Guins v Streb, Inc.

[*1] Guins v Streb, Inc. 2020 NY Slip Op 51046(U) Decided on September 14, 2020 Supreme Court, Bronx County Armstrong, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 14, 2020
Supreme Court, Bronx County

Shana Guins, Plaintiff,

against

Streb, Inc., Defendant.



34004/2018E
Adrian N. Armstrong, J.

The following papers numbered ____ to ___were read on these motions (Seq. No. 1) noticed on _______and duly submitted as No.on the Motion Calendar of __

Sequence No. 1 Doc. Nos.

Notice of Motion—Exhibits and Affidavits Annexed 21-32

Cross Motion—Exhibits and Affidavits Annexed 33-36

Answering Affidavit and Exhibits, Memorandum of Law 40-41

Reply Affidavit 42

Upon the foregoing papers, the motion and cross-motion listed above are decided in accordance with the annexed decision and order.

Upon the foregoing papers, the motion of the defendant Streb, Inc. (hereinafter, "Streb") for summary judgment dismissing the complaint, and the cross-motion of the plaintiff for an order granting the plaintiff summary judgment against defendant on the issue of liability, striking the defendant's affirmative defense of assumption of risk, and precluding the defendant from asserting an affirmative defense of release, are decided as follows.

On April 2, 2018, Shana Guins, who was then 32 years-old, 5' 3" in height and weighed 180 pounds, was rendered quadriplegic when she was injured during an "Intro to Acrobatics" class at defendant Streb's gym while attempting to perform a forward flip (also known as a dive roll) from a mini-trampoline at the direction of a Streb employee, non-party Arianna Dunmire (hereinafter "Dunmire"). The dive roll involved bouncing on a trampoline and then landing on a one foot thick mat. Plaintiff had undergone thoracic surgery in 2001 in connection with severe scoliosis. She had participated in various gym and pole dancing classes before suffering the subject accident.

Plaintiff testified at her examination before trial that she took a class at defendant's gym prior to the class during which she was injured. The first class was "the Pop class," which it involved free-falling, trampoline and tumbling. The tumbling involved a mini trampoline and a mat, on which a forward roll was performed—the same maneuver which plaintiff undertook before she was injured in the subsequent class. Admittedly, she expressed no concerns to the [*2]instructor about the activity or her ability to perform it. In the second class, the instructor was approximately 8 to 10 feet away when she began the activity. She did not recall if the instructor said anything to her as she approached the trampoline. When the plaintiff reached the trampoline, she hopped with both legs on the trampoline, bounced on the trampoline, and tumbled forward. She did not recall what she did with her hands. She tumbled, made contact with the one foot thick mat, and felt a crack in her neck at the end of the tumble.

Defendant points to certain statements made to medical staff after the accident, which plaintiff now denies, to the effect that she was tired from having taken other classes prior to the injury, and that she was also tired from having spent Saturday night drinking heavily. Defendant also relies on the testimony of the instructor Dunmire. Ms. Dunmire testified that she was a substitute teacher at the defendant's facility. She asserted that plaintiff appeared "strong" and had successfully completed the prior class, including performing a forward roll. The testimony of Ms. Dunmire and Ms. Joseph, her supervisor, defendant argues, reflect that Dunmire was a moderate term employee with significant training at Streb. Albeit not the regular teacher for the introduction to acrobatics class, she had substituted to teach the class many times before, had taken the class as part of her training, and had followed the Streb protocol of conducting an initial meeting with the students, warm ups and then the actual exercises. Defendant argues that plaintiff's injury was an unfortunate accident, which was part of the foreseeable risks involved in acrobatics classes, and was not caused by any negligence on the part of the defendant.

In opposition, plaintiff argues that Dunmire did not hold any certification in the fields of physical fitness, gymnastics or acrobatics, had never competed or performed in those fields, and had never coached or taught gymnastics, acrobatics or fitness before commencing working for defendant several years earlier.

