By Doyice Cotten
Injuries occurring in health clubs in the State of New York can be problematic for club owners since protection against liability for negligence is ineffective in many circumstances – one being in places of amusement or recreation. New York statute G.O.L. Sec. 5-326, passed in 1976, deems waivers void as against public policy under specific circumstances. Specifically, the law provides:
[e]very covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be deemed void as against public policy and wholly unenforceable (emphasis added).
In a recent issue of David Herbert’s The Exercise, Sports and Sports Medicine Standards & Malpractice Reporter, Herbert reports on three New York health club suits. Results of two of these show that all is not lost if a health club is sued for negligence.
In Ingram v. Life Fitness (2016), the plaintiff, a long-time user of treadmills and five days a week user of the health club, was injured (few details were given). Evidence indicated that she had seen how the treadmills worked. The trial court granted summary judgment to the club, stating that “given plaintiff’s familiarity with the use and operation of treadmills, she assumed the obvious and inherent risks attendant to their use.”
In Butt v. Equinox 63rd Street (2016), Butt was injured while working on his bench press with a personal trainer. He had lifted 220 pounds and was injured when he attempted 240 pounds; he had lifted more weight in the past.
Equinox provided evidence that the plaintiff was an experienced weightlifter, that he understood the techniques involved and the inherent risks in the sport, and that he knew and appreciated the 230 to 240 pounds of weight the personal trainer had set up his last lift of the training session. He elected to attempt the bench press with the encouragement of the trainer. The court concluded that the plaintiff appreciated the risks, including the weight to be lifted, and that he voluntarily assumed the common and inherent risks associated with the sport
The appellate court affirmed the summary judgment ruling by the trial court.
However, not all cases end happily for the health club. In Lik v. LA Fitness, Inc. (2016), Lik was injured while playing basketball at defendant’s health club. He alleged that he suffered a knee injury after jumping up during a basketball game and landing on an alleged “defective floor board.”
Defendant argued the plaintiff assumed the inherent risks of the sport. Further, defendant asserted that plaintiff failed to provide evidence that if such defect existed, defendant had the required notice, either actual or constructive, prior to the occurrence. Defendants maintained that regular inspections were done prior to the incident which revealed no such issues regarding the flooring.
Assumption of Risk Issue
In regard to the assumption of risk issue, the court stated that it is fundamental that there is a duty and a breach of that duty. Participants in a sport or recreational activity consent to those “commonly appreciated risks which are inherent in and arise out of the nature of a sport generally and flow from such participation.” Owners continue “to owe a duty to exercise care to make conditions as safe as they appear to be” and if the risks of the activity are fully comprehended or perfectly obvious, the plaintiff has consented to them. The court made it clear that the participant does not assume “concealed or unreasonable risks.”
The court held that in this case the doctrine of primary assumption of risk is not applicable and does not operate to bar plaintiff’s recovery because defective floorboards in the basketball court are not “usual dangers that are inherent in the sport” of basketball.
Regarding the issue of actual and constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell.
Defendant failed to satisfy its initial burden. It only referred to
daily “walk-throughs of the gym” during which he makes visual inspections of the facilities to make sure everything is alright. No records are kept of these inspections. Therefore, defendant offered no testimony from an employee working that day regarding the last time the gymnasium and basketball court were checked prior to plaintiff’s accident.
Subsequently, the court denied the health club’s motion for summary judgment.
Big injury … no waiver … New York State … All is not lost – there is still the old standby of Assumption of Risk. But, from the Lik case, I hope you see the value of regular inspections and the keeping of records of those inspections.
Photo Credit: Thanks to cortneyvmartin at Flickr.