This was originally posted on the SGR Blog.
Was Injury Claim Precluded by Pre-Accident Waiver and Release?
Upon joining a health club, gym or fitness center, new members are regularly and routinely required to sign a waiver or release that exempts the owner/operator from liability for accident or injury claims by the members. But is such exculpation available where a member participates in a 300 pound tire flip class?
Andrew Dinkel IV was injured on February 23, 2017, when he was struck by a truck tire being flipped during an exercise class conducted at Cobalt Fitness, LLC. His back was to the tire that was flipped by two other participants in the class, and the tire, weighing approximately three hundred pounds (300 lbs.) or more, landed on the back and side of Dinkel’s left leg. He ultimately required surgery to repair his left foot/ankle and he remained unable to work on light duty until September 2017. Dinkel returned to full duty as a firefighter in February 2018. He alleged that Cobalt was negligent in failing to: properly organize the tire flip activity in a safe manner; properly organize the members performing the activity; to warn users of the tires about the dangers associated with flipping tires in close proximity to one another; and in failing to have more instructors present to properly supervise and guide the members in proper performance of the tire flip activity.
Cobalt sought summary judgment dismissal of the complaint. And Dinkel sought dismissal of Cobalt’s affirmative defense based upon his signing of a waiver and release form.
In support of its motion, Cobalt submitted the pleadings and the deposition transcripts of Dinkel, Cobalt’s owner, and four non-party witnesses who participated in the class when the accident occurred. Cobalt contended that it was entitled to summary judgment dismissal of the complaint because Dinkel assumed the risk of participating in the tire flip exercise; the alleged dangerous condition was open and obvious; and Dinkel signed a waiver releasing Cobalt from liability. In its answer, Cobalt asserted primary assumption of the risk as its second affirmative defense. Cobalt’s 23rd affirmative defense asserted that Dinkel’s claims were barred by his signing of the membership agreement and online waiver form.
Applying summary judgment principles, this Court determined that Cobalt had not met its burden to entitle it to summary judgment dismissal of the complaint on any of the grounds asserted. Here, with respect to assumption of the risk doctrine and the open and obvious condition, the evidence presented showed questions of material fact essential to the resolution of this action that cannot be resolved upon this motion. Furthermore, the waiver form was inapplicable to the circumstances of this case as a matter of law.
CPLR § 1411, adopted in 1975, 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.”
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. Since the adoption of CPLR 1411, courts have generally restricted the concept of assumption of risk to particular athletic and recreative activities in recognition that such pursuits have enormous social value even while they may involve significantly heightened risks. And the continued application of the doctrine facilitated free and vigorous participation in athletic activities and fosters these socially beneficial activities by shielding coparticipants, activity sponsors or venue owners from potentially crushing liability. Consistent with that justification, the cases applying the doctrine involved a sporting event or recreational activity that was sponsored or otherwise supported by the defendant or occurred in a designated athletic or recreational venue.
With regard to primary assumption of risk, risks in this category are incidental to a relationship of free association between the defendant and the plaintiff in the sense that either party is perfectly free to engage in the activity or not as he wishes. Defendant’s duty under such circumstances 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 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. 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. On the other hand, an important counterweight to an undue interposition of the assumption of risk doctrine is that participants will not be deemed to have assumed the risks of reckless or intentional conduct or concealed or unreasonably increased risks. The applicable standard is whether the conditions caused by the defendant’s negligence were unique and created a dangerous condition over and above the usual dangers that are inherent in the sport.
Some key criteria for the application of the primary assumption of risk doctrine are the plaintiff’s awareness of the risk of harm and that awareness is to be assessed against his skill, background and experience with the activity.
Here, the Court found that the evidence submitted by Cobalt showed that Dinkel became a gym member in mid-January 2017, approximately six weeks before the accident occurred, and that he had never participated in a tire flip exercise prior to the date of incident. Dinkel had taken four or five classes prior to February 23, 2017 and two “on ramp” sessions to teach him various movements necessary to perform cross fit style exercises. None of the prior classes or the “on ramp” sessions included the tire flip. And Dinkel had never engaged in cross fit activities prior to joining the Cobalt facility. While Dinkel testified that he was a member of the New York City Fire Department and a special operations firefighter within the FDNY, he did not testify that he had flipped truck tires as part of his FDNY training or in the performance of his official duties.
The deposition testimony established that the tire flip exercise was part and parcel of an exercise class in which the participating members were required to perform various exercises inside the gym for a period of 60 seconds and then proceed to Cobalt’s parking lot to flip one of the three or four truck tires laid out in the lot. After the tire flip, the participants were to return to the gym and resume the exercises for another 60 seconds. This series of exercises inside the gym and tire flip in the parking lot was to proceed through four rounds. The participating members entered and exited the facility through a large bay door located in the rear of the Cobalt facility. Cobalt’s owner, Elizabeth Seder, was the only instructor supervising the class of somewhere between nine and fifteen participants.
