Nutritionists, physicians, our spouses and significant others encourage us to exercise; however, as the cases below suggest, be careful when you go to the gym.

Gebbia v. Town Sports Intl., LLC., 2017 NY Slip Op 32117(U) (Sup. Ct. N.Y. Co. October 6, 2017)

Defendants moved for summary judgment in an action where plaintiff sued for personal injuries he sustained while he was exercising at a gym operated by Town Sports when the cable failed on a seated long-pull rowing machine, manufactured by Precor.

The Court summarized the applicable law:

In an action for negligence, a plaintiff must prove that the defendant owed him a duty to use reasonable care, that the defendant breached that duty and that the plaintiff’s injuries were caused by such breach…A motion for summary judgment may be properly granted when a defendant demonstrates that it did not create or have actual or constructive notice of an alleged defective condition which allegedly caused plaintiff’s injury[.]

To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendants’ employees to discover and remedy it to correct or warn about its existence[.]

And applied the law to the facts:

In applying these legal principles to the facts in the instant matter, based on the admissible evidence submitted, the court finds that Defendants both demonstrated their entitlement to summary judgment on Plaintiff’s claims for breach of warranty of fitness, strict liability for design and manufacturing defects and negligence for design and manufacturing defects. Precor also established its entitlement to summary judgment for Plaintiff’s claims for negligence and res ipsa loquitur. Plaintiff submitted an expert engineer’s report with his opposition. Plaintiff’s expert raised certain issues of material facts and opined in substance that the cable failed during its regular use, that Precor is liable for its inadequate and non-compliant warnings and Town Sports is liable for its failure to properly inspect the machine and its failure to train and instruct its employees to properly inspect the machine cables. However, Plaintiff failed to raise material issues of fact to preclude summary judgment for most of his claims. The court determines that Plaintiff successfully raised several material issues of fact in dispute to preclude dismissal of his failure to warn claim against both Defendants and his negligence and res ipsa loquitur claims against Town Sports. As such, only these three claims remain.

The evidence demonstrates that Plaintiff was an experienced user of the rowing machine and he routinely checked the cables prior to using the equipment. The cable failed while Plaintiff was using the equipment in a proper manner through no fault of Plaintiff. Plaintiff had never had a similar problem with the machine prior to the accident and he looked at the cable before he started exercising and did not see any fraying or problems. Additionally, there was testimony that the cable cannot be repaired and that there was no regular maintenance that could have prevented the accident. If the cable breaks, a Town Sports’ employee orders a new one and replaces it within ten minutes. However, there is conflicting testimony regarding whether a proper inspection could have prevented this accident. Precor’s employee testified in substance that there was no routine inspection that a Town Sports’ employee could have performed to prevent the accident. However, he also testified that the ball which covered the connection that caused Plaintiff’s accident can be slid down the cable for inspection of the crimp and that their manual and warnings advised users to inspect all cables and connections, including this area. However, a Town Sports’ employee admitted that he did not receive the manual or the routine inspection check list and he did not know that the ball slid down the cable for inspection of the connector underneath the cable. However, he also claimed that their employees inspected the entire cable daily, including the connection which failed in Plaintiff’s accident. Clearly this could not be possible if the employees did not move the ball which covered the connection.

Precor recommends daily, weekly and annual inspections and it provides an inspection checklist and detailed manual. Town Sports did not maintain daily or regular inspection logs and they only provided six pages of maintenance records regarding this machine. However, Town Sports claims that its employees inspected the machine and cable on a daily basis. Town Sports purchases the new cables from Precor and they are sent with the connector parts intact with the ball covering the connector with no assembly required. Precor claims that the cables are supposed to last for one year based on the engineering specifications, however it disclaimed any warranties. The cable prior to the one involved in Plaintiff’s accident broke approximately eight months earlier and the cable installed after Plaintiff’s accident only lasted approximately six to nine months before it broke.

Concluding that:

Plaintiff’s negligence claim is dismissed against Precor because Plaintiff failed to establish that Precor had any duty to inspect, maintain or repair the equipment once it has been sold. Precor established that Town Sports purchased Precor’s rowing machine years prior to Plaintiff’s accident and Precor did not have any obligation to maintain, inspect or repair it on an ongoing basis, nor to keep the gym area or equipment safe, as alleged by Plaintiff.

However, as to Town Sports’ negligence, Plaintiff raised questions of fact, including, but not necessarily limited to, whether Town Sports had constructive notice of the alleged defective condition; whether Town Sports should have known to replace the cable sooner than one year, since the cable before the one involved in Plaintiff’s accident broke eight months earlier and based on the machines heavy usage at its facility; whether Town Sports properly inspected and maintained the cable; whether Town Sports inspected the cable on a daily, weekly and annual basis pursuant to Precor’s recommended schedule; whether it trained and instructed its employees to properly inspect the cable and connection by sliding the ball away from the connector point underneath the ball; and if Town Sports failed to properly inspect the equipment and cable or failed to maintain the equipment, then whether such failure was the proximate cause of Plaintiff’s alleged injuries.

As opined by Plaintiff’s expert, questions of fact remain as to whether both Defendants failed to warn Plaintiff of a dangerous condition of the gym equipment and in particular, the cable connections; whether Precor’s instructions and warnings in its manual and labels were incorrect and insufficient; whether Precor attached an adequate warning label to the equipment and if it was attached, who was responsible for removing it, despite the instructions not to do so; and if Defendants failed to properly warn of the alleged dangerous condition, then whether such failure to warn was the proximate cause of Plaintiff’s alleged injuries.

Also noting that:

Plaintiff failed to demonstrate each element of its breach of a warranty of fitness claim against either Defendant and Precor expressly disclaimed any expressed or implied warranties.

Plaintiff’s claims for strict liability and negligence for design and manufacturing defects only apply to Precor as the manufacturer of the equipment and parts. However, Plaintiff failed to demonstrate each element of these claims, including identifying the specific alleged defect; demonstrating that the machine, cable or its connectors were not reasonably safe for their intended use; that such cable, parts or equipment were defectively designed or manufactured and that they were in a dangerous and hazardous condition at the time they left Precor’s control. Despite Plaintiff’s expert’s contention that there were safer designs available, such statements are insufficient to sustain this claim. Unfortunately, Town Sports did not preserve the broken cable, so no one can inspect or test it. However, such failure to do so does not relieve Plaintiff of its obligation to establish each element of this claim or to raise a material question of fact based on the evidence.

Finally, Plaintiff’s claim for res ipsa loquitur fails against Precor because the cable and equipment were not within Precor’s exclusive control. Town Sports failed to demonstrate its entitlement to summary judgment dismissal of this claim against it as the evidence taken in the light most favorable to Plaintiff indicates that the cable should not have separated from the handle during its intended use but for negligence, the cable and machine was within Town Sports’ exclusive control and there is no evidence that Plaintiff used the machine improperly.

As such, the court grants dismissal of the majority of Plaintiff’s claims as set forth herein and the only remaining claims are Plaintiff’s failure to warn against both Defendants and its negligence and res ipsa loquitur claims against Town Sports. Neither Defendant discussed or demonstrated their entitlement to summary judgment dismissal of any cross-claims against them.

And, as to spoliation, concluding that:

Additionally, the court denies Plaintiff’s cross-motion to strike Town Sports’ pleadings and defenses as spoliation sanctions for Town Sports’ failure to preserve the broken cable. Such sanctions are firmly within the discretion of the court and the court can consider a number of factors, including, but not necessarily limited to, the motive of the spoliator, the prejudice to the victim of the spoliation, the material nature and importance of the evidence, whether such spoliation was in violation of a court order to preserve the evidence and the circumstances surrounding the spoliation.

Here, Town Sports does not know where the cable is or what happened to it, but it appears that a former Town Sports employee installed a new cable and most likely discarded the broken cable during the normal course of its business operations. Plaintiff, who was very experienced with using the equipment and inspecting the cables, inspected the cable immediately after the accident and observed that the cable was not frayed and that it had disconnected from the connector crimp underneath the black ball. Town Sports cooperated with the other parties by permitting them to inspect the equipment, providing them with the replacement part number, making an exemplar cable available to them and providing its work ticket and maintenance logs, although such written notes are sparse at best. Additionally, there is no evidence that Town Sports willfully or maliciously destroyed the evidence and Plaintiff’s written notice for Town Sports to preserve the cable was sent long after the cable was lost. Therefore, the severe remedy of striking Town Sports’ pleading is not appropriate in this matter and the court denies Plaintiff’s cross-motion. Although, the court determines that an adverse inference charge may be appropriate at trial, this court will leave the decision up to the sound discretion of the trial judge.

Colorado v. YMCA of Greater N.Y., 2017 NY Slip Op 30987(U) (Sup. Ct. N.Y. Co. May 10, 2017)

Defendant YMCA moved for summary judgment dismissing Colorado’s complaint based upon injuries sustained when she fell off a treadmill at defendant’s gym.

The Court outlined the facts:

[D]iscovery is complete, including the depositions of Plaintiff, David Luis, a floor trainer and personal trainer for Defendant, and Wai Ping Kau, who works in member services and hospitality for Defendant. The evidence reveals that Plaintiff, a 74-year old woman, joined Defendant’s gym a couple of days before she attempted to use the facility for the first time on October 10, 2013. She had never been a member of a gym and had never used a treadmill before. When she arrived at the facility, the employees at the front desk could not locate her registration, so she was given a pass to enter and use the facility. Plaintiff testified in substance that she was not offered an orientation class or instructions on how to operate the treadmill; she was not familiar with using it; she was unaware of the emergency safety clip; and she did not see or read any signs with warnings or instructions on how to use the treadmill either on the wall or on the treadmill’s body or screen. Plaintiff testified that she stepped onto the treadmill while the screen was lit and she pressed button number 2 because it was supposed to be the slow speed. The treadmill sped up and Plaintiff was thrown off the back of the machine which caused her to suffer severe injuries to her shoulder and other areas.

