DIANNE A. LAYDEN et al., Appellants,
ANGELA PLANTE et al., Respondents.
Calendar Date: October 19, 2012
LaFave, Wein & Frament, PLLC, Guilderland (Robert F. Axisa of counsel), for appellants.
Epstein, Gialleonardo & Rayhill, Latham (Jeffrey T. Culkin of counsel), for Angela Plante, respondent.
Thorn, Gershon, Tymann & Bonnanni, LLP, Albany (Maureen Bonanni of counsel), for Deborah W. Greenfield, respondent.
Before: Mercure, J.P., Malone Jr., Kavanagh, Stein and Garry, JJ.
MEMORANDUM AND ORDER
Appeal from an order of the Supreme Court (Devine, J.), entered September 19, 2011 in Albany County, which, among other things, granted defendants' motions for summary judgment dismissing the complaint.
Plaintiff Dianne A. Layden (hereinafter plaintiff) participated in a training session with defendant Angela Plante, a certified personal trainer, at No Limits Fitness, a fitness center owned by defendant Deborah W. Greenfield. Plaintiff advised the trainer before the session that she had a history of back problems and a herniated disc. The trainer then instructed plaintiff in a program of weight-lifting moves that plaintiff performed under her supervision. Two days later, plaintiff used the trainer's written instructions to repeat the program without supervision. While performing a maneuver called a Smith squat, plaintiff experienced lower back pain, and ultimately thereafter underwent surgery to correct two herniated discs with fragments. Plaintiff and her husband, derivatively, commenced this personal injury action alleging that the injury to her back was caused by the trainer's improper supervision and instruction, by Greenfield's negligence in failing to provide a safe place and properly trained staff, and also upon the doctrine of respondeat superior based on the trainer's acts as an agent or employee. Defendants each moved for summary judgment. Supreme Court granted the motions and dismissed the complaint, based upon plaintiff's assumption of the risk. Plaintiffs appeal.
The doctrine of assumption of risk provides that a person who voluntarily participates in recreational or athletic activities is deemed to consent to the "commonly appreciated risk[s]" inherent in that activity (Anand v Kapoor, 15 N.Y.3d 946, 948 ; see Morgan v State of New York, 90 N.Y.2d 471, 484 ). However, a participant does not assume risks resulting from "a dangerous condition over and above the usual dangers inherent in the activity" (Myers v Friends of Shenendehowa Crew, Inc., 31 A.D.3d 853, 854  [internal quotation marks and citations omitted]; see Custodi v Town of Amherst, 20 N.Y.3d 83, ___, 2012 NY Slip Op 07225, *3 ). As application of the doctrine undermines the principles of comparative causation, it "must be closely circumscribed" and has therefore been limited to apply only "in the context of pursuits both unusually risky and beneficial that the defendant has in some nonculpable way enabled" (Trupia v Lake George Cent. School Dist., 14 N.Y.3d 392, 395, 396  [emphasis added]; see Shay v Contento, 92 A.D.3d 994, 995 ).
Initially, noting that assumption of risk has been applied to the use of exercise apparatus, we reject plaintiffs' contention that the doctrine does not apply to the noncompetitive fitness activity in which plaintiff was engaged (see Marcano v City of New York, 99 N.Y.2d 548, 549 ). Further, plaintiff's own testimony established that she had previously participated in weight-lifting exercise programs — including a prior program designed by the trainer — and that she knew that back injuries are an inherent risk of such activities. Accordingly, we find that defendants met their initial burden on summary judgment to establish on a prima facie basis that plaintiff knew of the risks, appreciated their nature and voluntarily assumed them (see Morgan v State of New York, 90 N.Y.2d at 484-485; Papa v Russo, 279 A.D.2d 744, 745 , lv denied 99 N.Y.2d 507 ).
