Cooperatives and Condominiums Are at Risk for Liability for Accidential Injuries in the Gym04/06/2012 | Spring 2012 Newsletter
A recent case demonstrates that cooperatives and condominiums may be held liable for accidental injuries occurring in the gym (or health club, or exercise room) despite the existence of a waiver of liability signed by the gym user.
In Roer v. 150 West End Ave. Owners Corp., The Plaintiff stated in his Complaint that, while exercising on a treadmill in the gym, he was caused to fall and injure himself due to a loose exercise ball. The Plaintiff claimed that his injuries were caused by the negligence of the Co-op and another shareholder in the gym. He claimed the Co-op failed to take reasonable measures to ensure that the exercise ball would be secured when not in use; and that the other shareholder was negligent in her placement of the exercise ball in proximity to the treadmill that the Plaintiff was using.
A video surveillance camera was operating in the gym at the time of the accident. The video shows the Plaintiff jogging on a treadmill. A knee height exercise ball is in a stationary position immediately to the right of the Plaintiff and his treadmill. The other shareholder, who is also in the gym, rolls the ball out of her way and towards a weight machine several feet behind the treadmill. The ball slowly rebounds back towards the Plaintiff’s treadmill, to the point it is immediately behind the treadmill and physically touching the belt of the Plaintiff’s treadmill. Slightly less than one minute later, the exercise ball gets sucked under the belt of the treadmill, and the rear of the treadmill is lifted a couple of inches, propelling the machine forward several feet where it hits the wall and causes the Plaintiff to fall.
The Court stated that in order to recover in a claim for negligence, a plaintiff must show that there existed a duty on the part of the defendant owed to the plaintiff, and that the defendant breached this duty. The claim was that the Co-op had a duty to secure the exercise ball in order to prevent it from moving freely about the gym and becoming a hazard. The Co-op’s summary judgment motion to dismiss the case was denied because the issue of whether the occurrence which caused the Plaintiff’s injuries was caused by a breach of duty by the Co-op presented a disputed issue of fact which had to be resolved at a trial, and thus could not be resolved by the Court on a motion for summary judgment.
The Court stated that a jury might find that it was foreseeable that placing an exercise ball in proximity to a moving treadmill, where it could come into contact with the belt and disturb the treadmill’s functionality, posed a danger to the person using the treadmill. Similarly, a jury could find that the Co-op’s failure to provide storage racks or other means to prevent the free movement of the balls throughout the gym was a proximate cause of the Plaintiff’s injuries.
The Court rejected the Co-op’s argument that the gym membership contract signed by the Plaintiff relieved the Co-op of any liability. The contract provided:
“The undersigned hereby waives to the fullest extent permitted by law any and all claims which I/we may have against the Corporation, its directors, officers, agents and employees of any associated party, arising out of our use of the facilities, and injuries sustained in, or near the Exercise Room premises.”
The Court held that in order for a waiver to insulate the Co-op from liability for its own negligence, such waiver must contain plain and unmistakable language to that effect, and that even if the waiver could be read to provide that the Co-op is not liable for any claims resulting from its own negligence, such a waiver would be unenforceable under General Obligations Law §5-326, which provides that any contractual provision which exempts the owner or operator of a gymnasium from liability for damages caused by its own negligence is “void as against public policy and wholly unenforceable.”
A reading of the statute shows that it was aimed at commercial gymnasiums operated for profit, and not at exercise rooms in cooperatives and condominiums. Unfortunately, many gym contracts in use by coops and condos were based on forms used by commercial gyms, and appear to create an arms-length relationship between the Co-op as operator and the shareholder as user. As a result the waiver may not sufficiently place the burden on the exercising shareholder to take any action to avoid or minimize possibly hazardous conditions in the exercise room, and thus does not minimize the risk of having the court treat the Co-op as having a duty to take care of the shareholder.
In order to avoid the result in this case, we recommend revising existing forms to emphasize that the exercise room is operated on a non-profit basis, that there is no supervision of the exercise room, that the user assumes the risk of and is solely responsible for insuring there are no hazardous conditions in the exercise room, and that the Co-op has no duty to the shareholder to inspect the exercise room, in addition to the waiver of liability.
While there is no guarantee that a court will recognize that an exercise room in a cooperative should not be treated as a commercial gym, a proper form of waiver agreement may help to sway the court to recognize the difference.