Plaintiff also relies on the expert affidavit of Beth Gardner, the owner of a gymnastics [FN1] training facility in Temple, Texas, who is a National Instructor for USA Gymnastics in State, Regional and National Congresses. Gardner has been a gymnastics coach for thirty (30) years, served on the USA Gymnastics Safety Review Board, and holds numerous certifications and has published articles in the field of gymnastics. Gardner's opinion was based on the depositions and the photographs taken of the set-up of the mini-trampoline and mats. Gardner opined that the supervision and training provided to plaintiff during her class by Dunmire did not meet the level of care required by industry standards. She opined that a dive roll is not appropriate for beginners, and that defendant failed to train plaintiff to safely perform a dive roll from a mini-trampoline to a lower surface. Specifically, "[t]he skill level of the dive roll from mini-tramp to a lower surface is a much higher level skill than a novice should be attempting . . . It is my opinion that this happened in Shana's case as she was asked to participate in skills she had not adequately progressed, including but not limited to the dive roll. Other more experienced students within her class may have been better prepared to perform the dive roll, but she had neither the time nor the experience in the gym to perform such a high-level tumbling or [*3]trampoline skill." Further, there was no testing to verify skill level, and there was no warning of the dangers of performing on a trampoline generally or of performing a dive roll specifically.

In reply, defendant submits an expert report by Miles Avery, an expert, who opines that a dive role, contrary to Gardner's expert report, is in fact an entry-level or beginners maneuver, and that the defendant met or exceeded industry standards.

Enforceability of Waiver/Release

As a threshold issue, it is not disputed that plaintiff signed a waiver of liability form upon entering the gym, although plaintiff states that she did not read the form and was unaware that it contained a waiver of liability. The waiver extended to the negligent acts of the defendant and its employees. Plaintiff argues that the alleged waiver and release is unenforceable pursuant to General Obligations Law ("GOL") § 5-326.

GOL § 5-326 voids as against public policy any waiver by the owner or operator of a "gymnasium" (as well as other "places of amusement") "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 . . . " The statute, however does not apply to instructional courses taken by gymnasium users who pay a fee and participate in organized classes. In this regard, cases have drawn a distinction between activities involving amusement (as to which a waiver of liability is void), as opposed to participation in a course of instruction (as to which a waiver of liability is not void under the statute). (Hsu v Krav Maga NYC, LLC, 138 AD3d 463, 464, 29 N.Y.S.3d 307, 309 [1st Dept. 2016] [defendant's self-defense classes were instructional, and other recreational uses were ancillary to defendant's instructional purpose, and thus waiver was not barred by GOL § 5-326 from exacting a release from participants]; Lemoine v. Cornell Univ., 2 AD3d 1017, 1017, 769 N.Y.S.2d 313, 314 [3d Dept. 2003] [dismissing complaint for injury which occurred during the first session of a seven-week basic rock climbing course, as program was instructional and waiver was thus not void]; Baschuk v. Diver's Way Scuba, 209 AD2d 369, 370, 618 N.Y.S.2d 428, 429 [2d Dept. 1994] [private swimming pool was used for instructional, not recreational or amusement, purposes; tuition fee paid for a course of instruction is not analogous to the use fee for recreational facilities contemplated by the statute].) "It is undisputed that General Obligations Law § 5-326 does not bar enforcement of [a] release as defendant's facility is an instructional, and not a recreational, one." (Kim v. Harry Hanson, Inc., 122 AD3d 529, 530, 997 N.Y.S.2d 391, 392 [2014] [injury occurred as a result of personal trainer's alleged negligent instruction and supervision of plaintiff in the lifting of an excessive amount of weight].)

Plaintiff assumes in her argument that her use of the defendant's facility was "recreational." Whether the usage was recreational or instructional is a factual issue which was not established by the plaintiff as a matter of law. In view of the foregoing, plaintiff has not established a prima facie case on her cross-motion seeking an order holding that any waiver is void as a matter of law under GOL § 5-326.