However, noting that "[t]he application of the doctrine of assumption of risk is generally a question of fact to be resolved by a jury" (McGrath v Shenendehowa Cent. Sch. Dist., 76 A.D.3d 755, 757 ; see Pantalone v Talcott, 52 A.D.3d 1148, 1149 ), we find triable issues of fact presented as to whether the trainer's actions "unreasonably heightened the risks to which [plaintiff] was exposed" beyond those usually inherent in weight-lifting (Myers v Friends of Shenendehowa Crew, Inc., 31 A.D.3d at 856). Plaintiffs presented the affidavits of two personal training experts who opined that the Smith squat, even when properly performed, is contraindicated for a person with a herniated disc as it causes "direct vertical loading of the spinal column" and places "extreme stress" on the lower back, and thus should not have been recommended for plaintiff. The experts further averred that safe performance of the maneuver requires keeping the back straight, and that the trainer erred in instructing plaintiff to "stick her butt out" during the exercise. The trainer acknowledged that she gave plaintiff this instruction but explained that she meant that plaintiff should move her body backward while keeping her back straight . The trainer further testified that whether the Smith squat is dangerous for a person with a back injury "depends on the form" used by the exerciser and acknowledged that, although she knew plaintiff had a herniated disc, she did not warn plaintiff that the exercise posed any risk to her back. Based on this testimony, plaintiffs raised triable issues of fact as to whether the trainer's direction to perform the Smith squat, her allegedly improper instructions, or both, served to unreasonably increase the risk to which plaintiff was exposed (see Corica v Rocking Horse Ranch, Inc., 84 A.D.3d 1566, 1568 ; Myers v Friends of Shenendehowa Crew, Inc., 31 A.D.3d at 856; Mathis v New York Health Club, 261 A.D.2d 345, 346 ; compare Lee v Maloney, 270 A.D.2d 689, 691 ).
As an alternate ground for affirmance, Greenfield contends that there is no evidence that she breached a duty that proximately caused plaintiff's injury (see generally Derdiarian v Felix Contr. Corp., 51 N.Y.2d 308, 315 ). Plaintiffs do not assert that plaintiff's injury resulted from faulty equipment or any other property defect at the fitness center, and although one of plaintiffs' experts described multiple alleged inadequacies in the fitness center's safety procedures, there was no showing that these caused or contributed to plaintiff's injury. Instead, both experts averred without equivocation that the trainer caused the injury by instructing plaintiff to perform the Smith squat despite her back condition. Thus, no direct negligence was shown, and Greenfield may be held liable only if the trainer's negligence may be imputed under a theory of respondeat superior. As to this doctrine, Greenfield contends that there is no derivative liability because the trainer was an independent contractor rather than an employee (see Rackowski v Realty USA, 82 A.D.3d 1475, 1476-1477 ; Birch v McGhee, 79 A.D.3d 1296, 1297-1298 ). This determination requires analysis of the extent of the fitness center's power to regulate the manner in which the trainer performed her work, and the parties' conflicting evidence poses factual questions as to this issue, barring summary determination (see Roberts v El-Hajal, 23 A.D.3d 733, 733 ; Meyer v Martin, 16 A.D.3d 632, 633-634 ; Mason v Spendiff, 238 A.D.2d 780, 781 ; compare Harjes v Parisio, 1 A.D.3d 680, 681-682 , lv denied 1 N.Y.3d 508 ).
Finally, we find the release that Greenfield proffers to be unenforceable. An agreement that seeks to release a defendant from the consequences of his or her own negligence must "plainly and precisely" state that it extends this far (Rigney v Ichabod Crane Cent. School Dist., 59 A.D.3d 842, 843  [internal quotation marks and citations omitted]; see Lago v Krollage, 78 N.Y.2d 95, 99-100 ; Gross v Sweet, 49 N.Y.2d 102, 110 ). The release at issue here makes no unequivocal reference to any negligence or fault of the fitness center employees or agents, but merely enumerates activities on plaintiff's part that will not lead to liability, and then provides in general terms that the fitness center is not liable for "any claims, demands, injuries, damages or actions" resulting from use of the facility. This release does not bar plaintiffs' claim (see Rigney v ...