Was Fitness Center Liable For Failure to Maintain Track?
Victoria Siesto sued to recover damages for personal injuries allegedly sustained as a result of an alleged trip and fall accident at the gym complex located at 34 Jamaica Avenue, Port Jefferson Station, New York, which was operated and managed by AJ Merone Fitness Incorporated. Merone moved for an order dismissing the complaint. Merone moved to dismiss the complaint.
On August 4, 2016, at approximately 6:15 pm, Siesto and her husband, Matthew Siesto, were working out at the Game Day Sports Performance gym. Siesto had been attending that facility since the beginning of June and was attending twice a day, five days a week. While running on a turf surface in the gym Siesto tripped and fell resulting in a high-grade partial tear of a ligament in her right ankle.
Siesto testified she had attended classes at the gym twice a day since June of 2016. She had been a member of other gyms, previously attending once a day, every day. She further testified she had no complaints with the classes or the turf and had not heard of any complaints from others. At the time of her accident in August, she was wearing sneakers she had purchased in June for the classes and reported they had not worn. The classes, for the most part, were self-directed and classes were not organized.
Siesto testified she stretched as a warmup prior to working out; her husband was exercising with her and witnessed the accident and was behind her. She testified that Adam Merone, the gym owner, and a trainer named Martino, were at the other side of the gym. While running on the turf in a shuttle exercise her right foot went under a six-inch lift in the turf causing her to fall. She testified, “There was approximately six inches of the turf that was lifted up. So, at this wall, as my foot got caught underneath it, as I was about to pivot to sprint to the other side, that’s when I heard a snap.”
Siesto and her husband did not take any photos. She did not see the lifted turf as she ran to the wall and her pivot did not cause the turf to lift. Siesto was looking out to make sure she did not run into anyone. She described the turf at her deposition as “lifted up. It was curved in.” Siesto heard her ankle snap, felt pain, and fell right to the ground. Her husband, Merone and Martino came over to her after the fall. While she was on the ground, she did not see what caused her accident– it was not until she got up that she saw that she tripped on the lifted turf. Siesto tried to run again after falling but could not. She stated her accident happened where the pieces of turf meet, and besides being lifted up it was not torn or otherwise missing.
Merone, the gym’s owner, installed the turf, on which the accident occurred, by himself, with the assistance of others, soon after signing a lease for the gym. He purchased the turf from SportsFacility.com. The turf was installed on a concrete floor with Turf Bond which was a glue adhesive and turf tape. Merone supervised a small group of student athletes he trained in installing the turf. After it was installed, he placed weights on it and let it dry. They tested the field by playing dodge ball and running on it. There was no air conditioning or humidifier in the gym, there was heating. Merone received no complaints about the turf prior to the accident. Merone relied on feedback from coaches who visited the gym to opine on the turf’s standards. Merone would do agility cuts in high traffic areas to test it. Clients signed consent forms.
Merone testified that from thirty (30) feet away “out of the corner of [his] eye” he saw [Siesto] trip over her own two feet.” Merone saw her jog and saw when she went to stop to turn and then she fell. Merone ran over to her after she fell. After telling him she rolled her ankle Merone advised she stay down. Merone observed the turf “was flat, and it was perfectly fine.” There was nothing on the turf. Although the gym had cameras they were overwritten. There were no photos of the turf from the time of the accident. There was no accident report made and no written protocol for turf inspection.
Martino was an assistant training coach working for Merone from 2015 through 2018. During that time Martino assisted in installing the turf field. He described installing the turf in a similar manner to Merone, except that certain pieces had to be cut. Martino testified that he would rake the turf, about once a month, “just like you would a lawn.” He further testified that it was field turf with a rubber bottom.
Martino did not see Siesto fall, but he did hear her fall, he was fifteen yards away. Martino ran to grab Siesto’s husband. Although he did not witness the fall, Martino “think[s] she kind of fell over her own two feet, but [he’s] not too sure.” Martino testified she was not near a seam. He inspected the area where she fell, “there was nothing in the area. There [were] no seams.” No maintenance was done to the turf and he never witnessed turf coming off the floor. He testified that member DeMeo was training with Merone that day and she was doing shuttle runs, about ten to fifteen yards away from Siesto. Martino was unsure if inspection records were kept of the turf or if there was a written protocol. He did not take any photos or statements about the accident.
DeMeo was a student athlete who trained at Merone’s gym. She also worked there for a three-month period. DeMeo testified that she had never seen the turf lifted. She further testified that no one ever complained about the turf. There were no other accidents on the turf that she knew of. DeMeo testified she witnessed Siesto’s accident, she didn’t see how she fell or that she tripped on anything. Thirty minutes after the accident DeMeo ran over the same area as the accident and did not see anything wrong with it. She never experienced the turf lifting.
