Opinion
No. 103372/05.
2010-08-26
Jeremy CAVOLO, Plaintiff v. ATLAS HEALTH & FITNESS, a/k/a Atlas Gym, and Precor USA, Defendants.
Law Firm of Jonathan D'Agostino & Associates, for Plaintiff. Law Firm of McCabe Collins McGeough & Fowler, for Defendant, Atlas Health & Fitness.
Law Firm of Jonathan D'Agostino & Associates, for Plaintiff. Law Firm of McCabe Collins McGeough & Fowler, for Defendant, Atlas Health & Fitness.
Law Firm of Morrison Mahoney, LLP, for Defendant, Precor USA.
JOSEPH J. MALTESE, J.
Defendants Atlas Health & Fitness a/k/a Atlas Gym (“Atlas”) and Precor USA a/k/a Precor Incorporated's (“Precor”) motions for summary judgment pursuant to CPLR 3212 are granted to the extent that Plaintiff Jeremy Cavolo's complaint is dismissed as to both defendants.
FACTS
This is a product liability action for personal injuries allegedly sustained by the plaintiff Jeremy Cavolo at Atlas Gym on June 3, 2003 when the bar of an exercise machine known as the “Smith Machine” fell onto his head during a brief rest period between lifting (the “Accident”). The Smith Machine allows a weightlifter to do a number of exercises without the need for a “spotter” which, in weight-lifting terms, is another person that stands by in the event the weight-lifter needs help in holding the weights. The bar on which the weights are placed is contained inside of a vertical track that has metal pegs located at different heights off of the ground. The bar itself has hooks located inside the track on either end which, when the bar is rotated, latch onto the pegs to lock it in place. After an exercise is complete, the weightlifter uses their wrists to rotate the bar and securely place it onto a set of pegs at the desired height.
The Smith Machine at issue was manufactured by Precor Incorporated. However, Atlas did not purchase the machine directly from Precor. Instead, Atlas purchased the Smith Machine from a third-party individual named “Sam.” No other information concerning he identity of the seller has been set forth.
Cavolo had been a member and regular patron of Atlas for a number of years and had used the Smith Machine hundreds of times prior to the date of the accident. On June 3, 2003, Cavolo was performing an exercise called a military press. This involves the lifter sitting on a bench directly under the bar with his back upright. The bar is then lowered until it is in front of the weightlifter's face, then raised. Once done, the weightlifter must rotate their wrists to lock the bar onto a set of pegs in the machine. Cavolo had already completed three “sets” of the military press using the Smith Machine and allegedly secured the hooks onto corresponding pegs in order to rest briefly prior to beginning a fourth set when the accident happened.
No other weight-lifters who had used the Smith Machine in question prior to the accident reported having any trouble. After the accident, Konstantinos Siozios (“Siozios”), a co-owner of Atlas, inspected the Smith Machine. Upon finding nothing wrong, other gym members were permitted to and did use the machine that same day without incident. Since the date of the accident, no other incidents involving the Smith Machine have occurred.
Four years prior to the accident, Cavolo reported to Atlas that the bar was not running along the track as smoothly as it should have been. The problem was apparently remedied as there were no further complaints regarding the bar's performance over the next four years. The only other complaint concerning the Smith Machine at issue was from Cavolo and pertained to a tear in the fabric of a bench, which was located under the Smith Machine and not attached or combined with the machine in any way. That complaint was also quickly remedied.
DISCUSSION
Atlas's Motion for Summary Judgment
Atlas, as the operator of the gym, argues that it is entitled to summary judgment dismissing Cavolo's complaint because there was no dangerous condition and, even if a dangerous condition existed, Atlas did not create it and had no actual or constructive notice of its existence.
A motion for summary judgment must be denied if there are “facts sufficient to require a trial of any issue of fact” (CPLR § 3212[b] ). “A movant for summary judgment must demonstrate entitlement to judgment as a matter of law by tendering sufficient evidence to eliminate any material issues of fact.”
“Moreover, in deciding the motion, the court is required to accept the opposing party's version of the facts as true.”
Washington v. Community Mutual Savings Bank, 308 A.D.2d 444, 764 N.Y.S.2d 191 [2d Dept 2003].
Summary judgment is a drastic remedy and “should not be granted where there is any doubt as to the existence of a material and triable issue of fact.”
Rizk v. Cohen, 73 N.Y.2d 98 [1989].