Seder and perhaps one other more experienced “cross fitter” demonstrated the tire flip to the other participants in terms of how to grab the tire lying flat on the blacktop, lift it to a standing position, and then push it, causing it to fall over onto its other side by its own momentum. Dinkel testified that he flipped the tire twice without incident prior to his being struck by a tire in the process of being flipped by two other class participants.
Three or four tires were being flipped by the participants, sometimes simultaneously but depending upon when a member would emerge from inside the gym, and apparently in different directions in the parking lot. There were more class participants than available tires; at most, there were four available tires thereby requiring members to wait their turn to flip a tire of their choosing. The individual tires were of varying but significant weights, and class participants were free to choose to flip whichever tire they chose. Dinkel testified that he chose to flip the lightest tire since he had never engaged in that particular activity.
The tires would land in different spots on the blacktop. The tires sometimes got closer together during the exerciseAnd that a specific tire would not necessarily be in the same spot when a participant re-emerged from inside the gym.
Immediately prior to the occurrence of the incident, Dinkel acknowledged that he was aware that other class participants were flipping tires when he emerged from the gym; however, when he emerged from the gym for what was likely the third time, he was concentrating on the particular class member who was flipping the tire that he wanted to flip. Dinkel had to wait his turn; was looking at the gentleman who was flipping that tire; and the next thing he remembered, he was hit by a different tire being flipped by two female class members working in tandem.
Dinkel acknowledged that he did not look left or right before he stepped into the parking lot from the gym and that he did not notice the women flipping the tire or any other people in the general vicinity of where he was walking as he exited the gym. He also acknowledged that he sent a responsive text message to Seder on March 4, 2017. She had texted plaintiff that she felt “so bad,” and Dinkel responded, “Nah, nothing to feel bad about. I wasn’t paying attention. Was trying to concentrate too much on the workout …” Concerning the text, Dinkel testified that he was “zoned in on getting that next tire flipped”; he was “focused in on the tire that was in front of [him] and … was waiting to flip that tire after the gentleman in front of me was done flipping it.” And further explained that he told Seder that there was nothing to feel bad about because “I appreciate that she was my coach and I was trying to learn how to do Cross Fit.”
Dinkel was asked if he had “an issue with the setup” of the tires in the parking lot and stated that he “would have tried to create positions in which the tires were only going in one direction, and then everybody would have been in line waiting to flip next, when they came outside finishing their workout. So there were no tires being flipped in random directions or they would not lose their original position from where you flipped them originally.” He also testified that “More supervision could have been a lot better.”
The deposition testimony of Seder and the non-party witnesses, plus that of Dinkel, established without dispute that Seder was the only instructor supervising the class and that she was situated either in the garage/bay door area observing the participants both inside and outside the gym or she went back and forth between the inside and outside of the gym. There were no markings or lanes on the blacktop designating where the tires should be positioned or in what direction they should be flipped; Seder did not periodically readjust the tires during the course of the workout or direct that the participants do so when the tires got closer together.And she did not monitor or direct the participants emerging from inside the gym as to when it was his or her turn to flip a tire.
According to the testimony of the non-party witnesses, Seder did not instruct the participants concerning in which direction the tires should be flipped; rather, it was up to the participants to determine which was a better direction in which to flip the tires, depending on the proximity to others engaged in the activity.
The two women who tipped the tire that struck Dinkel testified inconsistently as to whether any specific safety instructions were given to the group about flipping the tire, including ensuring that the surrounding area should be clear before flipping and that they should be aware of others during the tire flip. One did not recall any such instructions being given, nor did she recall if anything was said about keeping the tires separated from each other. The other testified that Seder gave safety instructions, including that the participants should be aware of what was going around them during the tire flip. Another non-party witness testified that she did not remember if they were specifically told to make sure the area was clear before flipping the tire.
One of the two woman described that she and other had already tipped their tire when Dinkel stood in front of it “at the last second”; therefore, they could not stop the momentum of the falling tire. Although she shouted at Dinkel to look out, his back was to the women and he did not realize that she was speaking to him. The other woman testified that she did not see Dinkel at the moment that the two pushed the tire forward so that its momentum would cause it to descend. And the first woman testified that Dinkel was not directly in front of them at that point. According to her and Seder, Dinkel ran in front of the already-falling tire.