Siesto’s husband averred that he did not witness her fall but was alerted by Martino. He further averred that he “observed that there was approximately six (6) inches of turf that was lifted up and curved in.” He affirmed that his wife told him that she injured her ankle when she fell because she got caught underneath the six-inch lift in the turf.
CPLR 1411 provides in pertinent part that, “[i]n any action to recover damages for personal injury … the culpable conduct attributable to the claimant … 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 … bears to the culpable conduct which caused the damages” .
One of the theories advanced by the gym to bar Siesto from recovering damages was assumption of the risk. Despite enactment of CPLR 1411, courts have held that a limited vestige of the assumption of the risk doctrine—referred to as `primary’ assumption of the risk—survived the enactment of CPLR 1411 as a defense to tort recovery in cases involving certain types of athletic or recreational activities. But since the adoption of CPLR 1411, the concept of assumption of the risk to particular athletic and recreational activities has been generally been limited in recognition that such pursuits have enormous social value even while they may involve significantly heightened risks. So the continued application of the doctrine facilitated free and vigorous participation in athletic activities and fostered those socially beneficial activities by shielding coparticipants, activity sponsors or venue owners from potentially crushing liability.
Pursuant to the doctrine of primary assumption of risk, a voluntary participant in a sporting or recreational activity consents to those commonly appreciated risks that are inherent in and arise out of the nature of the sport generally and flow from such participation. The doctrine applies to inherent risks related to the construction of the playing field or surface and encompasses risks involving less than optimal conditions. The doctrine did not apply because the issue in contention, whether there was a six-inch lift in the turf, was not inherent in turf. This was not a grass field. On the contrary, a man-made surface, turf is the opposite of grass, the user has an expectation of levelness. Further, in running on turf no one is expecting a six-inch lift that curves in. In short, that was a defect, and a defect voided the doctrine.
The doctrine of primary assumption of risk does not exculpate a landowner from liability for ordinary negligence in maintaining a premises. Thus, the doctrine does not necessarily absolve landowners of liability where they have allowed certain defects to persist. Here, the “six-inch lift” at dispute invoked the doctrine’s applicability to defects, as there was a distinction between accidents resulting from premises having fallen into disrepair and those resulting from features of a premise. As to the condition presented on the facts of the case, the “six inch lift” was a defect, and the application of the doctrine of primary assumption of risk was inappropriate. Here, the testimony conflicted as to whether the six-inch lift even existed. So the gym failed to establish as a matter of law that the defect of the artificial turf was open and obvious. Further, there was no written protocol to inspect or maintain the field and, except for monthly raking, the turf received no other maintenance . The gym owner could not prove whether or not the accident was the result of negligence in maintaining the field.
An owner or tenant in possession of realty owes a duty to maintain the property in a reasonably safe condition. In this case, to impose liability upon the gym for Siesto’s fall, there must be evidence that a dangerous or defective condition existed, and that the gym had actual or constructive notice of the condition and failed to remedy it within a reasonable time. Whether a dangerous or defective condition existed on the property of another so as to create liability depended on the peculiar facts and circumstances of each case and was generally a question of fact for the jury.
The possessor of real property has a duty to maintain that property in a reasonably safe condition. But there is no duty to protect or warn against an open and obvious condition, which as a matter of law was not inherently dangerous. And 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 person is distracted.
Here, there was conflicting testimony as to the defect. Siesto testified that there was a six-inch lift in the turf and that lift was curved in. Merone, Martino, and DeMeo, upon inspecting the turf after the accident, testified that the turf was flat. Those disputed facts were ripe for a jury’s resolution. Accordingly, viewed in the light most favorable to Siesto, as the non-movant, a triable issue of fact was raised as to whether the defect was trivial– and the gym failed to establish its prima facie entitlement to summary judgment as a matter of law. And, taking into consideration all of the evidence presented, including time, place and circumstances of Siesto’s fall, it could not be said that the defect was trivial as a matter of law and therefore not actionable. The gym failed to meet its prima facie burden. So it was unnecessary to determine whether Siesto’ss papers submitted in opposition were sufficient to raise a triable issue of fact.
When a party moves to dismiss a complaint, the standard is whether the pleading states a cause of action, not whether the proponent of the pleading has a cause of action. In considering such a motion, the court must accept the facts as alleged in the complaint as true, accord plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within a cognizable legal theory, If court considers evidentiary material, the criterion then becomes whether the proponent of the pleading has a cause of action, not whether he has stated one. The motion must be denied unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it. Here, the evidentiary material submitted by the gym failed to demonstrate that Siesto did not have a cause of action to recover damages for personal injury. As such, the gym’s motion for dismissal was denied.