Issue finding, rather than issue determination constitutes the key to the procedure.
Jablonski v. Rapalje, 14 A.D.3d 484, 788 N.Y.S.2d 158 [2d Dept 2005].
In making such an inquiry, the proof must be scrutinized carefully in the light most favorable to the party opposing the motion.
Anyanwu v. Johnson, 276 A.D.2d 572, 714 N.Y.S.2d 882 [2d Dept 2000].
Makaj v. Metro. Transp. Auth., 18 AD3d 625 [2d Dept 2005].
Once the moving party has made a showing of sufficient evidence, the burden shifts to the party opposing summary judgment to put forth evidence in admissible form to establish a triable issue of fact.
Zuckerman v. City of New York, 49 N.Y.2d 557 [1980].
In order to demonstrate a prima facie entitlement to judgment as a matter of law granting summary judgment to the defendants, Atlas must demonstrate that they did not cause or create the conditions that gave rise to the accident. Furthermore, the Atlas must show that they did not know, and in the exercise of reasonable care could not have known, that the condition that caused the accident existed.
Rosado, supra; Buchwald, supra.
Atlas presents sufficient evidence to satisfy their initial burden of establishing that they did not create the hazardous condition. Indeed, Atlas presents evidence that no hazardous condition was present at all and that the accident occurred due to Cavolo's own failure to properly lock the hooks around the pegs.
Siozios inspected the machine afterwards and it was operating properly. The defendant claims that the machine has been in operation without another incident.
Pinero v. Rite Aid of NY, Inc., 99 N.Y.2d 541 [2002]Griffen v. Griswold, 114 A.D.2d 596, 494 N.Y.S.2d 441 [3d Dept 1985].
Atlas has also shown that they did not know and, in the exercise of reasonable care, could not have known, that the allegedly dangerous condition existed prior to the accident. Several weight-lifters had used the machine prior to Cavolo, all without incident. Indeed, nobody had complained about the actual performance of the machine during the entire time it had been operating at Atlas. The safety record of the machine at issue, along with the use of the machine for three sets of lifts by Cavolo himself prior to the Accident, establishes that Atlas did not have actual or constructive notice of the allegedly dangerous condition prior to the Accident.
Ebuzoeme v. City Univ. of NY, 2005 N.Y. Slip Op 52256U [Court of Claims, 2005].
Since Atlas has satisfied its initial burden, the burden shifts to Cavolo to put forth evidence that establishes the existence of a triable issue of fact.
Zuckerman, supra.
Cavolo fails to satisfy his burden of raising a triable issue of fact that Atlas created the hazardous condition, or had actual or constructive knowledge of the condition's existence. Mere speculation as to what could have caused the bar to fall, other than plaintiff's own mishandling of the machine, is insufficient to raise a triable issue of fact.
Indeed, Cavolo has failed to even define what, if any, malfunction could have caused the bar to fall. The only explanation Cavolo has proffered for the bar falling is the general allegation that the hooking mechanism was not “properly installed and maintained.”
Dennehy–Murphy v. Nor–Topia Serv. Ctr., Inc., 2009 N.Y. Slip Op 2744, 2 [2d Dept 2009]; Breuer v. Wal–Mart Stores, Inc., 289 A.D.2d 276, 734 N.Y.S.2d 204 [2d Dept 2001].
¶ 3, Plaintiff's Affirmation in Opposition.
Cavolo points to his two prior complaints about the machine as sufficient evidence to establish that a triable issue of fact exists as to whether Atlas properly maintained the machine. However, one of two problems Cavolo reported concerned a ripped workout bench that was not part of the machine at issue. The other reported problem was that the track was not sufficiently greased to allow the bar to slide as easily as it should have. This reported problem occurred over four years prior to the date of the accident. Since Cavolo's allegations merely speculate as to what could have caused the bar to fall and how Atlas was, or should have been, aware of the allegedly dangerous condition, Cavolo has failed to satisfy his burden of raising a triable issue of fact. As such, Atlas is entitled to summary judgment dismissing Cavolo's claims against it.
Precor's Motion for Summary Judgment
Precor, the manufacturer and original seller of Smith Machines, argues that it is entitled to summary judgment dismissing Cavolo's complaint against it since Precor was reasonable in its manufacture and sale of the machine, the machine was not defectively designed, and Precor did not fail to properly warn users of the machine as to the inherent dangers involved.
