Were Gym Operators Liable for Injury?

Yael Sebagh sued Capital Fitness, Inc. and alleged that she was injured when she attempted to disembark from a treadmill at a fitness center. As she stepped off the treadmill, Sebagh allegedly tripped or stepped on an electrical box that was located on the floor next to the treadmill, which caused her to fall and sustain personal injuries. The building was owned by Simon Property Group, L.P., and leased by Capital Fitness, Inc., and Capital Fitness-Roosevelt, LLC.

Capital interposed an answer which included the third affirmative defense of the primary assumption of risk doctrine, the fourth affirmative defense that the allegedly dangerous condition was open and obvious, and the sixth affirmative defense that Sebagh was comparatively negligent.

Capital moved for summary judgment dismissing the complaint. Sebagh cross-moved for summary judgment on the issue of liability, and dismissing the third, fourth, and sixth affirmative defenses.

In an order entered May 30, 2019, the Supreme Court denied Capital’s motion, and granted those branches of the Sebagh’s cross-motion which were for summary judgment on the issue of liability and dismissing the third and fourth affirmative defenses. The Court denied that branch of the Sebagh’s cross-motion which was for summary judgment dismissing the sixth affirmative defense. Both Capital and Sebagh appealed.

A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant’s negligence was a proximate cause of the alleged injuries. In addition, the issue of a plaintiff’s comparative negligence may be decided in the context of a plaintiff’s motion for summary judgment on the issue of liability where, as here, the plaintiff also sought dismissal of the defendants’ affirmative defense alleging comparative negligence. And a motion for summary judgment should be granted if, upon all the papers and proof submitted, the cause of action or defense was established sufficiently to warrant the Court as a matter of law in directing judgment in favor of any party.

The owner or possessor of real property has a duty to maintain its premises in a reasonably safe condition. However, there is no duty to protect or warn against an open and obvious condition which, as a matter of law, is not inherently dangerous. A condition is open and obvious if it is readily observable by those employing the reasonable use of their senses, given the conditions at the time of the accident. However, the issue of whether a hazard is open and obvious cannot be divorced from the surrounding circumstances. A condition that is ordinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted. And because of the factual nature of the inquiry, whether a danger is open and obvious is most often a jury question.

Here, in support of those branches of her cross-motion which were for summary judgment on the issue of liability and dismissing the fourth and sixth affirmative defenses, Sebagh submitted transcripts of her deposition testimony and of an individual who witnessed the accident. That testimony indicated that the color of the electrical box was similar to the color of the carpet, and that the electrical box was located so close to the treadmill that it could not be observed by an individual who was standing on that machine. Sebagh also submitted an affidavit of an expert which tended to support her contention that the electrical box constituted a dangerous condition. Those submissions established, prima facie, that the location and condition of the electrical box rendered it a dangerous condition that was not open and obvious. It also demonstrated, prima facie, that she was not at fault in the happening of the accident.

However, in opposition to that prima facie showing, Capital raised a triable issue of fact, citing photographs allegedly depicting the electrical box, and testimony relating to the configuration and installation of the treadmills on the floor of the fitness center. That submission tended to show that the electrical box was open and obvious, and not inherently dangerous—and also raised triable issues of fact relating to Sebagh’s credibility and the credibility of her other witnesses, including her expert witness.

The record failed to establish that judgment as a matter of law was warranted and the Supreme Court erred in granting those branches of Sebagh’s cross-motion which were for summary judgment on the issue of liability and dismissing the fourth affirmative defense. The Court properly denied that branch of Sebagh’s motion which was for summary judgment dismissing the sixth affirmative defense.