Were Owners Liable for Injury to Exercising Patron?
Nancy Titus allegedly sustained personal injuries while exercising on an elliptical machine in a gym owned by Bernard Bouchardy and Jessica South. Titus alleged that the left arm and foot pedal of the machine detached, “hinged out,” and caused her to be thrusted off the machine. Titus sued Bouchardy and South. The Supreme Court granted Bouchardy/South’s motion to dismiss the complaint. Titus appealed.
Under the common law, a property owner, or a party in possession or control of real property, has a duty to maintain the property in a reasonably safe condition. A landowner has a duty to exercise reasonable care in maintaining its property in a safe condition under all of the circumstances, including the likelihood of injury to others, the seriousness of the potential injuries, the burden of avoiding the risk, and the foreseeability of a potential plaintiff’s presence on the property.
In moving for summary judgment, a defendant has the burden of establishing, prima facie, that it did not create or have actual or constructive notice of the alleged dangerous condition.
A defendant has constructive notice of a dangerous or defective condition when it is visible and apparent, and has existed for a sufficient length of time to afford the defendant a reasonable opportunity to discover and remedy the condition. To meet its initial burden on the issue of lack of constructive notice of an alleged defective condition, a defendant must offer evidence as to when the subject area was last inspected relative to the time when the incident occurred. When a defect is latent and would not be discoverable upon a reasonable inspection, constructive notice may not be imputed. In moving for summary judgment on the ground that a defect was latent, a defendant must establish, prima facie, that the defect was indeed latent—i.e., that it was not visible or apparent and would not have been discoverable upon a reasonable inspection.
The appeals court held that, contrary to Supreme Court’s determination, the owners failed to show, prima facie, that they lacked constructive notice of the alleged defective condition of the elliptical machine, or that such condition was a latent defect that could not have been discovered upon a reasonable inspection. Although they submitted a transcript of deposition testimony from their employee regarding their general practice of testing exercise equipment each weekday, they failed to present any specific evidence as to when the elliptical machine involved was last inspected relative to the incident. Mere reference to general practices, with no evidence regarding any specific inspection of the equipment, was insufficient to establish lack of constructive notice. The owners failed to establish, prima facie, that the alleged dangerous condition of the elliptical machine constituted a latent defect that could not have been discovered upon a reasonable inspection.
Bouchardy/South also failed to make a prima facie showing of entitlement to judgment as a matter of law based upon the doctrine of primary assumption of risk. Under that doctrine, a voluntary participant in a sporting or recreational activity is deemed to consent to those commonly appreciated risks that are inherent in and arise out of the nature of the sport generally and flow from such participation. Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation. That includes risks associated with the construction of the playing surface and any open and obvious condition on it, including less than optimal conditions.
But participants are not deemed to have assumed risks that are concealed or unreasonably increased over and above the usual dangers that are inherent in the sport or recreational activity. The risk of the left arm and foot pedal of an elliptical machine detaching or hinging out was not inherent in the recreational activity of exercising on an elliptical machine in a gym. Rather, the alleged defective condition of the elliptical machine enhanced the risk of injuries.
Accordingly, the Supreme Court should have denied the owners’ motion to dismiss Titus’ complaint.