Summarized defendant’s contentions:

Defendant disputes Plaintiff’s version of the events and argues in substance that Plaintiff assumed the risks inherent in exercising on a treadmill. Additionally, Defendant argues that Plaintiff is responsible for the incident because Plaintiff willfully disregarded the warnings and instructions clearly posted on the wall near the treadmill, on the treadmill machine and on the illuminated screen; Plaintiff failed to avail herself of an orientation which was offered to all new members or first-time users and there was an orientation sign-in sheet kept at the front desk; Plaintiff failed to ask an employee or anyone for help prior to using the machine; and Plaintiff failed to advise any employee that it was her first time using a treadmill or that she was unfamiliar with its operation.

Defendant argues in substance that Plaintiff’s claims are barred by the primary assumption of the risk doctrine because Plaintiff voluntarily consented to such risks inherent in using a treadmill and Defendant is relieved of any legal duty to Plaintiff. Defendant also argues that it is not negligent based on common law negligence principles because there is no evidence that Defendant created or had constructive or actual notice of a defective condition; there is no evidence that the treadmill was defective, inherently dangerous or unsuitable for use; Plaintiff failed to provide an expert report alleging a defective condition; and there is no evidence that Defendant’s actions or inaction caused Plaintiff’s alleged injuries. Additionally, Defendant noted that the treadmill remained in operation without any problems subsequent to Plaintiff’s accident. Finally, Defendant argues that Plaintiff’s preexisting health condition of adrenal insufficiency was the proximate cause of her shoulder injuries.

Defendant relies on the deposition testimony of Plaintiff and others to allege that Plaintiff was being less than truthful during her deposition testimony when she denied pressing a second button on the treadmill, which is contradicted by Plaintiff’s prior statements in her incident report and hospital record. Plaintiff’s incident report revealed that Plaintiff admitted that while she was using the treadmill at speed number 2, she increased the speed by pushing button number 4, and her hospital record indicated that Plaintiff admitted that she pushed the wrong button which caused the treadmill to go faster. Additionally, Plaintiff’s EMS record indicated that Plaintiff told the paramedics that the swelling in her shoulder was due to her history of adrenal insufficiency.

The legal template:

In an action for negligence, a plaintiff must prove that the defendant owned him a duty to use reasonable care, that the defendant breached that duty and that the plaintiff’s injuries were caused by such breach[.]

An owner of an athletic facility is relieved from liability for inherent risks of engaging in a sport or recreational activity under the doctrine of primary assumption of the risk when the consenting participant is aware of the risks, has an appreciation of the nature of the risks, and voluntarily assumes the risks…A voluntary participant “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”…Generally, voluntary participants in sporting or recreational activities are deemed “to have consented, by their participation, to those injury-causing events which are known, apparent, or reasonably foreseeable consequences of the participation,” except for reckless or intentional acts…Courts must consider a plaintiff’s skill and experience when determining whether a plaintiff was aware of the inherent risks[.]

In the context of professional sporting events, when measuring a defendant’s duty to a plaintiff, courts must consider the risks assumed by the plaintiff when plaintiff consented to participate in the activity and how those assumed risks qualified defendant’s duty of care to plaintiff…A defendant’s duty in such situations “is a duty to exercise care to make the conditions as safe as they appear to be. If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty” by making the conditions as safe as they appear to be…Therefore, primary assumption of the risk is not an absolute defense, but a measure of a defendant’s duty of care to plaintiff[.]

Many courts have granted summary judgment dismissal of plaintiff’s claims based on primary assumption of the risk where plaintiffs have been injured while exercising on treadmills[.]

In applying these legal principles to the facts in the instant matter, based on the admissible evidence submitted, the court finds that Plaintiff assumed the risk of injuring herself in the manner in which she did when she voluntarily operated the treadmill without understanding how it worked and without knowing whether she was physically capable of keeping up with the speed she selected. Here, the risks inherent in treadmills were obvious, apparent and reasonably foreseeable consequences of plaintiff’s use of the equipment and there is no evidence that Defendant was negligent in causing or creating conditions which would make such activity more dangerous than usual or that Defendant concealed such danger.

Concluding that:

[D]efendant demonstrated that the risks inherent in Plaintiff’s use of the treadmill were obvious and reasonably foreseeable consequences of Plaintiff’s actions without any negligence by Defendant. Even if Plaintiff did not have any experience in using the treadmill and did not have knowledge of how to operate the equipment, adjust the speed, stop it, or the specific risks associated with its use, such risks were apparent and obvious and Plaintiff should have known by reading the warning signs and instructions. By not asking for help, not reading the instructions and warnings, not having a reasonable understanding of her fitness level and lack of experience in using a treadmill and operating the treadmill by blindly pressing one or two buttons, Plaintiff assumed the risk of injury that was open and obvious and effectively consented to relieving Defendant of basic liability to Plaintiff, except to maintain the facility and equipment as safe as it appears to be. Therefore, the court determines that based on common law negligence principles, Defendant has demonstrated that it was not negligent for Plaintiff’s injuries and Plaintiff assumed the risk inherent in using a treadmill.

Charles v. Lake Park 7600 Jericho Turnpike LLC, 2017 NY Slip Op 31255(U) (Sup. Ct. Suff. Co. May 4, 2017)

Defendants – the operator of a gym and the owner of the adjacent parking lot – moved for summary judgment dismissing the complaint in an action to recover damages allegedly sustained by plaintiff when he tripped and fell during an exercise class at an Equinox Gym located in Syosset.

Supreme Court summarized the deposition testimony:

Plaintiff testified that on the date of the incident, he was participating in a “boot camp” fitness class at Equinox Gym[;] he had been a member of Equinox for the two years preceding the subject incident and went five times per week[;] he enrolled in the subject class four weeks prior to the incident and that it was conducted three times per week[; and] several of the classes were conducted outside of the building in the parking lot area for approximately 20 minutes of the one-hour class. He testified that at the time of the incident, the class was performing drills with a medicine ball[;] the drill entailed throwing, catching and running with the medicine ball[; and] he ran through the lot to retrieve the ball, caught it, turned around and started running back, when his right foot “gave out,” causing him to lose his balance and fall. Plaintiff testified that he remained at the spot where he fell for 20 minutes and was attended to by his instructor, Dana Mancini, and two class members, Domenico Parisi and Nicole Parisi[;] he did not observe anything on the ground and did not know what caused him to trip and fall[; and] after returning to the Equinox gym after his accident and retracing his steps, he believes he tripped on a crack in the asphalt.

Raquel Ribacoff testified that she is a certified group fitness instructor and was teaching the subject class, Equinox Training Camp (ETC)[;] ETC is a six-week program taught three days a week for one hour and that it was for registered participants[; and]  she and Dana Mancini were the instructors and that there were 40 students enrolled in the class. Ribacoff testified that part of the class is taught outside in the parking lot area, and that the members enjoyed going outside, but they were not required to[; and] she offered members the option to stay inside and do the treadmill, among other things, if they did not want to go outside[;] that it is her practice to inspect the parking lot, and that she inspected it two days prior to the incident and did not see any defects on the surface of the parking lot, and it was level[;] she taught various exercise classes in the parking lot since she started working at the gym in 2004, and that she is unaware of any similar incidents and never received any complaints about the parking lot area. Ribacoff testified that on the day of the incident, she observed plaintiff fall to the ground and immediately assisted him[;] she asked him what happened, and he told her he tripped over his feet[;] and she did not observe any cracks or anything irregular in the area where plaintiff fell.

Dana Mancini testified that she and Raquel Ribacoff were instructing the ETC class on the morning of the subject incident, and that she was running in front of plaintiff when she heard him fall[; and] she stopped and assisted him, and that he told her he tripped on his own two feet[;] she observed the subject area and did not see any cracks or other unusual conditions in the parking lot.

Domenico Parisi testified that he was taking the ETC class with plaintiff on the date of the incident, and that the class went outside to conduct drills towards the end of the hour[; and] he did not see plaintiff fall but heard a noise and then observed plaintiff sitting on the ground holding his arm. Parisi testified that he is an EMT and that he assisted plaintiff until the ambulance arrived, accompanied him to the hospital, and stayed with plaintiff for one hour[;] plaintiff did not tell him how he fell nor did he complain about any condition in the parking lot or about the class[; and] the class was frequently taught outside and everyone loved to go outside, including plaintiff.

Kevin Murphy testified that he worked for RXR Property Management as a portfolio manager at the time of the incident[; and] he inspects the subject property two to three times per week and that, if he discovers any issues, he creates a work order in a computer program known as “Angus.” He testified that he also has three employees who inspect the premises on a daily basis, respond to tenant service calls and complaints, and maintain the premises[; and] he searched the Angus program for the period from January 1, 2013 through May 6, 2013, and found no work orders or complaints regarding the subject parking lot.

The applicable law:

To prove a prima facie case of negligence, a plaintiff must demonstrate the existence of a duty, a breach of that duty, and that the breach of such duty was a proximate cause of his or her injuries. Premises liability for an injury caused by a dangerous condition is predicated upon ownership, occupancy, control, or special use. Owners and occupants of stores, office buildings, and other places onto which members of the general public are invited have a nondelegable duty to provide the public with reasonably safe premises[.]

A plaintiff’s inability in a premises liability case to identify the cause of the fall is fatal to the cause of action because a finding that the defendant’s negligence, if any, proximately caused the plaintiff’s injuries would be based on speculation. Therefore, in a trip-and-fall case, a defendant may establish its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff cannot identify the cause of his or her fall[.]