In order to prove a prima facie case of negligence, a plaintiff must establish that: (1) the defendant owed a duty to the plaintiff; (2) defendant breached that duty; and (3) defendant's breach proximately caused the plaintiff's injury.
The only issue here is whether Precor breached the duty it owed to Cavolo.
Solomon v. City of New York, 66 N.Y.2d 1026 [1985].
To establish a prima facie case in a strict products liability action predicated on a design defect, a plaintiff must show that the manufacturer marketed a product which was not reasonably safe in its design, that it was feasible to design the product in a safer manner, and that the defective design was a substantial factor in causing the plaintiff's injury.
Magadan v. Interlake Packaging Corp., 45 A.D.3d 650, 845 N.Y.S.2d 443 [2d Dept 2007].
The plaintiff is under an obligation to present evidence that the product, as designed, was not reasonably safe because there was a substantial likelihood of harm and it was feasible to design the product in a safer manner. The defendant manufacturer, on the other hand, may present evidence in opposition seeking to show that the product is a safe product-that is, one whose utility outweighs its risks when the product has been designed so that the risks are reduced to the greatest extent possible while retaining the product's inherent usefulness at an acceptable cost. The question for the jury, then, is whether after weighing the evidence and balancing the product's risks against its utility and cost, it can be concluded that the product as designed is not reasonably safe.
Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102 [1983].
Where a court, after considering the relevant facts and risk-utility factors, determines that the plaintiff has failed to make out a prima facie case of a design defect, the claim should not be submitted to the jury.
Scarangella v. Thomas Built Buses, Inc., 93 N.Y.2d 655 [1999].
Defective Design and Manufacture
Precor satisfies its initial burden of establishing that it did not design a defective machine, could not have made a safer design without reducing the machine's usefulness, and adequately warned potential users of the machine about the inherent risks involved.
Precor's design was not defective or unreasonably dangerous under the risk-utility analysis detailed in Voss. Thousands of the Smith Machines, designed identically to the Smith Machine at issue, have been manufactured. No specific defects in the design or manufacture have been alleged, other than Cavolo's general allegation that the bar somehow fell from its perch, and that the fall was not a result of his failure to properly latch the hooks onto the pegs. No allegations have been made that Precor diverged from any industry, organizational, or governmental standard in the manufacture of the Smith Machine at issue.
The Smith Machine is a free weight exercise machine that was designed to allow the user to load weights onto the bar and perform various exercises without assistance. The lack of a need for assistance is achieved through the hooks at either end of the bar that the user can then control to suspend the bar by a simple rotation of the wrists. There has been no evidence presented that the hooking mechanism malfunctioned or had an inherent design defect. While all free weights have the inherent risk of the weight falling due to gravity, the Smith Machine has the substantial added utility of removing the need for another individual to stand close by at all times. The Smith Machine's versatility is also an added utility because a user can do numerous types of exercises with just one machine.
Other than Cavolo, there have been no other complaints about the machine's condition, and no other user has claimed an injury due to its design. Siozios inspected the machine after the Accident and, upon determining that the machine was operating properly, allowed other weight-lifters to use the machine shortly thereafter. The defendants claim that the machine has been operating without issue ever since.
In light of the above-mentioned facts, Precor has satisfied its burden of establishing that the machine, as designed, was not unreasonably dangerous, did not have a defect when it entered the stream of commerce, and could not have been designed in a safer way while preserving its utility.
Voss, supra.
The burden now falls on Cavolo to establish the existence of a triable issue of fact. Cavolo fails to satisfy his burden of establishing that a triable issue of fact exists as to whether Precor acted unreasonably in the design, manufacture or sale of the Smith Machine at issue.
Ordinarily, the question of whether a particular product is defective or dangerous, or could have been designed in a safer way is one left to the jury to decide.
However, such cases usually include expert testimony detailing the pitfalls of a particular product design as well as explanations as to how the design could have been made safer.
Voss, supra.
Here, no expert has been presented and Cavolo himself has utterly failed to offer any evidence to show that the Smith Machine's design was defective or that it could have been made safer. Indeed, Cavolo does not specify, in any way, what departure from reasonable standards constitutes Precor's alleged defective design. The mere fact that bar fell, by itself, does not constitute sufficient evidence to raise a triable issue of fact as to whether Precor was negligent in its design, manufacture, and sale of the machine.