In the alternative, plaintiff argues that the affirmative defense of release is waived unless it is raised in a pre-answer motion to dismiss or in a responsive pleading. (CPLR 3211[e].) Plaintiff argues that by failing to assert waiver and release as an affirmative defense, the defendant did not give notice to the plaintiff of the defense, and therefore the plaintiff was not afforded an opportunity to conduct discovery on this issue, resulting in prejudice.

The effect of an unpleaded defense raised in connection with a summary judgment motion has been considered in Horst v Brown (72 AD3d 434, 436, 900 N.Y.S.2d 13, 15 [1st [*4]Dept. 2010].) In that case, the First Department held as follows:

"[W]hen a defendant fails to plead an affirmative defense, as required by CPLR 3211 (e) and 3018 (b), but nevertheless asserts that defense in connection with a motion for summary judgment, the waiver is said to be retracted and the court can grant, when the defendant is the movant, or deny, when the defendant is the opponent, summary judgment based upon the unpleaded affirmative defense (see Lerwick v Kelsey, 24 AD3d 918, 919-920, 806 NYS2d 732 [2005]; Allen v Matthews, 266 AD2d 782, 784, 699 NYS2d 166 [1999]; Adsit v Quantum Chem. Corp., 199 AD2d 899, 605 NYS2d 788 [1993]). The threshold inquiry is whether in considering the unpleaded defense, the opponent of the defense is prejudiced thereby (see BMX Wordlwide v Coppola N.Y.C., 287 AD2d 383, 731 NYS2d 701 [2001]; Allen v Matthews, 266 AD2d 782, 784, 699 NYS2d 166 [1999]; Seaboard Sur. Co. v Nigro, Bros. 222 AD2d 574, 635 NYS2d 296 [1995]; Rogoff v San Juan Racing Assn., 77 AD2d 831, 431 NYS2d 16 [1980], affd 54 NY2d 883, 429 NE2d 418, 444 NYS2d 911 [1981])." (Emphasis added.)

The defendant has not opposed that part of the motion which seeks to dismiss the defense of waiver as unplead, and fails to counter the plaintiff's argument that consideration of the defense at this juncture is prejudicial. Accordingly, the Court grants that part of the cross-motion to dismiss the unplead defense to the extent of holding that defendant is barred from raising the defense of waiver at trial.

Assumption of Risk

The defendant argues that the complaint must be dismissed under the doctrine of assumption of the risk. Defendant argues that plaintiff was sufficiently experienced to understand the risks involved, and was injured solely as a result of her own actions in failing to properly perform the forward roll. Plaintiff argues that she was injured solely as a result of defendant's negligence in that its employee Dunmire (1) did not advise her of the risk of injury; (2) did not advise her of precautions to take to prevent injury; (3) failed to show her ways to safely learn and progress the dive roll so as to prevent serious injury; and (4) failed to "spot" her or stand in a position close enough to her so that she could assist her with the proper form of the forward flip.

The court's function on this motion for summary judgment is issue finding rather than issue determination. (Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395 [1957]). "[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. . . .Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. . . . Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action." (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986] [citations omitted].)

Since summary judgment is a drastic remedy, it should not be granted where there is any doubt as to the existence of a triable issue. (Rotuba Extruders v. Ceppos, 46 NY2d 223 [1978].) The burden on the movant is a heavy one, and the facts must be viewed in the light most favorable to the non-moving party. (Jacobsen v. New York City Health & Hosps. Corp., 22 NY3d 824 [2014].)

