Kevin G. Faley and Andrea M. Alonso
*Originally published in the
New York Law Journal
December 11, 2013

Since 2005, there has been a significant increase in the number of health clubs, gyms and other fitness centers in the United States.1 According to the International Health, Racquet, & Sportsclub Association (IHRSA), the number of fitness centers has grown from 26,830 in 2005 to 30,500 in 2012. Additionally, the number of people with a health club membership has risen from 41.3 million in 2005 to 50.2 million in 2012.

2The most recent statistics demonstrate that 58.5 million Americans used a health club in 2012.3 As more Americans use these facilities, it is important to understand the risks that come along with gym membership and the legal liability these facilities may have.

New York State defines health clubs as:

[A]ny commercial establishment offering instruction, training or assistance and/or the facilities for the preservation, maintenance, encouragement or development of physical fitness or well-being. "Health club" as defined herein shall include, but not be limited to health spas, health studios, gymnasiums, weight control studios, martial arts and self-defense schools or any other commercial establishment offering a similar course of physical training.4

In 2010, New York State had the seventh highest health club participation rate in the United States with a participation rate of 19.1 percent.5 As a result, New York has seen a development in its laws pertaining to health clubs and fitness centers. A recent Court of Appeals case undertook the issue of whether the Legislature intended to hold health clubs liable for failing to use automated external defibrillators (AED) effectively.6 Other major developments in New York State law have involved a health club's duty as a landowner, membership contracts and the assumption of risk doctrine.

Duties of Health Clubs

Duty as a Landowner. New York State holds a landowner liable if an individual is injured as a result of a defective or dangerous condition on the premises. For instance, in Rivera v. Jack LaLanne Fitness Centers, the First Department held that ripples in a health club's carpet constituted an actionable defective condition.7 So with ordinary landlord liabilities, the law requires that the person injured at a health club establish that a defective or dangerous condition existed and that the landowner either created the condition or had actual or constructive notice of its existence in time to fix it before the person's injury.8

Health club owners have "actual notice" of a defective or dangerous condition on their premises when they receive complaints about such condition prior to someone being injured. In Quinn v. Holiday Health & Fitness Centers of New York, the Fourth Department ruled that a health club did not have actual notice of an unknown substance in its stairway because it demonstrated that it did not receive any complaints about the area prior to plaintiff's fall.9

Additionally, a health club owner has "constructive notice" of a defective or dangerous condition where the defect was visible and apparent and existed for a sufficient length of time prior to the accident to allow the health club's employees to discover and fix it.10 The Second Department in Galietta v. New York Sports Club held that a health club did not have constructive notice of a spilled liquid that caused the plaintiff to slip and fall because there was no proof how long the liquid was on the stair. Moreover, "[e]ven if the defendant[] had a general awareness of spilled liquid on the stair, this would be insufficient to establish constructive notice of the particular condition which caused the plaintiff to slip and fall."11

Although a health club's duty as a landowner protects its members from dangerous conditions in the club's facilities, health clubs do not have a duty to protect its members against intentional, unforeseeable and unexpected assaults by other members or third parties. In Ulrich v. Bronx House Community Ctr., the plaintiff's son was injured during a basketball game at defendants' facility when another player punched him in the jaw. The First Department held that the defendants were not liable because the other player's unprovoked and unexpected assault of plaintiff's son could not have been prevented even under "the most intense supervision."12

New York law also dictates that health club owners, as landowners, have a duty to maintain their property in a reasonably safe condition and to warn individuals lawfully on the premises of potentially dangerous conditions that are not readily observable. However, this duty does not extend to instances where a condition is open and obvious, not inherently dangerous and known to the individual affected by it.13

For example, in Blecher v. Holiday Health & Fitness Ctr. of New York, the Third Department held that a health club was not liable for plaintiff's injury because the bar he hit his head on was readily observable. Plaintiff was a member of Holiday Health for approximately a year and had used the pulley machine next to the bar where he injured his head on three to five other occasions prior to his accident. Under these circumstances, Holiday Health did not have a duty to warn plaintiff about the bar.14

Duty to Possess Automated External Defibrillators. Due to the higher risk of heart attack victims at health clubs,15 New York State General Business Law (GBL) §627-a requires that every health club with five hundred members or more:

have on the premises at least one automated external defibrillator and shall have in attendance, at all times during staffed business hours, at least one individual performing employment or individual acting as an authorized volunteer who holds a valid certification of completion of a course in the study of the operation of AEDs and a valid certification of the completion of a course in the training of cardiopulmonary resuscitation provided by a nationally recognized organization or association.16

In Miglino v. Balley, Gregory C. Miglino Jr., plaintiff, sued defendant, Bally Total Fitness after one of defendant's employees, who was trained and certified in cardiopulmonary resuscitation (CPR) and the use of AED, failed to use either method on plaintiff's father. Plaintiff's father subsequently died on defendant's premises.17

The Court of Appeals held that GBL §627-a does not require health clubs to use the AED but merely requires them to maintain an AED on their premises. Additionally, the Miglino court held that the Legislature's intent was to protect health clubs and their employees from the risk of liability for ordinary negligence with respect to the use of AEDs.18 Essentially, Miglino held that health clubs are not liable under GBL §627-a if they fail to use an AED or negligently use an AED in an emergency situation.