Concluding that:

Here, defendants Lake Park 7600 Jericho Turnpike, LLC, CLK-HP 7600 Jericho Turnpike, LLC, and RXR Realty LLC established a prima facie case of entitlement to summary judgment in their favor by submitting the transcript of plaintiff’s deposition testimony showing he was unable to identify what caused him to fall at the time of the incident. Plaintiff’s testimony that he inspected the subject area two to three months following the incident with an investigator and found a crack in the surface of the parking lacks probative value, as it would be speculative to assume that this alleged condition proximately caused his fall[.]

Having established, prima facie, its entitlement to judgment as a matter of law on the issue of liability by tendering sufficient evidence to eliminate any material issues of fact from the case…defendants shifted the burden to plaintiff to proffer evidence in admissible form raising a triable issue of fact…In opposition to the motion, plaintiff submits his own affidavit and the transcripts of the parties’ deposition testimony. In his affidavit, plaintiff states that his toe caught a raised edge of the asphalt in the parking lot. Plaintiff’s affidavit, which is inconsistent with his deposition testimony and raises a feigned factual issue, is insufficient to show the existence of a triable issue of fact…Accordingly, the motion of defendants Lake Park 7600 Jericho Turnpike, LLC, CLK-HP 7600 Jericho Turnpike, LLC, and RXR Realty LLC for summary judgment in their favor is granted.

And, as to assumption of risk, holding that:

Defendant Equinox Holdings, Inc. also moves for summary judgment dismissing the complaint and cross claims against it on the ground that plaintiff is barred from recovering under the doctrine of primary assumption of risk, as plaintiff assumed the risk of his injuries from voluntarily participating in the ETS class. The defense of assumption of the risk relieves a defendant of legal duty owed to a plaintiff; and being under no duty, a defendant cannot be charged with negligence…”By 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 sport generally and flow from such participation”…Inherent risks are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation…However, in order for the doctrine to apply, participants of the activity must fully comprehend the risks and they must be obvious, as a participant in such an activity is not deemed to have assumed the risks of concealed or unreasonably increased risks…”The primary assumption of risk doctrine also encompasses risks involving less than optimal conditions”…and those risks associated with the construction of the playing surface…Furthermore, open and obvious risks such as the risk of activities played on an irregular surface are activities which an injured plaintiff assumes the risk[.]

Here, Equinox established its prima facie case entitlement to summary judgment under the doctrine of primary assumption of the risk. Plaintiff, an experienced fitness member, who voluntarily participated in the ETC program, assumed a foreseeable risk while running in the parking lot…As plaintiff could not identify a dangerous condition which caused him to fall and injure himself, Equinox has established that it did not unreasonably increase the risk of injury…In opposition to the motion, plaintiff submits his own affidavit and the affidavit of Alphonses Heraghty, a professor, among other things, of physical education at Suffolk Community College. In his affidavit, Mr. Heraghty states that plaintiff “was caused to trip and fall over a height differential” in the surface of the parking lot. In as much as his opinion is based on a fact which is not in evidence, his affidavit is insufficient to raise a triable issue of fact. Accordingly, the motion of defendant Equinox Holdings, Inc. for summary judgment in its favor is granted.

Ficelman v. Equinox Fitness Club, 2017 NY Slip Op 30976(U) (Sup. Ct. N.Y. Co. May 8, 2017)

Plaintiff, who was injured while exercising at the Equinox Gym, moved for summary judgment and defendant cross-moved for the same relief.

Supreme Court summarized the facts:

Plaintiff James Ficelman alleges that he was injured while using a “lat[eral] pull down machine” around 7:30 a.m. on January 6, 2015 at the Equinox Gym on 250 East 54th Street in Manhattan…Plaintiff, who was a member at the Equinox Gym, describes the “lat pull down machine” as having a seat with a knee pad in which he would sit and pull down an overhead bar, which was attached to a cable with weights causing upward resistance.  Plaintiff alleges that he was pulling the bar down towards his body and commencing his second set of ten to twelve repetitions on the machine, when a cable snapped causing the bar to strike his face…Plaintiff states that he had been using the machine with 200 to 220 pounds of resistance when the cable snapped…Plaintiff states that he did not notice anything unusual about the machine before the accident, and that he did not perform an “inspection” of the machine prior to the accident[.]

Plaintiff asserts that he was using the machine properly and that his injuries were caused by the machine malfunctioning, and by no fault of his own…Plaintiff states that, although he did not see what caused his accident, he was told by Branislav Vukojevic — who was a trainer at the gym and attended to Plaintiff’s injuries — that a cable snapped[.]

The gym’s opposition to plaintiff’s motion for summary judgment:

Defendants argue that Plaintiff has failed to establish that Defendants caused or created the allegedly defective condition, or that they had actual or constructive notice of the allegedly defective condition…In addition, Defendants argue that the doctrine of res ipsa loquitur does not apply to the instant case because Defendants did not have exclusive control over the subject machine[.]

Defendants submit an affidavit from the gym’s Assistant General Manager Ronald Cooper [who] states that more than 6,000 individuals use the subject gym per week, and that approximately 200 individuals used the gym prior to Plaintiff’s accident at 7:30 a.m. that morning…Defendants contend that these approximately 200 members all had access to the subject machine, and, as such, Defendants did not have exclusive control over the machine[.]

Mr. Cooper further states that he previously was the maintenance manager at the subject location, “including in January 2015” and that his staff “conducted inspections of the exercise machines, including the lat pulldown machine involved in plaintiff’s accident. These inspections occurred throughout the day, at least once an hour.”…Mr. Cooper states that these inspections “included checking the bolt connecting the cable to the weight stack” and that “[i]f any loose bolt is found during one of the equipment inspections, the staff would either immediately tighten the bolt or take it out of service until it could be tightened.”…Mr. Cooper further states that he personally inspected the subject apparatus following Plaintiff’s accident, and that “[f]rom my inspection, it appeared that while the cable itself was in one piece, the bolt connecting the cable to the weight stack had come loose, causing the cable to separate from the weight stack”[.]

Defendants assert that, prior to the accident, Plaintiff inspected the machine to make sure that the adjustable weights pin was fully pushed in, that the clip attaching the bar to the cable was secured, and that he visually inspected the cable[.]

Defendants argue that because Plaintiff cannot establish any notice to Defendants as to a defective condition, Defendants are entitled to summary judgment and that Plaintiff’s motion for summary judgment should be denied.

The applicable law:

“In premises liability cases alleging an injury caused by a defective condition, the plaintiff must show that the landowner either created the defective condition, or had actual or constructive notice of the defective condition for such a period of time that, in the exercise of reasonable care, it should have corrected.”…”A defendant has constructive notice of a defect when it is visible and apparent, and has existed for a sufficient length of time before the accident that it could have been discovered and corrected.”…On a motion for summary judgment, a landowner defendant is “required to offer some evidence as to when the accident site was last cleaned or inspected” prior to the accident…Such evidence must come from an individual with “personal knowledge” of when the last inspection occurred[.]

On the instant motion and cross-motion, Defendants do not provide any evidence as to when the subject apparatus was last inspected or by whom, but rather assert (by affidavit of Mr. Cooper) that the various exercise machines are inspected “throughout the day, at least once an hour.”… These statements regarding generalized inspection procedures are not enough to establish lack of constructive notice as a matter of law…Further, there is no statement that the machine was in fact inspected on the day of the accident and what, if anything, was found. As such, Defendants’ motion for summary judgment is denied.

And granted plaintiff’s motion for summary judgment:

The owner or possessor of property has a duty to maintain the property in a reasonably safe condition and may be held liable for injuries arising from a dangerous condition on the property if such owner or possessor either created the condition, or had actual or constructive notice of it and a reasonable time within which to remedy it…Plaintiff argues that Defendants breached this duty as a matter of law based on a theory of res ipsa loquitur: i.e. that the manner of his injury — the bolt coming loose — could have only resulted from Defendants’ failure to maintain that portion of the subject apparatus in good condition, especially in light of Defendants’ acknowledgment of hourly inspections of the equipment.

Res ipsa loquitur — which literally translates to “the thing speaks for itself” —” simply recognizes what we know from our everyday experience: that some accidents by their very nature would ordinarily not happen without negligence.”…Res ipsa loquitur does not create a presumption of negligence; rather, it is a rule of circumstantial evidence that allows the jury to infer negligence…”A defendant is free to rebut the inference by presenting different facts or otherwise arguing that the jury should not apply the inference in a particular case.”…Moreover, “[n]otice of a defect is inferred when the doctrine applies and the plaintiff need not offer evidence of actual or constructive notice in order to proceed.”…As such, while there is no evidence of actual or constructive notice to Defendants on this motion, the application of the doctrine infers that Defendants had notice[.]

In order for the doctrine of res ipsa loquitur to apply, Plaintiff must establish that “the event (1) was of a kind that ordinarily does not occur in the absence of someone’s negligence; (2) was caused by an agency or instrumentality within the exclusive control of the defendant; and (3) was not due to any voluntary action or contribution on the part of the plaintiff.”[.]

The Court of Appeals has held that res ipsa loquitur is a viable doctrine for use on a plaintiff’s motion for summary judgment. However, the Court of Appeals has further indicated that “only in the rarest of res ipsa loquitur cases may a plaintiff win summary judgment or a directed verdict. That would happen only when the plaintiff’s circumstantial proof is so convincing and the defendant’s response so weak that the inference of defendant’s negligence is inescapable.”…This is one such case.

