levy assumed the risk of that particular exercise, not only the risk of general exercise at the TSI facility. Levy chose to perform the bosu ball exercise and assume the risk inherently associated with it.
“Levy relies on Mathis v. New York Health Club, 261 A.D.2d 345, 690 N.Y.S.2d 433 (1st Dept. 1999), for the proposition that a health club may be held liable for the actions of a trainer who unreasonably increases the risks of the plaintiff. However, in Mathis, the trainer continued to increase the amount of weight the plaintiff had to lift even after the plaintiff expressed doubts over his ability to do so. Mathis, 261 A.D.2d at 346. In contrast, Levy testified during her examination before trial that: (1) she had used the bosu ball during prior workouts with Lee; (2) while Lee encouraged her, he did not require Levy to continue the bosu ball exercise; (3) she had used the bosu ball earlier that evening; (4) she knew and understood that the bosu ball was used to work on balance; and (5) prior to her fall she completed the same exercise that eventually resulted in her injury. Here, Levy points to no evidence to show that she was pushed to engage in an unknown, additional unreasonable risk while exercising.
“Further, Levy’s claim that Lee was negligent in protecting Levy adequately to prevent injury is insufficient to raise an issue of fact. To support her argument, Levy submits the affidavit of Neil Dougherty, a physical education professor at Rutgers University. Dougherty opines that Lee should have, but did not, stand in a different spot to be in a better position to catch Levy, if needed, and prevent her from being injured. Dougherty bases his opinion solely upon his review of the deposition transcripts and incident report.”
The court was unimpressed with “Dougherty’s two-paragraph opinion. (W)ithout any underlying explanation or analysis, (it) is so speculative as to be without probative value.” The court added that where the risk of performing the activity “is open and obvious, the mere fact that a defendant could have provided safer conditions is irrelevant. Sajkowski v. YMCA, 269 A.D.2d 105, 106, 702 N.Y.S.2d 66 (1st Dept 2000), citing Simoneau v. State of New York, 248 A.D.2d 865, 669 N.Y.S.2d 972 (3rd Dept. 1998).”
In short, “Levy was well aware of the risks of using the bosu ball, as evidenced by her deposition testimony regarding her prior use of the ball, and she assumed the inherent risk of injury with its use,” wrote the court.
Gayle Levy v. Town Sports International, Inc. d/b/a New York Sports Club; S.Ct.N.Y., Civil, N.Y. Co.; 2011 NY Slip Op 32209U, 2011 N.Y. Misc. LEXIS 3985; 8/11/01.
Attorneys of Record: (for plaintiffs) Donte Mills, Esq., Sullivan, Papain, Block, McGrath & Cannavo, P.C., New York, NY. (for defendants) Jacqueline Hattar, Esq., Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, White Plains, NY.