Seder could not supply the dimensions of the tires used; nor could she specify the distance between the tires as they were laid out on the blacktop. She offered only that the tires were “a safe distance” apart, but acknowledged that once a tire was flipped, it was moved to a different place. At the time of the incident, Seder explained that the two women were flipping their tire toward the street while the man who was flipping the tire that Dinkel was going to flip was proceeding toward the bay door to the gym —indicating that those two tires were being flipped in perpendicular directions at the same time.
For purposes of determining the extent of the threshold duty of care, knowledge was the sine qua non. The testimony established Dinkel’s undisputed lack of experience in the tire flip activity, lack of markings on the blacktop, lack of instruction as to the direction in which the tires should be flipped and the apparent lack of a coherent plan as to where and how each participant was to wait his or her turn while the available tires were all being flipped as part of the timed workout. That testimony raised material questions of fact as to whether Cobalt’s conduct unreasonably increased the risks involved in the tire-flipping activity and whether Cobalt performed its duty by making the conditions as safe as they appeared to be. Given the discrepancy as to whether the instruction/warning about being aware of one’s surroundings was given, there were also questions of fact as to whether the risk of being struck by a falling truck tire was commonly inherent in the nature of that activity and whether Dinkel knowingly accepted that risk.
And whether a condition was open and obvious could not be divorced from the surrounding circumstances. A condition that is ordinarily apparent to a person making reasonable use of his senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted. And Dinkel testified that he was “zoned in” on the tire flip and concentrating on the timed workout, thereby raising a question of fact as to whether he was distracted from the obvious danger of placing himself in the path of a falling truck tire.
Based upon the foregoing analysis, the Court determined that Cobalt failed to establish its prima facie entitlement to summary judgment as a matter of law on those grounds.
What’s more, the waiver contained in the member ship agreement did not release Cobalt from liability. And Colbalt did not sustain its prima facie burden as to that ground for dismissal of the complaint. So Dinkel’s cross-motion to strike Cobalt’s 23rd affirmative defense was granted.
General Obligations Law provides as follows:
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.
The language in the membership agreement and online waiver agreement sought to relieve Cobalt from its own negligence in that it stated that the signatory/member agreed to “voluntarily waive, release, discharge, and hold harmless Elizabeth Seder, Cobalt Fitness, LLC CrossFit Cobalt, CrossFit, Inc….” from “any liability, claims, actions or rights of action, or damages of any kind related to, arising from, or in any way connected with my participation in CFC fitness programs/classes, including those allegedly attributed to the negligent acts or omission of the above mentioned parties. In signing this document, I fully recognize and understand that if I am hurt, die, or my property is damaged, I am giving up my right to make a claim or file a lawsuit against CFC, even if they negligently or by any other act or omission cause the injury or damage”. There was similar language in the online waiver form as well.
The only way that General Obligations Law would not have applied was if Cobalt’s business was entirely instructional in nature. The record established that Cobalt operated as a gymnasium offering various types of memberships, including an unlimited membership that Dinkel subscribed to at the time of the incident. The unlimited membership included a certain number of what were referred to as “open gym” sessions during which members could use the gym and its equipment as they desired. Although trainers were available for consultation if requested by a member, the open gym sessions provided members with use of the facilities in exchange for their monthly fee.
The classes provided by Cobalt were known as Workout of the Day (WOD). Members were able to take these classes as they wished, whenever the WODs were offered throughout the course of a day. Members were also free not to take the classes; in short, attendance at Cobalt was purely at the discretion and will of the member and not required to attain any sort of certification or to acquire a particular skill, but to exercise vigorously. In addition to the open gym sessions and WODs, Cobalt offered children’s birthday parties, physical therapy services, nutritional services and food services, each at an extra cost.
The WODs/classes did not run for a specified period of time, after which the participants were assessed or were conferred a license, certificate or degree. No member of Cobalt was tested, passed or failed any WOD/class, nor was attendance at any of the WODs/classes taken. And Dinkel did not have to pay an additional cost to attend the WOD during which he was hurt; it was included in the price of his unlimited membership.
Another relevant factor in determining whether a facility was recreational or instructional in nature was the statement of purpose asserted in the certificate of incorporation of the facility. In this case, Cobalt’s stated purpose in its required publication notice was “any lawful purpose or activity.” No mention of its purpose was made in its articles of organization or certificate of publication. Moreover, the question was not whether Dinkel’s activity was instructional or recreational in nature, but the nature of the facility. So, whether or not Dinkel was receiving instruction at the time of his injury was not dispositive of that issue.
For those reasons, the Court determined that, as a matter of law, the Cobalt facility was recreational in nature, rendering the waiver and release inapplicable pursuant to the General Obligations Law and warranting the granting of the relief requested in Dinkel’s motion —which was to strike Cobalt’s 23rd affirmative defense as being without merit.