To make out a prima facie case for applying the doctrine of res ipsa loquitur, a plaintiff need only show that that “it is more likely than not that defendant caused the accident. Plaintiff need not exclude every other possible cause.”…However, after a plaintiff establishes a prima facie case for summary judgment based on res ipsa loquitur, summary judgment will be denied if the defendants point to a material issue of fact regarding how the accident could have occurred in the absence of their negligence…To establish a material issue of fact, a defendant may show that it is more likely than not that another actor caused the accident. A defendant making such argument must present evidence in support of that theory and cannot merely rely on its own conclusory contention that the accident could have been caused by an anonymous actor[.]

On the instant motion, Defendants do not contest that Plaintiff has established the first and third elements of res ipsa loquitur. Defendants only argue that Plaintiff cannot establish the second element — that the subject machine was within their exclusive control…Defendants contend that because approximately 200 members “used the club” and presumably had access to the machine on the morning of Plaintiff’s accident—not that they used the machine—that Defendants did not have exclusive control of the machine. Defendants argue in sum and substance that any one of the approximately 200 members (excluding Plaintiff) could have loosened the subject bolt after the gym’s inspection of the machine, thereby causing the accident…As such, Defendants argue that the doctrine of res ipsa loquitur does not apply to the instant case[.]

Contrary to Defendants’ argument on the issue of exclusive control, the appropriate line of analysis is whether the mechanism of the accident (the loose bolt) itself was generally handled by gym members, not whether gym members used the apparatus (the lateral pulldown machine) to which the loose bolt was a part…As such, the question here is not whether Defendants had exclusive control over the entire lateral pull down machine, but rather whether Defendants had exclusive control over the subject loose bolt that Defendants concede caused the accident. Such analysis of exclusive control must take into consideration: the nature of the bolt itself; where the bolt was located on the machine; the location of the machine; the individuals who had the opportunity to loosen the bolt; and whether or not a tool was required to loosen the bolt.

Concluding, based upon the undisputed facts, that:

The following facts are undisputed in this action: that the bolt was not an adjustable part of the machine; members were not required to adjust the bolt in their operation of the machine; and members did not have contact with the bolt in their operation of the machine…[Defendants’ counsel stating that he had no knowledge as to whether the subject bolt nut could be manipulated by hand].)

In support of Plaintiff’s motion, Plaintiff submits two photographs showing the subject machine where he was injured…These photographs show that the machine’s cable was attached to an adjustable weight anchor, that could be adjusted to carry as much as 260 pounds of weights…The cable was fastened to the weight anchor by a bolt nut…Given the amount of weight that the cable was expected to support, it is clear that one would need a wrench to loosen and/or tighten the bolt nut connecting the cable to the weight anchor…It is equally clear that detaching the cable from the weight anchor would require multiple rotations of the bolt nut[.]

In his affidavit, Mr. Cooper never stated that he discovered any evidence that would suggest that the bolt had been tampered with or vandalized; neither did he state how he believed it became detached—whether it rotated loose or was stripped. It is not reasonable to conclude that a non-employee member of the gym would happen to have the appropriate wrench, the inclination to loosen the bolt, and be able to inconspicuously do so…Under these circumstances, the Court finds that the subject connecting bolt was within the exclusive control of Defendants, and the Court finds that the evidence submitted by Plaintiff is so convincing as to make out a prima facie case for summary judgment.

Plaintiff having established a prima facie case for summary judgment pursuant to the doctrine of res ipsa loquitur, the burden shifts to Defendants to establish a material question of fact regarding how the accident could have occurred in the absence of their negligence. Defendants’ response that some unknown, gym-member actor could have loosened the subject bolt—without any specific evidence suggesting that this may have actually happened or describing in some detail how it could have occurred—is insufficient and “so weak” that the inference of negligence is inescapable…The affidavit of Mr. Cooper, which states that he inspected the machine after the accident, does not indicate that the subject bolt showed signs of tampering…Mr. Cooper further stated that there had never been any similar incidents with the subject machine before…As such, this Court finds that the instant case is appropriate for summary judgment based on the doctrine of res ipsa loquitur[.]

With the admonition that:

The Court recognizes that the doctrine of res ipsa loquitur is only applied on summary judgment in the rarest of cases. However, given the specific, undisputed facts in the instant case, to deny Plaintiff summary judgment on the remote possibility (without any proof) that there was sabotage by an anonymous member—who managed to bring the necessary tools into the fitness club and managed to surreptitiously sabotage the machine—would effectively abrogate application of the doctrine of res ipsa loquitur on any motion for summary judgment.

In addition, the Court finds that Defendants have failed to put forward a non-negligent explanation for how the accident could have occurred absent their negligence so as to raise a material issue of fact for trial. Further based upon the affidavit of Cooper that the machine was inspected every hour (although at what time prior to the Plaintiff’s use is unknown) and—presumably was inspected at least one time prior to the accident and that the bolt was inspected and tightened if required—shows that if it was done at all within the hour, it was done negligently since the bolt should not have come loose.

Min-Sun Ho v. Steep Rock Bouldering, LLC, 2018 NY Slip Op 30006(U) (Sup Ct. N.Y. Co., January 2, 2018)

Supreme Court addressed the gymnasium’s motion for an Order granting summary judgment and dismissing the complaint.

The Court summarized the facts and arguments:

Plaintiff brought this action seeking damages for injuries she sustained…while at Defendant’s bouldering gym, Steep Rock Bouldering. Plaintiff alleges, in sum and substance, that, due to the negligence of Defendant, she fell from Defendant’s gym’s indoor climbing wall and landed on her right arm, tearing ligaments and breaking a bone in the arm and elbow area, which required surgery. Defendant argues, in sum and substance, that Plaintiff assumed the risk of injury from a fall at its gym and that its gym provided an appropriate level of safety and protection for boulderers through warnings, notices, an orientation, equipment, and the nature of the climbing wall itself. As such, Defendant argues it had no further duty to Plaintiff. Plaintiff argues, in sum and substance, that she did not assume the risk of an injury from falling off of the climbing wall.

Plaintiff’s deposition testimony:

Plaintiff Min-Sun Ho stated that she and her roommate intended to climb the indoor wall at Steep Rock Bouldering on October 12, 2015…Plaintiff further stated that her roommate had joined Defendant’s gym several weeks prior to October 12, 2015…Plaintiff further stated that, prior to October 12, 2015, in high school, she took a rock climbing class once a week for a semester…Now in her thirties, Plaintiff stated that she was able to recall the class, the basic commands for climbing, and the techniques for climbing[.]

Plaintiff stated that, on October 12, 2015, she looked up Defendant’s gym’s facebook page and observed people climbing at Steep Rock Bouldering without ropes or harnesses.

Plaintiff further stated that she then signed up online for a one-month membership at Steep Rock Bouldering [; and] she had also heard from her roommate, before October 12, 2015, that there were no harnesses or ropes at Steep Rock Bouldering…Plaintiff further stated that, on October 12, 2015, Plaintiff’s roommate again explained that Defendant’s gym does not have harnesses or ropes…Plaintiff stated she was not aware, prior to October 12, 2015, that the term “bouldering” refers to a form of rock climbing without harnesses or ropes[.]

Plaintiff stated that, upon arriving at Steep Rock Bouldering on October 12, 2015, she observed a reception desk and a climbing wall to her left where she saw more than three people climbing[;] she believed the climbing wall was about 15 feet tall[; and] the receptionist asked if Plaintiff had rock climbed before and that she answered that she had, a long time ago [and] she signed an electronic waiver form at the reception desk. Plaintiff, at the time of the EBT, stated she did not recall having read any of the waiver except for the signature line[.]

Plaintiff stated that, after signing the waiver, she waited while the receptionist called a man over to Plaintiff and her roommate[;] she herself believed the man who came over was another Steep Rock Bouldering employee[;] the man told Plaintiff “something along the lines of `that’s the wall as you can see, it’s self-explanatory.’”…Plaintiff further stated that the man also told her “[t]hose are the bathrooms.”…Plaintiff further stated that the man asked her if she had rock climbed before and that she answered “yeah, a while ago.”…Plaintiff stated that the man did not say he was an instructor or take Plaintiff anywhere and that neither the man nor the receptionist said anything about an instructor[;] she did not have an orientation or an instructor at Defendant’s gym[; and] she that did not see any instructional videos [and] she had felt comfortable not having an instructor and climbing the walls without any harnesses or ropes[.]

Plaintiff stated that, after speaking with the man, she changed into climbing shoes which she stated she recalled borrowing from Steep Rock Bouldering[;] she then put her and her roommate’s belongings away in a cubby and started getting ready to climb[;] she had observed mats in front of the climbing wall on the floor[; and] she had further observed “quite a few” people who she thought were other climbers and their friends climbing the wall or watching and giving tips on holds[.]

Plaintiff stated she was told before she started climbing that the holds on the climbing wall are tagged according to their difficulty and that the levels of difficulty marked “V0 or V1” are the “easiest.”[;] after waiting a few minutes, she herself climbed to the top of the climbing wall on level V1 on her first attempt[;] she did not think it took very long to make the climb [and] she and her roommate took turns climbing the wall…Plaintiff further stated that, while she herself was climbing, her roommate was on the mat watching her climb[;] she herself climbed again once or twice[; and] on her third or fourth climb, she herself had made it about a couple of feet from the top of the wall before she fell [and] that her roommate was watching her when she fell[.]

Plaintiff stated that she had not fallen from a climbing wall prior to October 12, 2015[;] she did not think she could fall, nor did she think about falling, when she bought her membership, when she first saw the wall when she entered the building, or when she first started climbing…Plaintiff further stated that did not see anyone else fall at Steep Rock Bouldering prior to her own fall, but did see people jumping down from “[s]omewhere above the middle” and “closer to the top” of the climbing wall instead of climbing down[.]

