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Plaintiff Assumed the Risk of Stepping on Running Treadmill

The Second Department determined plaintiff had assumed the risk of injury from stepping on a treadmill the prior user had left running:

The doctrine of primary assumption of risk provides that a voluntary participant in a sporting or recreational activity 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 … . This encompasses risks associated with the construction of the playing field, the activity engaged in, and the surface and any open and obvious conditions on it … . The doctrine has been applied in cases involving injuries sustained in gyms and fitness centers … . Awareness of the risk of engaging in a particular activity is “to be assessed against the background of the skill and experience of the particular plaintiff” … . The doctrine, however, does not serve as a bar to liability if the risk is unassumed, concealed, or unreasonably increased … . * * *

As the risks of using a treadmill were obvious and apparent to the plaintiff, she consented to them, and the defendant discharged its duty of care by making the conditions as safe as they appeared to be … . DiBenedetto Town Sports Intl LLC, 2014 NY Slip Op 03974, 2nd Dept 6-4-14

 

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New Trial Required Because State’s Experts Testified Based On Hearsay... Plaintiff Who Had Right of Way Should Have Been Granted Summary Judgment