Relieving of Liability

Membership Agreements. Under New York State's General Obligation Law (GOL) §5-326, owners and/or operators of pools, gymnasiums, places of public amusement or recreation and similar establishments are prohibited from creating any contract, membership application, ticket of admission or similar writing with users of such facilities, as a result of 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."19

In determining which facilities are subject to GOL §5-326, courts assess whether a facility is instructional or recreational. Where a facility is used for purely instructional purposes, GOL §5-326 is inapplicable. On the other hand, where a facility promotes a recreational pursuit but provides instruction as an additional service, GOL §5-326 applies.20

"In assessing whether a facility is instructional or recreational, courts have examined, inter alia, the organization's name, its certificate of incorporation, its statement of purpose and whether the money it charges is tuition or a fee for use of the facility."21

In Debell v. Wellbridge Club Mgmt., the First Department evaluated how defendant advertised its facility to the public, which services the facility offered and whether defendant charged a fee for the use of its facilities.

The Debell court concluded that the defendant's facility was recreational in nature and, therefore, defendant's agreement with the plaintiff, which relieved it of all liability for its own negligence, was void.22 GOL §5-326 prevents health clubs from evading their liability using membership agreements, which members are required to sign before using their facilities.

Assuming a Risk. In New York State, when a person chooses to engage in a sport or recreational activity, that individual "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."23 The Third Department in Layden v. Plante held that these risks apply to noncompetitive fitness activities one would perform at a health club. However, a person voluntarily engaging in a sport or recreational activity is not deemed to have assumed the risk of "a dangerous condition over and above the usual dangers inherent in the activity" or of "reckless or intentional conduct, or concealed or unreasonably increased risks."24 Finally, some New York State appellate courts have held that when a plaintiff voluntarily assumes the risk inherent in a sport or recreational activity, the defendant is released from all liability, while other appellate courts have held that in such cases defendants may still be held partially liable.25

In Bukowski v. Clarkson Univ., where a plaintiff had previously participated in a weight-lifting exercise program with a trainer and was subsequently injured when performing the program alone, the Third Department declared the plaintiff had assumed the risk inherent in that activity.26 However, in Layden v. Plante, where a plaintiff was injured as a result of a trainer's instructions to continue lifting a heavier weight than plaintiff believed he could handle, the Third Department held that the plaintiff did not assume the unreasonably increased risks attributable to lapses in judgment by the trainer.27 These two cases are prime examples of how similar facts, with slight distinctions, can make the difference in whether a court finds a plaintiff assumed a risk.

Conclusion

As New York residents try to improve their health and remain active, the number of health club memberships will continue to rise. It is imperative that attorneys become familiar with the duties imposed on health clubs and the assumed risks that patrons take by joining one of these facilities. Health clubs are responsible for keeping the premises free from dangerous or defective conditions. Health clubs must also keep an AED on its premises and have at least one employee working who is certified in its use and certified in CPR; however, somewhat incongruously, health clubs are not required by law to use the AED or administer CPR.

A health club cannot relieve itself of liability for its negligence through membership applications or waivers. Finally, health club attendees assume the risks inherent in any fitness activities they voluntarily engage in and this may absolve their health club of any liability.

Andrea M. Alonso and Kevin G. Faley are partners at Morris Duffy Alonso & Faley. Edwar Estrada, a paralegal, assisted in the preparation of this article.

 