Roberts v. Cybex International, Inc., 2009 N.Y. Slip Op 30977(U), 26 (Sup.Ct., Kings County, Apr. 27, 2009).
Dennehy–Murphy, supra; Breuer, supra.
After considering the relevant facts and risk-utility factors, Cavolo has failed to make out a prima facie case of a design defect. As such, Precor is entitled to summary judgment dismissing Cavolo's negligence and strict product liability causes of action.
Scarangella; supra.
Failure to Adequately Warn
Precor argues that it is entitled to summary judgment dismissing Cavolo's complaint against it since Precor did not fail to properly warn users of the machine as to the inherent dangers involved and Cavolo was an experienced user of the Smith Machine.
A product may be defective as a result of inadequate warnings relating to the product.
It is well established that “a manufacturer has a duty to warn against latent dangers resulting from foreseeable uses of its product of which it knew or should have known.”
Voss, supra.
“The nature of the warning and to whom it should be given depend upon a number of factors, including the harm that may result from use of the product without the warnings, the reliability and adverse interest of the person to whom notice is given, the kind of product involved and the burden in disseminating the warning.”
Liriano v. Hobart Corp., 92 N.Y.2d 232 [1998];Smith v. Stark, 67 N.Y.2d 693 [1986].
As a defendant's liability will not arise from a breach of duty alone, plaintiff must show, in addition, that the failure to warn was “a substantial cause of the events which produced the injury.”
Cover v. Cohen, 61 N.Y.2d 261 [1984].
Billsborrow v. Dow Chem., U.S.A., 177 A.D.2d 7, 579 N.Y.S.2d 728 [2d Dept 1992].
Where the injured party was fully aware of the hazards through general knowledge, observation or common sense, lack of a warning about that danger may well obviate the failure to warn as a legal cause of an injury resulting from that danger.
Thus, it may well be the case that a given risk is not “obvious,” in the sense of precluding any duty to warn, but that nevertheless, because the risk was well understood by the plaintiff, a warning would have made no difference.
Liriano, supra.
Roberts; supra.
Precor satisfies its initial burden of demonstrating that any additional warning would not have made any difference because Cavolo's familiarity with the machine meant that any risk resulting from its use was well understood.
Precor's submissions establish that Cavolo was aware of the danger inherent in exercising with considerable weights. Cavolo used the machine at issue countless times over the six year period that he visited Atlas and was familiar with its operation. Cavolo describes himself as an “experienced” user of the machine at issue. He did not use a spotter. Moreover, he was aware of the need to secure the hooks to the pegs by rotating the bar to relieve the weight off his arms. Under these circumstances, Cavolo was certainly aware of the hazard of being struck by the bar and, thus, a warning that the hooks might not have been fully locked onto the pegs would not have added anything to the appreciation of this hazard. Therefore, the need to fully hook the bar onto the pegs to prevent such an occurrence was open and obvious. It is well settled that there is no duty to warn a user who, through common knowledge or learning, is already aware of a specific hazard.
Smith, supra.
The burden now shifts to Cavolo to establish the existence of a triable issue of fact as to whether Precor failed to warn users of the Smith Machine of the dangers presented by such use. Cavolo fails to satisfy this burden.
Cavolo relies on the lack of personal instruction as to how the Smith Machine was supposed to be operated in order to show that a triable issue exists as to whether he was inadequately warned. While this may be compelling had the accident occurred during his first few visits to the gym, Cavolo had certainly acquainted himself with the proper use of the Smith Machine, as well as its hazards, through the six years and likely hundreds of times he had used the machine before.
Given that Cavolo was well aware of the dangers presented by any failure to properly secure the hooks of the bar, Precor is entitled to summary judgment dismissing Cavolo's negligence and strict products liability causes of action to the extent they are grounded on defendant's alleged failure to warn.
Accordingly, it is hereby:
ORDERED, that the motions of defendants, Atlas Health & Fitness a/k/a Atlas Gym and Precor USA (Precor Incorporated), for summary judgment dismissing the complaint of plaintiff, Jeremy Cavolo, are granted. The clerk is directed to enter judgment in favor of the defendants and to dismiss the plaintiff's complaint; and it is further
ORDERED, that since both Atlas and Precor have been awarded summary judgment, the cross-claims for indemnification between Atlas and Precor are dismissed as moot.