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Supreme Court, Appellate Division, Third Department, New York.

Norma J. CORRIGAN, Respondent, v. MUSCLEMAKERS INC., Doing Business as Gold's Gym, Appellant.

Decided: February 25, 1999

Before:  MIKOLL, J.P., YESAWICH JR., SPAIN, CARPINELLO and GRAFFEO, JJ. Thuillez, Ford, Gold & Johnson (Michael J. Hutter of counsel), Albany, for appellant. Debra J. Willsey, Albany, for respondent.

Appeal from an order of the Supreme Court (Lang Jr., J.), entered May 11, 1998 in Albany County, which denied defendant's motion for summary judgment dismissing the complaint.

On April 12, 1996, plaintiff joined defendant's health and fitness facility in the Town of Guilderland, Albany County, known as Gold's Gym.   Included in her $400 annual membership fee were three, one-hour sessions with a personal trainer.   On her first visit to the facility, she met with a personal trainer who, in the latter part of their one-hour session, placed her on a treadmill, set the machine at 3.5 miles per hour for 20 minutes and left her unattended.   He did not instruct plaintiff on how to adjust the treadmill's speed, stop the belt or operate the control panel.

Shortly into the exercise, plaintiff drifted back on the belt, unsuccessfully attempted to walk faster and was quickly thrown from the machine and sustained a broken ankle.   At the time of the incident, plaintiff was 49 years old and had never patronized a health facility or gym of this type.   Nor had she ever been on a treadmill.   Plaintiff commenced this negligence action against defendant to recover for the injuries she sustained.   At issue on appeal is the propriety of Supreme Court's order denying defendant's motion for summary judgement.

Equating plaintiff's activity with a sporting event, defendant contends that its duty to plaintiff was lesser than that generally applicable to landowners.   Citing Morgan v. State of New York, 90 N.Y.2d 471, 662 N.Y.S.2d 421, 685 N.E.2d 202, it claims that it needed only to ensure that the conditions of its facility were “as safe as they appeared to be”.   Defendant also claims that plaintiff's voluntary participation in this “athletic activity” warrants dismissal of the complaint under the doctrine of primary assumption of risk.   We are unpersuaded.

 It is true that “[r]elieving an owner or operator of a sporting venue from liability for inherent risks of engaging in a sport is justified when a consenting participant is aware of the risks;  has an appreciation of the nature of the risks;  and voluntarily assumes the risks” (id., at 484, 662 N.Y.S.2d 421, 685 N.E.2d 202).   Under such circumstances, “a premises owner continues to owe ‘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, [the] plaintiff has consented to them and [the] defendant has performed its duty’ ” (id., quoting Turcotte v. Fell, 68 N.Y.2d 432, 439, 510 N.Y.S.2d 49, 502 N.E.2d 964).   In our view, however, the fitness activity undertaken by plaintiff was not a “sporting event” for which this lesser standard of care should be applied.   Moreover, offering only the conclusory affidavit of its general manager, defendant did not establish as a matter of law that the risks associated with the use of the treadmill to plaintiff, a novice, were fully appreciated or perfectly obvious.

In an attempt to establish that plaintiff voluntarily participated in an “athletic” activity and was aware of the inherent risks of using a treadmill, defendant makes repeated references to her status as a “former professional ice skater”.   Had plaintiff been injured while engaging in this type of activity, this fact might be relevant.   What is relevant, is that plaintiff had never been on a treadmill, had not skated professionally for 16 years prior to this incident and had specifically informed the personal trainer that she was “very sedentary” and a newcomer to working out at a gym.   It is undisputed that the personal trainer failed to ensure that plaintiff “understood the treadmill's operation before using it.”   Notably, the operator's manual for the machine states that this is a guideline for safe operation.

 Nor do we find, under the doctrine of primary assumption of risk, that plaintiff assumed the risks inherent in using this piece of equipment.   “Primary assumption of the risk may be applied in cases where there is an elevated risk of danger, typically in sporting and recreational events” (Hofflich v. Mendell, 235 A.D.2d 784, 785, 652 N.Y.S.2d 659;  see, Turcotte v. Fell, supra, at 438-439, 510 N.Y.S.2d 49, 502 N.E.2d 964).   We are unpersuaded that plaintiff's first time on the treadmill falls within the reach of this principle (cf., Hofflich v. Mendell, supra).   As noted, the risk of being ejected from this machine was not readily apparent (cf., Blecher v. Holiday Health & Fitness Ctr. of N.Y., 245 A.D.2d 687, 664 N.Y.S.2d 869).   Under these circumstances, a jury should assess whether plaintiff's injuries are the result of any breach of duty by defendant.

ORDERED that the order is affirmed, with costs.



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