Endnotes:
1. About the Industry: Health Clubs Industry Overview, Int'l Health, Racquet, & Sportsclub Ass'n,http://www.ihrsa.org/about-the-industry/ (last updated June 17, 2013); see Lawrence Fagan, Most Current Fitness Industry Statistics, Insight (May 20, 2013),  http://www.gyminsight.com/blog/2013/05/most-current-fitness-industry-statistics/.
2. Id.
3. 58.5 Million Americans Utilize Health Clubs, Int'l Health, Racquet, & Sportsclub Ass'n (May 8, 2013),  http://www.ihrsa.org/media-center/2013/5/8/585-million-americans-utilize-health-club.html; Fagan, supra note 1.
4. N.Y. Pub. Health Law §3000-d (McKinney 2013).
5. Sarah Gaynes, Health Club Membership By State: How Does Yours Stack Up? Huffington Post,  http://www.huffingtonpost.com/2011/09/07/health-club -membership-by-state_n_951442.html#s351678&title=New_York (last updated Nov. 7, 2011).
6. Miglino v. Bally Total Fitness of Greater New York, 20 N.Y.3d 342 (2013).
7. Donnelly v. St. Agnes Cathedral Sch., 106 A.D.3d 773, 773 (2d Dept. 2013); Starr v. Holes, 87 A.D.3d 1395, 1396 (4th Dept. 2011), Oates v. Iacovelli, 80 A.D.3d 1059, 1060 (3d Dept. 2011); Rivera v. Jack LaLanne Fitness Centers, 269 A.D.2d 228, 229 (1st Dept. 2000).
8. Pisano v. Young Women's Christian Ass'n of Brooklyn, 43 A.D.3d 814 (2d Dept. 2007); Gallais-Pradal v. YWCA of Brooklyn, 33 A.D.3d 660 (2d Dept. 2006); Quinn v. Holiday Health & Fitness Centers of New York, 15 A.D.3d 857, 857 (4th Dept. 2005); see Vijayan v. Bally's Total Fitness, 289 A.D.2d 224 (2d Dept. 2001); Rivera v. Jack LaLanne Fitness Centers, 269 A.D.2d 228 (1st Dept. 2000); Guerra v. Howard Beach Fitness Ctr., 934 N.Y.S.2d 34 (Sup. Ct., Kings Cty. 2011).
9. Quinn, 15 A.D.3d 857.
10. Gernat v. State, 23 A.D.3d 1015, 1016, (4th Dept. 2005); see also Quinn, 15 A.D.3d at 857.
11. Galietta v. New York Sports Club, 4 A.D.3d 449, 450 (2d Dept. 2004). Id. (citing Piacquadio v. Recine Realty, 84 N.Y.2d 967, 969 (1994); Gloria v. MGM Emerald Enters., 298 A.D.2d 355, 356 (2d Dept. 2002).
12. Ullrich v. Bronx House Cmty. Ctr., 99 A.D.3d 472, 472 (1st Dept. 2012), Sugarman v. Equinox Holding, 73 A.D.3d 654, 655 (1dt Dept. 2010); Blecher v. Holiday Health & Fitness Ctr. of New York, 245 A.D.2d 687, 687 (3d Dept. 1997); see Harris v. Debbie's Creative Child Care, 87 A.D.3d 615, 616 (2d Dept. 2011).
13. Meisels v. Lucille Roberts Health Clubs , 63 A.D.3d 1020, 1021 (2d Dept. 2009); Caruso v. John St. Fitness Club, 34 A.D.3d 296, 296-97 (1st Dept. 2006); Blecher, 245 A.D.2d at 687.
14. Blecher, 245 A.D.2d 688.
15. New York Bill Jacket, 2004 A.B. 5084, Ch. 186.
16. N.Y. Gen. Bus. Law §627-a (McKinney 2013).
17. Miglino, 20 N.Y.3d at 348-49.
18. Miglino, 20 N.Y.3d at 348-49.
19. N.Y. Gen. Oblig. Law §5-326 (McKinney 2013).
20. Tiede v. Frontier Skydivers, 105 A.D.3d 1357, 1358 (4th Dept. 2013) reargument denied, 216/13,2013 WL 3285082 (June 28, 2013); Tuttle v. TRC Enterprises, 38 A.D.3d 992, 992-93 (3d Dept. 2007);Connolly v. Peninsula Grp., 48 A.D.3d 365, 365 (1st Dept. 2008); Debell v. Wellbridge Club Mgmt., 40 A.D.3d 248, 249 (1st Dept. 2007); Bacchiocchi v. Ranch Parachute Club, 273 A.D.2d 173, 175 (1st Dept. 2000); Evans v. Pikeway, 7 Misc. 3d 348, 350 (Sup. Ct. Nassau Cty. 2004).
21. Tiede, 105 A.D.3d at 1358; Debell, 40 A.D.3d at 249-50; see Winston v. Sharfstein, 65 A.D.3d 1053, 1053-54 (2d Dept. 2009).
22. Debell, 40 A.D.3d at 250.
23. Fenty v. Seven Meadows Farms, No. 2012-05234, Slip op. at 1 (2d Dept. July 10, 2013) (citingMorgan v. State of New York, 90 N.Y.2d 471, 484 (1997); Mendoza v. Village of Greenport, 52 A.D.3d 788 (2d Dept. 2008); Mondelli v. County of Nassau, 49 A.D.3d 826 (2d Dept. 2008); Joseph v. New York Racing Assn., 28 A.D.3d 105 (2d Dept. 2006)); Layden v. Plante, 101 A.D.3d 1540, 1540-41 (3d Dept. 2012); Belvedere v. Holiday Valley, 60 A.D.3d 1459, 1460 (4th Dept. 2009); Finn v. Barbone, 83 A.D.3d 1365, 1365 (3d Dept. 2011); Fenty, No. 2012-05234, at 1; see Rutnik v. Colonie Ctr. Court Club, 249 A.D.2d 873, 874 (3d Dept. 1998); Machowski v. Gallant, 234 A.D.2d 933, 933 (4th Dept. 1996).
24. Layden, 101 A.D.3d at 1541.
25. Menter v. City of Olean, 105 A.D.3d 1405, 1405 (4th Dept. 2013); Marcano v. City of New York, 296 A.D.2d 43, 47, 460 rev'd, 99 N.Y.2d 548 (1st Dept. 2002).
26. Bukowski v. Clarkson Univ., 86 A.D.3d 736, 740 (3d Dept. 2011) (citing Morgan, 90 N.Y.2d at 484) aff'd, 19 N.Y.3d 353 (2012).
27. Layden, 101 A.D.3d at 1541.