Plaintiff stated she herself climbed down the wall after her first climb, but then became more “confident” and climbed down halfway and then jumped in subsequent successful climbs[;] immediately before she fell, she was climbing up the wall and reaching to the side[; and] she then grabbed onto a knob, looked down, and saw a man looking up at her…Plaintiff was asked…”[w]hen you looked down, did you think about falling or if you could fall?” In reply, Plaintiff stated “I was a little scared. When I looked down, I was a lot higher than I thought I was.”…Plaintiff stated that she had wanted to come back down at this time[; and] she fell after she saw the man looking up at her…Plaintiff was asked…”[d]o you know why you fell?” and answered, “I don’t know exactly.”[.]

Defendant’s deposition testimony:

Vivian Kalea stated that, at the time of her EBT, she was the general manager of Steep Rock Bouldering [and] on October 12, 2015, she was a closing manager and youth team coach at Steep Rock Bouldering[.]

Kalea stated that she was at Steep Rock Bouldering when Plaintiff was injured and filled out the related injury report form[;] the injury report indicated that Plaintiff was a member of Steep Rock Bouldering and had paid a fee to use the gym prior to her injury[; and] the injury report further indicated that Plaintiff fell from a yellow V1 level of difficulty, about three moves from the top, and landed on her right side[.]

Kalea stated that V1 is a beginner’s level of difficulty[;] the higher the number is after the “V,” the greater the level of difficulty[;] “V” designation is not a description of a specific height or location…Kalea further stated that V2 is also a beginner’s level [and] the wall Plaintiff was on had a “slight incline” but was “mostly vertical” and “[c]lose to 90 degrees[.]

Kalea stated that Steep Rock Bouldering offered climbing shoe rentals and chalk for climbers on October 12, 2015[;] the climbing shoes provide support for climbing activities by improving friction and power to the big toe and that the chalk gives the climbers a better grip on whatever it is they are holding onto…Kalea further stated that the padded area in front of the climbing wall was over a foot thick on October 12, 2015, and was there to help absorb the shock from a fall [and] a spotter, “somebody who guides a climber to fall down,” was not required at Steep Rock Bouldering on October 12, 2015[.]

Kalea stated that the climbing walls at Steep Rock Bouldering are 14 feet high and that the holds do not all go to the top[;] the holds are of different textures, sizes, and appearances and that their locations can be changed to create varying paths up the wall and establish the difficulty of a given level [and] climbers at Steep Rock Bouldering do not climb with ropes or harnesses[.]

Kalea stated that Steep Rock Bouldering employees ask whether it is a new member’s first time bouldering “to clarify that they understand the risk of bouldering.” [and] every climber is supposed to receive an oral safety orientation from Steep Rock Bouldering staff prior to climbing that consists of the following:

“It consists of understanding the person’s climbing experience, their experience bouldering. That they understand that bouldering is a dangerous sport. How every fall in a bouldering environment is a ground fall.  It goes over how the climbs are kind of situated, so everything is by color and numbers. It goes over that we do encourage down climbing in the facility. So that means when you reach the top of the problem, which is not necessarily the top of the wall, but the finishing hold, you climb down about halfway before you jump, if you do want to jump. It goes over how to best fall”[.]

Kalea stated that the giving such an orientation is standard in the climbing industry and was required at Steep Rock Bouldering on October 12, 2015 [and] “[i]t is made clear to everyone who walks in the door that they are going to receive a safety orientation” and that staff’s failure to do so would be breaking Steep Rock Bouldering’s rules…Kalea was asked…to assume that Plaintiff was told “essentially…there is the wall, it’s self explanatory [sic] and that’s all the person did” and was then asked “[i]f that is all that was said, is that a proper safety instruction orientation?”…Kalea replied, “[i]t is not.”

Plaintiff’s liability expert:

Plaintiff retained Dr. Gary G. Nussbaum as its liability expert. Dr. Nussbaum has a Masters of Education and an Education Doctorate in Recreation and Leisure Studies from Temple University. Dr. Nussbaum has 45 years of experience in the adventure education, recreation, and climbing field with a variety of teaching credentials related specifically to climbing. In forming his opinion, Dr. Nussbaum reviewed photographs of the climbing wall used by Plaintiff on the date of her injury, the injury report, the waiver form, and the EBT transcripts.

After his review, Dr. Nussbaum opined that Plaintiff should have been provided with the following: a harness, a rope, or some similar safety device; a spotter; an orientation; and an introductory lesson. Dr. Nussbaum opined further that the only time a harness or similar device is not required is “when the wall is low, less than 8 feet[,] and where it is angled so that a [climber] cannot fall directly down[,] but simply slides down the angled wall. Here, the wall was high and not angled, and therefore the safety devices including the harness and rope are required.”[.]

Dr. Nussbaum opined that a person of Plaintiff’s skill level was a novice and needed to be taught “how to climb, how to come down, and even how to fall safely. None of this was done or provided.”…Dr. Nussbaum opined further that “[a]s a new climber, [Plaintiff] did not appreciate the risk” involved with bouldering…Dr. Nussbaum opined further that the reading Steep Rock Bouldering waiver form, which Plaintiff did not, would not mean that the reader understands or assumes the risk…Dr. Nussbaum opined further that the padding “likely” gave Plaintiff a “false sense of security” and “no appreciation of the risk here.”[.]

Dr. Nussbaum opined that, because Steep Rock Bouldering does not offer rope climbing, its climbing wall requires that the climber “climb down, climb partway down and jump the remainder, fall down in a controlled manner, or simply fall down if he or she loses control.”…Dr. Nussbaum cited to the Climbing Wall Association’s…Industry Practices § 4.06 and opined further that Defendant’s gym should have provided “a thorough orientation to bouldering and how to mitigate the risk of predictable falls” per the CWA guidelines[.]

Citing to CWA’s Industry Practices § 4.01, Dr. Nussbaum opined further that:

[Plaintiff’s] `level of qualification or access to the climbing should [have been] checked upon entering and prior to climbing in the facility.’ In the absence of demonstrated proficiency in climbing, [Plaintiff] should have been `supervised by staff or a qualified climbing partner, or her access to the facility must [have] be[en] limited accordingly.’ In the case at hand, there was a cursory transition from the street into the gym and the commencement of climbing. [Plaintiff] was simply asked if she had previous climbing experience and essentially told `here’s the wall, have at it.’[.]

Citing to CWA’s Industry Practices § 4.02, Dr. Nussbaum finally opined that:

[T]he climbing gym staff should [have] utilize[d] a screening process before allowing potential clients to access the climbing wall/facility. The purpose of the screening is to determine the `new client’s ability to climb in the facility’ and `to assess the client’s prior climbing experience, knowledge and skills (if any).’ [Plaintiff] was not asked about how long she had been climbing, whether or not she had experience at a climbing gym or facility, how often or how recently she had climbed, and/or the type of climbing she had done. She was not asked if she had knowledge of or experience bouldering. Again, she was simply asked if she had prior climbing experience, reflecting a wholly inadequate screening process[.]

Dr. Nussbaum opined that spotting is an advanced skill requiring training for the spotter to spot effectively and safely. As such, Dr. Nussbaum stated, Plaintiff’s roommate “was not a spotter and had no skill and no training to be one.”…Dr. Nussbaum opined further that Steep Rock Bouldering was required to enforce its spotter requirement by providing an adequately skilled spotter or ensuring that an intended spotter has the requisite skill set…Dr. Nussbaum opined further that, if Steep Rock Bouldering chooses not to require spotting, it is then required to “emphasize, encourage and instruct in the safest ways to descend, including falling techniques… [It] did not enforce its spotting requirement nor [sic] provide proper instruction in falling techniques.”

Defendant’s liability expert:

Defendant retained Dr. Robert W. Richards as its liability expert. Dr. Richards is a founding member of the CWA and is currently affiliated with CWA as an expert in risk management. Dr. Richards has been involved in the climbing wall industry since 1992. Dr. Richards stated that, as there are no set regulations for climbing facilities, the CWA intends to assist the industry in defining, understanding, and implementing a set of responsible management, operational, training, and climbing practices…Dr. Richards further stated that the CWA’s Industry Practices is a sourcebook for the operation of manufactured climbing walls[.]

In forming his opinion, Dr. Richards performed a site inspection of Steep Rock Bouldering’s climbing wall on June 22, 2017…Dr. Richards observed at the site inspection that Defendant’s gym had “Climb Smart” posters, indicating the risks of bouldering, displayed in multiple locations. Dr. Richards stated that these signs were also present on October 12, 2015…Dr. Richards observed further that the climbing wall is approximately thirteen feet, six inches tall when measured from the top of the padded area around the wall…Dr. Richards stated that this was also the height of the wall on October 12, 2015[.]

Dr. Richards describe[d] the sport of bouldering as follows:

Bouldering is the form of climbing that is performed without the use of safety ropes and typically on a climbing surface that is low enough in height that a fall from the wall will not be fatal. Bouldering walls in climbing gyms may range from ten to twenty feet in height. The [CWA] states that average bouldering wall heights in the climbing wall industry are between twelve and fifteen feet. Climbers who boulder are referred to as boulderers…Dr. Richards stated “[a] specific climb is referred to as a . . . `problem’ and is usually marked with colored tape or colored holds which are attached to the artificial climbing wall.”[.]

And opined that:

[B]ouldering entails an inherent risk of injury from falls [and] it is not possible to eliminate this risk “without altering the very essence of the sport.”…Dr. Richards opined further that the most common injuries in climbing gyms are to the extremities which can result from falls of any height[.]