Assumption of risk applies [FN2] to certain types of athletic or recreational activities, and holds that plaintiff's acceptance of a known risk inherent in the activity negates a duty on the part of the defendant to safeguard the plaintiff from that risk. (Custodi v Town of Amherst, 20 NY3d 83, 87, 980 NE2d 933, 957 NYS2d 268 [2012]; Morgan v State of New York, 90 NY2d 471, 484, 685 N.E.2d 202, 662 N.Y.S.2d 421 [1997] ["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"].) On the other hand, the doctrine of assumption of risk does not bar recovery where the injury results from the reckless or intentional conduct of others, risks that are concealed, or unreasonably enhanced risks. (Custodi v Town of Amherst, at 88).

In support of its motion, defendant argues that the same day of the accident, plaintiff had taken a prior class with the same exact activity, and performed the exercise without any difficulties and made no complaints. This as well as defendant's other submissions raise a prima facie case. (Marcano v. City of New York, 99 NY2d 548, 549 [2002] ["Plaintiff assumed the risk of injury when he swung on, and subsequently fell off, an exercise apparatus constructed over a concrete floor."]; see Rosenblatt v St. George Health & Racquetball Assoc., LLC, 119 AD3d 45, 56, 984 NYS2d 401 [2d Dept. 2014] [plaintiff, who voluntarily sat on an exercise ball during a body sculpting class, assumed the inherent risk that the ball would roll or rotate and cause her to fall, despite her claim that she had never used an exercise ball before].)

In opposition, however, plaintiff submits expert testimony that raises an issue of fact as to defendant's negligence, which is not barred by the doctrine of the assumption of risk. (Serin v Soulcycle Holdings, LLC, 145 AD3d 468, 469, 41 N.Y.S.3d 714, 714-715 [1st Dept. 2016] [issues of fact existed as to whether defendants were negligent in failing to properly instruct plaintiff, a first-time spin cycler, in the operation of the cycle and of the nature of the risks involved, and whether plaintiff assumed concealed risks].) In this regard, plaintiff raises issues of fact as to whether the forward roll as taught was appropriate for beginners, and whether, given the skill set required to perform a forward roll safely, sufficient instruction and guidance was provided to the plaintiff.

While plaintiff evidently successfully completed the same forward roll in an earlier class, plaintiff's expert raised issues of fact as to whether the plaintiff had sufficiently progressed to the point where she could perform a forward roll on her own with minimal supervision. Plaintiff has successfully raised an issue as to whether the instructor on duty misjudged plaintiff's ability to perform the maneuver. (See Mathis v. New York Health Club, 261 AD2d 345, 346 [1st Dept. 1999] [factual issues were raised as to whether plaintiff's injury, although inherent in weight training, was unreasonably augmented by culpable misjudgment by trainer as to plaintiff's capacity to bear so much weight].)

To the extent that defendant's expert opines that the forward roll is in fact a simple, beginner's move, this contrary expert opinion raises issues of fact for the jury to resolve. Where conflicting expert testimony is presented, the jury is entitled to accept one expert's opinion and reject that of another expert. (Bohan v DeLucia, 178 AD3d 999, 116 N.Y.S.3d 315 [2d Dept. [*5]2019].)

Accordingly, it is hereby,

ORDERED that defendant's motion is denied, and it is further

ORDERED that the cross-motion is granted only to the extent of holding that defendant is barred from raising the defense of waiver at trial, and is otherwise denied.

This constitutes the Decision and Order of the Court.

Dated: September 14, 2020

Adrian Armstrong, A.J.S.C. Footnotes

Footnote 1:The experts for both sides appear to be qualified as experts in gymnastics. To the extent that plaintiff was injured while performing acrobatics, there appears to be a distinction without a difference between gymnastics and acrobatics in terms of safety and instructional protocols. Absent expert testimony establishing such a difference, this Court treats the field of gymnastics as encompassing the same safety and instructional protocols.

Footnote 2:Consideration of assumption of risk doctrine is separate from consideration of the waiver previously discussed. (Garnett v Strike Holdings LLC, 131 AD3d 817, 15 N.Y.S.3d 786 [1st Dept. 2015] [considering assumption of risk after finding that waiver was void].)