This was originally posted on the SGR Blog.
Was Owner/Operator Liable for the Injury?
A member walks on a treadmill at a fitness center. The treadmill spontaneously accelerates, causing her to fall. Litigation ensues.
On March 27, 2017, Linda Mermelstein was exercising at a fitness center owned and operated by Campbell Fitness NC, LLC when the treadmill she was using allegedly spontaneously accelerated, causing her to fall off the treadmill and sustain personal injuries. Mermelstein sued to recover damages for personal injuries, alleging that Campbell was negligent in maintaining the premises and the treadmill. After discovery, Campbell moved for summary judgment dismissing the complaint. The Supreme Court granted the motion, and Mermelstein appealed.
Under the common law, a property owner, or a party in possession or control of real property, has a duty to maintain the property in a reasonably safe condition. A landowner has a duty to exercise reasonable care in maintaining its property in a safe condition under all of the circumstances, including the likelihood of injury to others, the seriousness of the potential injuries, the burden of avoiding the risk, and the foreseeability of a potential plaintiff’s presence on the property.
In moving for summary judgment, Campbell had the burden of establishing, prima facie, that it did not create or have actual or constructive notice of the alleged dangerous condition. The issue of whether a dangerous or defective condition exists depended on the facts of each case, and was generally a question of fact for the jury.
A defendant has constructive notice of a dangerous or defective condition when it is visible and apparent, and has existed for a sufficient length of time to afford the defendant a reasonable opportunity to discover and remediate. To meet its initial burden on the issue of lack of constructive notice of an alleged defective condition, a defendant must offer some evidence as to when the subject area was last inspected relative to the time when the incident occurred.
The appeals court found that, contrary to Supreme Court’s determination, Campbell failed to establish, prima facie, that it lacked either actual or constructive notice of the alleged dangerous or defective condition of the treadmill. In support of its motion, Campbell relied upon the deposition testimony of Mermelstein.
As to actual notice, Mermelstein testified that she complained to a front desk employee several days prior to the accident that the treadmill had spontaneously accelerated while she was using it, causing her to quickly get off the machine. No inspection or maintenance records for the treadmill were submitted by Campbell.
One of the owners gave deposition testimony to the effect that Campbell never received any complaints about the treadmill spontaneously accelerating at any time prior to the accident—but that merely raised a question of fact, as well as an issue of credibility, that should be decided by the trier of fact. Thus, Campbell failed to establish, prima facie, that it did not have actual notice of the condition alleged regarding the treadmill.
As to constructive notice, although Campbell relied upon the deposition testimony of one of its owners regarding the general practice of testing and inspecting exercise equipment once a week, it failed to present any specific evidence as to when the treadmill was last inspected relative to the accident. In fact, the owner testified that he did not know when the treadmill was last inspected relative to the accident. Mere reference to general practices, without evidence regarding any specific inspection of the equipment, was insufficient to establish lack of constructive notice. Thus, Campbell failed to establish, prima facie, that the condition alleged did not exist for a sufficient period of time to allow it to discover and remedy that condition.
The evidence relied upon by Campbell failed to establish, prima facie, that no dangerous or defective condition of the kind alleged by Mermelstein existed with respect to the treadmill.