Dr. Richards opined further that the risk inherent to bouldering was communicated to Plaintiff by means of a written liability release and an orientation[;] Plaintiff signed a liability release form and completed an orientation[; and] the liability release form included the following language: “I have examined the climbing wall and have full knowledge of the nature and extent of the risks associated with rock climbing and the use of the climbing wall, including but not limited to: [injuries] resulting from falling off or coming down from the climbing wall…”[.]

Dr. Richards opined further that, having visited approximately “200 gyms” since 1992, he has never been to a gym that requires climbers to have spotters and strictly enforces that requirement[;] spotting was developed for outdoor bouldering to guide the fall of boulderers in an environment where there are typically little or no padded surfaces to protect the head [and] the CWA does not require spotters when bouldering on artificial climbing walls and that it is not a common practice in the industry to require such spotters…Dr. Richards further stated that the padded landing surfaces in gyms reduce many of those dangers that a spotter would help to mitigate outdoors [and] opined that, as such, use of a spotter in an indoor climbing gym is of “limited benefit” and “may cause injury to the boulderer and spotter if the climber were to fall directly on the spotter.”[.]

Dr. Richards opined further that the purpose of Defendant gym’s padded landing surface around its climbing wall is “to mitigate potential injuries to the head and neck” [; and] that, while the padding may “provide some cushioning for falls,”…”[p]ads are not designed to mitigate or limit extremity injuries, although they may do so.”…Dr. Richards stated that, while there was no industry standard regarding the type, amount, or use of such padding in October 2015, a typical surface in October 2015 would have “consisted of four to six inches of foam padding or other impact attenuation material with a top layer of gymnastic carpet or vinyl that covers the underlying padding.”…Dr. Richards further stated that Defendant’s gym used foam pads of a twelve-inch depth that ran continuously along the climbing wall and extended twelve feet out from the wall on October 12, 2015[.]

Defendant’s affirmation:

Defendant alleges in its papers that it has a place of business that includes a bouldering climbing gym in New York City on Lexington Avenue [and] its gym has a continuous climbing wall that is approximately 30 to 40 feet wide and 14 feet tall and has climbing holds which are textured objects bolted into the wall which climbers can grab onto with their hands and stand upon with their feet[.]

Defendant argues, in the main, that Plaintiff assumed the inherent risk associated with climbing an indoor wall and with bouldering when she chose to climb Defendant’s gym’s bouldering wall[; and]   Plaintiff was able to make an informed estimate of the risks involved in bouldering and that she willingly undertook them [and] Plaintiff was aware of the potential for injury from a fall because she is an intelligent adult familiar with the laws of gravity and had prior wall climbing experience in an indoor setting (albeit with ropes)… Defendant further argues that Plaintiff was aware of the risks associated with climbing because, before she was injured, Plaintiff watched other climbers ascend and descend its climbing wall and climbed up and down the wall herself without incident several times, even feeling comfortable enough to jump from halfway down the wall as opposed to climbing all the way down [and] Plaintiff voluntarily and knowingly engaged in the bouldering activity and that her fall was a common, albeit unfortunate, occurrence…Defendant argues that falling is inherent to the sport of climbing, that falling cannot be eliminated without destroying the sport, and that injuries resulting from falling from a climbing wall are foreseeable consequences inherent to bouldering[; and] the risk of falling from Defendant’s gym’s climbing wall was open and obvious to Plaintiff[;] Plaintiff did not request further instruction beyond what Steep Rock Bouldering provided on October 12, 2015, and that Plaintiff was comfortable climbing without ropes or a harness…Defendant argues that Plaintiff’s allegation that she did not receive proper instruction is pure conjecture and will only invite the jury to speculate about what further instruction Plaintiff would have received had she sought it out[.]

Defendant argues that there was no unique risk or dangerous condition in Defendant’s gym on October 12, 2015, over and above the usual dangers inherent to bouldering[;] Defendant has the right to own and operate a gym that offers bouldering, only, and not rope climbing[;] the height of its gym’s climbing wall and the depth of its surrounding padding were well within what was typical of other climbing facilities in October 2015 [and] it had no duty to provide a spotter or supervise Plaintiff’s climbing[.]

Defendant argues that Plaintiff’s expert has not cited to any standards or rules that would have required that Defendant provide Plaintiff with a spotter or supervise Plaintiff’s climbing or that would justify an opinion that negligence on the part of Defendant proximately caused Plaintiff’s accident…Defendant further argues that Plaintiff’s expert fails to acknowledge that Plaintiff engaged in a rope climbing class every week for a semester [and] Plaintiff’s expert has never visited Steep Rock Bouldering and that therefore any assertions that Plaintiff’s expert will make are conclusory and insufficient to demonstrate Defendant’s negligence.

Plaintiff’s affirmation:

Plaintiff argues in her papers that the affidavit of her liability expert, Dr. Gary G. Nussbaum, establishes Defendant’s negligence and Plaintiff’s lack of appreciation and understanding of the risk[;] she had a false sense of security because of the thick mats around the climbing wall and that she therefore did not appreciate the risk [and] her climbing experience at Steep Rock Bouldering was very different from her prior experience with climbing, which was limited to one semester of indoor climbing class 12-13 years prior to the incident, in high school, involving a rope, harness, spotter, and instructor…At the time of the incident, Plaintiff was age 30 and had never done any rock climbing again after the high school class[.]

Plaintiff argues that she believed the padding beneath the climbing wall would prevent “any injury whatsoever”[;] this was her belief even though she signed a release of liability because she did not read it[; and] she was given no orientation or instructor on October 12, 2015, but was only told where the wall was and that it was “self-explanatory.”…Plaintiff further argues that the release she signed is void and unenforceable because she paid a fee to use Defendant’s gym[.]

Plaintiff argues that Defendant was negligent in failing to provide Plaintiff with a rope, a harness, instruction, an orientation, and a spotter [and] the assertions of Defendant’s liability expert, Dr. Robert W. Richards, regarding posters on the wall at Steep Rock Bouldering are irrelevant and erroneous because he visited the facility 1.75 years after Plaintiff’s accident and claims the posters were in place on the date of the accident[.]

Defendant’s reply affirmation:

Defendant argues in its reply papers that Plaintiff did not have a false sense of security because Plaintiff: (1) was aware that Defendant’s gym only supplied climbing shoes and climbing chalk; (2) observed that none of the other climbers were asking for a rope or a harness; (3) testified that she felt comfortable climbing without harness, a rope, or an instructor; (4) knew prior to her injury that the climbing paths have different difficulty levels and that she was at a beginner level; and (5) had already, prior to her injury, climbed the wall two to three times without incident, reached the top of the wall, and jumped from the wall to the floor from halfway up the wall…Defendant further argues that Plaintiff’s claim of having a false sense of security is disingenuous because she plainly observed the conditions of the climbing wall and the padded mats, was able to approximate the height of the wall, and, at age 30, was fully aware of, paid to engage in, and voluntarily undertook a form of climbing that involves neither ropes nor harnesses[.]

Defendant argues that Plaintiff has overlooked Dr. Richards’ explanation that a spotter has limited benefit and may cause injury to the climber and spotter if the climber were to fall directly onto the spotter [and] climbers utilizing a rope and harness may also sustain injury from falls when climbing[.]

Defendant argues that Plaintiff cannot prove by a preponderance of the evidence that Defendant proximately caused Plaintiff’s injury because Plaintiff herself testified that she does not know why she fell, and mere speculation regarding causation is inadequate to sustain a cause of action.

Defendant further argues that Plaintiff was aware of and assumed the risk that, in climbing a wall without ropes and harnesses—or a spotter—she could sustain an immediate physical injury from a fall.

Oral argument on behalf of Defendant:

Defendant argued that this is an assumption of the risk case in which Plaintiff fell during participation in a sport—bouldering—which, by definition, is rock climbing without ropes or harnesses[;and] Plaintiff had no reasonable expectation there would be ropes or harnesses at Steep Rock bouldering. Plaintiff stated that her roommate told her that climbing at Steep Rock Bouldering would involve no ropes or harnesses[;] she observed photographs of people using the gym on facebook at parties—prior to going to Defendant’s gym—without ropes or harnesses[; and] she saw people climbing at the gym in person before she climbed and that none of them were using ropes or harnesses.

Defendant argued that Plaintiff was additionally noticed as to the dangers inherent to bouldering by the electronic waiver, which she signed…Defendant clarified that it is not moving to dismiss the instant action on waiver grounds and acknowledged that Plaintiff’s signing the waiver did not absolve Defendant of liability…Defendant argued that Plaintiff was further noticed by an individual, an employee of Defendant, who explained to Plaintiff prior to her climbing about the wall and the climbing paths[;] Plaintiff was further noticed by her own experience of climbing up and down the wall two to three times without any incident and with jumping off of the wall prior to her fall [and] Defendant was comfortable climbing without equipment or an instructor[.]

Defendant argued that it cannot enforce a statement on its waiver that a climber is not to climb without a spotter. Defendant argued that this is for four reasons: because spotting does not prevent injury, because spotting was developed when bouldering was outside, because spotting can only act to attempt to protect the head and neck outdoors—and indoors the padding provides this function—and because spotting may endanger the spotter. Defendant stated that spotting is not enforced at its gym. Defendant further stated that its liability expert has not seen this requirement enforced at any of the 200 gyms he has traveled to which do have this requirement on paper[.]

Defendant argued that falling when climbing a wall is a common, foreseeable occurrence at a climbing facility [and] Plaintiff is an intelligent woman, 30 years old at the time of her injury, with a degree in biology. As such, Defendant argued that Plaintiff knew the laws of gravity: what goes up, must come down[;] a person is said to have assumed the risk if he or she participates in an activity such as climbing where falling is an anticipated and known possibility [and] Plaintiff testified that she does not know what caused her to fall[.]

Oral argument on behalf of Plaintiff:

Plaintiff argued in opposition that Defendant’s own rules required a spotter for climbers and that Defendant broke its rule and therefore proximately caused Plaintiff’s injury[;] “in every kind of climbing you are required to have a rope, a harness, something to prevent an injury and a fall.” [and] a spotter “will say lift your arms, turn to the side” as a person begins to fall.

Plaintiff further argued that proximate cause has been established and the real question for the Court is whether Plaintiff assumed the risk[;] “unusually thick” mats around the climbing wall gave Plaintiff a false sense of security [and] Plaintiff saw people fall onto the soft matted floor without getting hurt, and therefore assumes this is a safe sport, but it is not. Plaintiff argued that assumption of risk is a subjective standard and that Plaintiff was a novice who had only climbed with ropes and harnesses prior to the day of her injury and thus did not assume the risk of “falling on a soft mat and breaking an elbow.”[.]

Plaintiff argued that there is a distinction between assuming the risk that one could fall from a climbing wall and assuming the risk that one could be injured from the fall[;] Plaintiff assumed the former, not the latter, in part because of a false sense of security due to the mats and not having a spotter [and] the mats that are placed by the climbing wall are “extremely substantial,” “for the sole purpose of preventing injury,” and “designed supposedly to prevent injury from a fall, and…didn’t.”[.]

Plaintiff argued that, as a matter of law, because the mats were there, Plaintiff cannot be held to the belief that she was going to get hurt when she went up the climbing wall…Plaintiff clarified that she is not claiming the mat was inadequate…Plaintiff argued that there was no assumption of injury from climbing or falling normally from the Defendant’s gym’s climbing wall [and] Plaintiff “did not assume the risk of being injured by a fall, period.”[.]

Defendant’s oral argument reply:

Defendant argued in reply that Plaintiff was bouldering, which by definition involves no ropes or harnesses, and did so voluntarily[; and] Plaintiff’s liability expert cites to no regulations, standards, or rules that would quantify his reasoning why there should have been ropes, harnesses, or a spotter, or why the mat gave Plaintiff a false sense of security…Defendant further argued that the law says that when someone assumes the risk, they are assuming the risk inherent to the activity, and that assumption of injury specifically is not required [and] in the instant case, the risk inherent to bouldering is falling, and that falling from a height may result in injury. As such, Defendant argued, Plaintiff assumed the risk[.]

Defendant further argued that there was no negligent hidden condition and nothing wrong with the wall or the mats[;] a climbing wall of 13 to 14 feet and mats of 12-inch thickness, as here, are typical [and] Plaintiff fell because she did not have a rope or harness is speculation insufficient to defeat a motion for summary judgment[.]

The “assumption of risk” doctrine:

“Under the doctrine of primary assumption of risk, a person who voluntarily participates in a sporting activity generally consents, by his or her participation, to those injury-causing events, conditions, and risks which are inherent in the activity.”…”Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation.”…However, “[s]ome of the restraints of civilization must accompany every athlete onto the playing field. Thus, the rule is qualified to the extent that participants do not consent to acts which are reckless or intentional.”…”[I]n assessing whether a defendant has violated a duty of care within the genre of tort-sports activities and their inherent risks, the applicable standard should include whether the conditions caused by the defendants’ negligence are unique and created a dangerous condition over and above the usual dangers that are inherent in the sport.”…In assessing whether a plaintiff had the appropriate awareness to assume the subject risk, such “awareness of risk is not to be determined in a vacuum. It is, rather, to be assessed against the background of the skill and experience of the particular plaintiff.”[.]

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In any action to recover damages for personal injury, injury to property, or wrongful death, the culpable conduct attributable to the claimant or to the decedent, including contributory negligence or assumption of risk, shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which caused the damages.

[T]he Court of Appeals has held that, in certain circumstances, a plaintiff’s assumption of a known risk can operate as a complete bar to recovery. The Court of Appeals refers to this affirmative defense as “primary assumption of risk” and states that “[u]nder this theory, a plaintiff who freely accepts a known risk commensurately negates any duty on the part of the defendant to safeguard him or her from the risk.”…In assuming a risk, Plaintiff has “given his consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone.”[.]

Nonetheless, the doctrine of primary assumption of risk has often been at odds with this state’s legislative adoption of comparative fault, and as such has largely been limited in application to “cases involving certain types of athletic or recreational activities.”…In Trupia ex rel. Trupia v Lake George Cent. School Dist., Chief Judge Lippman discussed the uneasy coexistence of the two doctrines:

The doctrine of assumption of risk does not, and cannot, sit comfortably with comparative causation. In the end, its retention is most persuasively justified not on the ground of doctrinal or practical compatibility, but simply for its utility in facilitating free and vigorous participation in athletic activities. We have recognized that athletic and recreative activities possess enormous social value, even while they involve significantly heightened risks, and have employed the notion that these risks may be voluntarily assumed to preserve these beneficial pursuits as against the prohibitive liability to which they would otherwise give rise. We have not applied the doctrine outside of this limited context and it is clear that its application must be closely circumscribed if it is not seriously to undermine and displace the principles of comparative causation that the Legislature has deemed applicable to any action to recover damages for personal injury, injury to property, or wrongful death.

…Writing two years later, Chief Judge Lippman further explained the scope of primary assumption of risk in Bukowski v Clarkson University:

The assumption of risk doctrine applies where a consenting participant in sporting and amusement activities is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks. An educational institution organizing a team sporting activity must exercise ordinary reasonable care to protect student athletes voluntarily participating in organized athletics from unassumed, concealed, or enhanced risks. If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty. Relatedly, risks which are commonly encountered or `inherent’ in a sport, such as being struck by a ball or bat in baseball, are risks for which various participants are legally deemed to have accepted personal responsibility. The primary assumption of risk doctrine also encompasses risks involving less than optimal conditions[.]

Finding that:

Based upon the Court’s reading of the submitted papers and the parties’ oral argument before it, the Court finds that Defendant has shown prima facie that Plaintiff assumed the risks associated with falling from Defendant’s gym’s climbing wall, including injury. Defendant has shown prima facie that Plaintiff voluntarily participated in the sporting activity of bouldering at Steep Rock Bouldering and assumed the risks inherent therein. Specifically, Defendant has referred to Plaintiff’s deposition testimony, which was sufficient to establish that Plaintiff: (1) had experience with rock climbing; (2) was aware of the conditions of the climbing wall from observations both at a distance—from looking online at facebook and watching others—and up close on her two or three successful climbs prior to her injury; and (3) was aware that a person could drop down from the wall, as Plaintiff had herself already jumped down from the wall of her own accord.

In response, Plaintiff fails to raise a genuine issue of material fact. Steep Rock Bouldering’s climbing wall is of an average height for bouldering walls according to Dr. Richards. Dr. Nussbaum’s assertion that climbing on any wall of a height of eight feet or more requires a harness or similar device is conclusory, unsupported by citation, and, ultimately, unavailing.

To require harnesses and ropes at Steep Rock Bouldering would fundamentally change the nature of the sport. Bouldering is a type of climbing that does not require ropes or harnesses. The Court finds that injury from falling is a commonly appreciable risk of climbing—with or without harnesses, ropes, or other safety gear—and that Plaintiff assumed this risk when she knowingly and voluntarily climbed Defendant’s gym’s climbing wall for the third or fourth time when she fell. To hold that Defendant could be liable for Plaintiff’s injuries because it allowed her to climb its wall without a rope and harness would effectively make the sport of bouldering illegal in this state. To do so would fly in the face of the reasoning in Trupia that such “athletic and recreative activities possess enormous social value, even while they involve significantly heightened risks, and . . . that these risks may be voluntarily assumed to preserve these beneficial pursuits as against the prohibitive liability to which they would otherwise give rise.”[.]

McDonald v. Brooklyn Boulders, 2016 NY Slip Op 32822(U) (Sup Ct. K. Co., April 12, 2016)

Supreme Court addressed defendant’s motion for summary judgment and dismissal of the complaint in this personal injury action arising out of plaintiff’s fall from a rock climbing wall.

The Court summarized the facts:

Plaintiff is employed as a program director and head coach of a youth rock climbing team at The Rock Club, an indoor rock climbing gym in New Rochelle, New York and has been so employed since 2006. On September 1, 2011, plaintiff went to Brooklyn Boulders with some of the members of her youth climbing team and other adults. Brooklyn Boulders is an indoor rock climbing and bouldering facility located in Brooklyn, New York. Plaintiff testified that this trip was a treat for her team and that she would be climbing that day too. It is undisputed that plaintiff signed a waiver before she began climbing and that she did not pay an entry fee pursuant to a reciprocal agreement in place between The Rock Club and Brooklyn Boulders as well as other rock climbing facilities. After approximately one and a half hours of bouldering with her team, plaintiff went to an area of the bouldering wall known as The Beast, which is very challenging in that it becomes nearly horizontal for some distance. It was her first time on the Beast, although she had been to Brooklyn Boulders on prior occasions. Plaintiff testified that she visually inspected the area below the Beast before she began her climb. Lance Pinn, the Chief Marketing Officer, President and founder of Brooklyn Boulders testified that there was foam matting system in place, with matting wall to wall in the area of the Beast. The largest pieces available were 9 feet by 7 feet so the area where the foam pieces met when placed on the ground was covered with Velcro to keep the foam matting pieces flush together.

Plaintiff finished her upward climb and then climbed down as far as she could and then looked down below to make sure there were no shoes in her way and that her spotter was out of the way. She stated that she knew that there were mats underneath so she jumped down a distance of approximately five feet. Her right foot landed on the mat but her left foot landed on the Velcro strip where two floor mats met. She testified that her left foot went through the Velcro into a space between the two mats. Plaintiff sustained an ankle fracture as a result and required surgeries and physical therapy.

Defendant’s contentions:

Defendant argues that the liability waiver that plaintiff signed when she entered the facility releases it from liability. Defendant maintains that plaintiff was an expert climber and coach and understood the meaning of the waiver and appreciated the assumption of risk involved in the activity that she was engaged. Defendant also points out that she did not pay a fee to climb that day based upon the reciprocal program in place with other climbing facilities. Defendant claims that plaintiff was instructing her students that day as they observed her climbing and point to her testimony as follows:

Q: And were you teaching them, you know, what to do and what not to do?

A: I wasn’t teaching them, but if they had a question they would ask me hey, should I do this or do this or what do you think of this move I always give advice[.]

1. Did you ever teach any or give any instruction there?
2. Just of terms of like in my kids I probably give instruction everywhere I go. There are so many people that climb at Brooklyn Boulders that are total beginners. I’m often spotting brand new people and telling them how to spot one another[.]

Defendant notes that although General Obligations Law (GOL) §5-326 renders contract clauses which release certain entities from liability void as against public policy, activities which are “instructional” as opposed to recreational are found to be outside the scope of GOL §5-326. Defendant maintains that here, plaintiff was at Brooklyn Boulders to instruct her team members and thus GOL §5-326 is not applicable. Moreover, defendant argues that the waiver at issue was explicit, comprehensive and expressly provided that Brooklyn Boulders was released from liability for personal injuries arising out of or connected with plaintiff’s participation in rock climbing.

In support of its motion, defendant submits the signed waiver which states, in pertinent part:

I acknowledge that climbing on an artificial climbing wall entails known and unanticipated risks which could result in physical or emotional injury, paralysis, death, or damage to myself, to property, or third parties. I understand that such risks simply cannot be eliminated without jeopardizing the essential qualities of the activity. I have examined the Climbing Wall and have full knowledge of the nature and extent of the risks associated with rock climbing and the use of the Climbing Wall, including but not limited to:

1. All manner of injury resulting from my falling off or from the Climbing Wall and hitting the floor, wall faces, people or rope projections, whether permanently or temporarily in place, loose and/or damaged artificial holds, musculoskeletal injuries and/or overtraining; head injuries; or my own negligence…

I further acknowledge that the above list is not inclusive of all possible risks associated with the Climbing Wall and related training facilities and I agree that such list in no way limits the extent or reach of this Assumption of Risk, Release and Indemnification…

Defendant also argues that since plaintiff did not pay a fee to climb that day that her activity was outside the scope of GOL §5-326.

Next defendant argues that the assumption of risk doctrine bars plaintiff’s claims because, as a general rule, a plaintiff who voluntarily participates in a sporting or recreational event is held to have consented to those commonly appreciated risks that are inherent in, and arise out of, the nature of the sport generally and flow from participation in such event.

Plaintiff’s contentions:

Plaintiff opposes defendant’s motion arguing that General Obligations Law §5-326 renders the waiver and release that she signed void. She points out that defendant is attempting to circumvent this law by asserting that the activity in which plaintiff was involved was instructional as opposed to recreational and misstates her testimony in an attempt to mislead the court…In support of her position that she was not at Brooklyn Boulders for instructional purposes, but, rather was there for a fun day of climbing, plaintiff points to her testimony that she brought some of the older members of her team to Brooklyn Boulders to climb. She testified that they all worked at The Rock Club so this was an end of summer treat for them to go and climb somewhere else and not have to work…She further points to the following testimony:

Q: In September of 2011 when you went there on the date in question what was your purpose of being there?

A: I went there with a handful of kids who are on my climbing team, but it wasn’t a specific training day. Usually when we go it would be for training but this was just like a fun day. I was going to climb with them.

Q: And were they climbing around you.

A: Yeah, they were[.]

Q: And were you supervising them?

A: I wasn’t their active supervisor. I’m a coach though so I’m always watching what they do. But this was one of the few times that I was actually going to be climbing so it was kind of a treat for them I guess to be able to climb with me.

Q: Were they watching you?

A: A few of them were watching me yeah.

Q: And were you teaching them, you know, what to do and what not to do?

A: I wasn’t teaching them, but if they had a question they would ask me hey, should I do this or do this or what do you think of this move I always give advice[.]

Plaintiff also contends that defendant incorrectly argues that GOL §5-326 does not apply because she cannot be classified a user since she did not pay to climb that day. In this regard, plaintiff contends that she is indeed a user and the law is applicable because there was a reciprocal agreement between the gym at which she was employed and Brooklyn Boulders pursuant to which employees were not required to pay a fee to use either gym. Thus, she contends the value of the reciprocity agreement is the compensation.

Next, plaintiff argues that the assumption of risk doctrine is not applicable where the risk was un-assumed, concealed or unreasonably increased. Plaintiff argues that the question of whether the gap in the mats at Brooklyn Boulders is a commonly appreciated risk inherent in the nature of rock climbing necessitates denial of the summary judgment motion. She claims that she did not assume the risk that there would be a gap in the matting that was in place as protection from a fall. Moreover, plaintiff maintains that defendant fails to proffer any evidence demonstrating when the mats were last inspected prior to plaintiff’s accident.

Plaintiff argues that issues as to whether dangerous or defective conditions exist on property and whether the condition is foreseeable can only be answered by a jury. Thus, she contends that whether the condition of the mats was dangerous and/or defective is an issue of fact and that defendant has failed to proffer any evidence that the mats were in a reasonably safe condition.

Defendant’s reply:

[D]efendant argues that…plaintiff’s testimony establishes that she was in fact, instructing her students when her accident occurred. Defendant contends that the waiver applies. Next defendant claims that as far as inspection of its equipment it had a route setting department that checked its walls and mats and that bouldering climbers were responsible for ensuring their own safety when climbing. Finally, defendant argues that the assumption of risk doctrine applies and that plaintiff visually inspected the area before the accident and that the Velcro covers were visible and moreover, she had the option to use additional mats underneath her while climbing. Defendant further contends that the mats did not constitute a dangerous condition[.]

General Obligations Law:

GOL §5-326 states that:

Every 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 to be void as against public policy and wholly unenforceable.

Such contracts or agreements are void as against public policy unless the entity can show that its facility is used for instructional purposes as opposed to recreational purposes. “The legislative intent of the statute is to prevent amusement parks and recreational facilities from enforcing exculpatory clauses printed on admission tickets or membership applications because the public is either unaware of them or not cognizant of their effect…Facilities that are places of instruction and training…rather than “amusement or recreation”…have been found to be outside the scope of the statute. “In assessing whether a facility is instructional or recreational, courts have examined, inter alia, the organization’s name, its certificate of incorporation, its statement of purpose and whether the money it charges is tuition or a fee for use of the facility”…In cases involving a mixed use facility, courts have focused less on a facility’s ostensible purpose and more on whether the person was at the facility for the purpose of receiving instruction…Where a facility “promotes…a recreational pursuit, to which instruction is provided as an ancillary service,” General Obligations Law §5-326 applies even if the injury occurs while receiving instruction[.]

Finding that:

Here, defendant asserts that GOL §5-326 is not applicable because plaintiff was at Brooklyn Boulders to instruct her team members. The court disagrees. Plaintiff’s testimony establishes that she was at Brooklyn Boulders with her team for a day of fun and not to teach them how to climb. Her testimony that she would give advice to the students if they asked does not rise to the level of providing rock climbing instruction on that day. Moreover, the court notes that the cases involving the exemption for instructional activities generally involve the person being instructed sustaining an injury and not the person who was providing the instruction. In addition, the court finds defendants’ argument that the fact that plaintiff did not pay a fee that day renders GOL §5-326 not applicable is equally unavailing. The reciprocal agreement that was in place between Brooklyn Boulders and The Rock Club, where plaintiff was employed, which allowed such employees to use other bouldering facilities without being charged a fee was a benefit of their employment and thus could be considered compensation. Accordingly, the court finds that the release and waiver signed by plaintiff is void pursuant to GOL §5-326.

And, as to assumption of risk:

The assumption of the risk defense is based on the proposition that “by 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 sport generally and flow from such participation”…including the injury-causing events which are the known, apparent, or reasonably foreseeable risks of the participation…A plaintiff is deemed to have given consent limiting the duty of the defendant who is the proprietor of the sporting facility “to exercise care to make the conditions as safe as they appear to be. If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty”…Stated otherwise, the duty of the defendant is to protect the plaintiff from injuries arising out of unassumed, concealed, or unreasonably increased risks…It is well settled that “awareness of risk is not to be determined in a vacuum. It is, rather, to be assessed against the background of the skill and experience of the particular plaintiff”…When applicable, the assumption of risk doctrine “is not an absolute defense but a measure of the defendant’s duty of care”…Thus, “a gym or athletic facility cannot evade responsibility for negligent behavior `by invoking a generalized assumption of risk doctrine as though it was some sort of amulet that confers automatic immunity’“[.]

Furthermore, “in assessing whether a defendant has violated a duty of care within the genre of tort-sports activities and their inherent risks, the applicable standard should include whether the conditions caused by the defendants’ negligence are unique and created a dangerous condition over and above the usual dangers that are inherent in the sport’“…Participants, however, do not assume risks which have been unreasonably increased or concealed over and above the usual dangers inherent in the activity [.]

Concluding that:

In this regard, the court finds that plaintiff has raised a question of fact regarding whether the condition of the mats, with the Velcro connection, increased the risk in the danger of the activity and caused a concealed dangerous condition. Thus it cannot be said that plaintiff assumed the particular risk that was present and caused her injuries.

Lessons learned:  Remember that you are principally responsible for your own safety when you go to the gym.