New York State Court of Claims

New York State Court of Claims

EBUSOEME v. STATE OF NEW YORK, #2005-028-011, Claim No. 1106799


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
BY: Gwendolyn Hatcher, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 6, 2005

Official citation:

Appellate results:

See also (multicaptioned case)

This is a timely filed Claim for personal injuries sustained by Claimant Joshua

Ebuzoeme on July 18, 2001 as a result of the alleged negligence of the Defendant in the operation, ownership, maintenance and control of weightlifting equipment in the York College fitness center. Trial of this Claim was bifurcated and this decision addresses liability only.
Claimant enrolled as a student at York College in the Fall of 1998 and was as enrolled student on July 18, 2001,
the date of the alleged accident. Claimant's status as a student permitted him to use the facilities including the gymnasium and weight room. Claimant testified that he used the facilities approximately three to four times a week since his enrollment in 1998. Claimant testified that on the date of the accident he entered the facility by presenting his identification to the security guard at the main entrance, walked down the hallway to the weight room and began working out. Claimant further testified that no one was present inside the weight room to assist him in using the equipment and that he failed to sign the "sign in[1]" sheet because he did not have a pen available at that time. Claimant began his workout by warming up on the rowing machine for approximately two to three minutes before switching to the weight lifting equipment. Claimant then continued his workout routine by using the Cybex Smith press machine. The Cybex machine is a weight lifting machine which operates as a bench press and requires weights to be added before use. Claimant testified that he had to adjust the weights on the machine by mounting the weights on each side of the bar as he had done in the past. Claimant could not recall the exact amount of the weight he added to the Cybex machine on the subject date. He further stated that he does not know the weight by poundage but adjusted the weights according to size as he had done on previous occasions. Claimant testified that he had not received any formal training or instructions on the use of the Cybex machine and had learned to use the machine by watching others. On the date of the alleged accident, Claimant did not procure a spotter as suggested by the instruction signs (Exhibit 8) posted on the machine. Claimant testified that after finishing a sequence of lifting, he lifted the weights up to engage them in a locking position and the weights rapidly fell hitting Claimant in the head. Claimant neither recalled whether anyone witnessed the alleged incident nor did he report the accident to York College personnel.
On cross examination, Claimant clarified that he had previously used the Cybex machine on several occasions as part of his weight lifting routine. Claimant described himself as being 5'5" tall and 170 pounds. Although Claimant could not estimate the amount of weight he was lifting on the day of the alleged accident, he testified that the maximum weight he lifted prior to that date was 180 pounds. Claimant stated that he was unaware of any instructions or signs posted on the Cybex machine because he had not noticed them prior to the alleged incident. Claimant testified that prior to the weights falling, he heard a "clicking" or "locking" sound. Claimant stated that based on his previous experience with the machine, this noise meant that the weights would be held safely in place by the machine's locking mechanism.
Claimant acknowledged that he failed to file an incident report or notify York College because he thought the alleged accident was minor.
On re-direct examination, Claimant denied having knowledge that he was required to submit an incident report or notify the College because no one had ever instructed him to do so.

Alvin Epstein, a New York City school system physical education teacher for over 25 years, testified on behalf of the Claimant. Epstein testified that weight lifting equipment and machines require supervision because of the high degree of danger associated with their use. Epstein further testified that in his opinion York College violated a "national standard[2]
" because they failed to provide supervision over the weight lifting equipment in an effort to prevent accidents or injuries from occurring.
On cross examination, Epstein acknowledged that before using a weight lifting machine a person is obligated to read instructions and become familiar with the proper use of the machine. Epstein further acknowledged that there are clearly marked instructions posted on the Cybex machine which explains its use, including a sign that specifically recommends the use of a spotter as a safety precaution ( Exhibit 2, 3, 4, 5, 6, 11).

Claimant introduced the testimony of both Flaubert St. Hilaire, the recreational aide who was on duty at the time of Claimant's alleged injury and Ronald St. John
, the assistant athletic director/ director of facilities and operations for health and physical education at York College through their depositions (Exhibit 12 and 15, respectively). St. Hilaire was employed as a recreational aide for York College for approximately one year prior to the date of Claimant's alleged accident. St. Hilaire acknowledged that he had received no formal training as a recreational aide but learned of his duties through written manuals and by shadowing and observing other recreational aides. St. Hilaire testified that his duties included logging in facility patrons, completing daily safety inspections of the weightlifting and fitness equipment, filing incident reports and if necessary, reporting accidents to management. St. Hilaire stated that he would visually inspect the machines daily or upon the request of a patron. If a machine was not working properly he would post an "out of order" sign on it. St. Hilaire also testified that there are posted instructions on the Cybex machine, but if asked, he would assist patrons in the use of the equipment upon request. St. Hilaire stated that he received training on how to properly use the Cybex machine from a co-worker shortly after the installation of the machine in the facility. St. Hilaire further acknowledged that he was not required to fill out accident reports and that he was not familiar with Claimant or the instant Claim.
St. John testified that the weight lifting equipment, including the Cybex machine, is periodically inspected by a lab technician and inspected daily by a recreational aide who monitors the facility. St. John stated that the only time a machine would require service is when there are reports of malfunctions. St. John testified that the Cybex machine was never repaired prior to July 18, 2001 because there were no complaints of malfunctions with respect to the machine or its locking mechanism. St. John further testified that there were no reports of Claimant's injuries or any incidents regarding the Cybex machine on July 18, 2001.
Defendant's first witness was Steve Bernheim, the president of Sports and Recreation, Inc., a sports and recreation consulting firm
which specializes in risk analysis of sports programs and facilities for New York State municipalities. Bernheim testified that according to his examination of the depositions in the instant Claim, the Cybex machine was in fairly new condition on July 18, 2001. Bernheim further testified that in his opinion the York College weight room is a safe facility because of the presence of instructional signs and safety guidelines posted throughout the facility and the availability of assistance from a recreational aide whose desk is located approximately 12 feet from the entrance to the weight lifting area. Bernheim stated that in his professional opinion Claimant's failure to procure the machine into a locking position would have resulted in the weights falling.
On cross examination, Bernheim testified that the depositions in the instant Claim stated that a recreational aide was available in the facility on July 18, 2001(Exhibit 12, 15) in the event that a party needed assistance with the weight lifting equipment; however, he could not testify as to whether the recreational aide was present at his post for the duration of his shift. Bernheim further testified that in his opinion a spotter may have been able to determine whether the Cybex machine was in the locked position; however, the spotter may not have been able to prevent the weights from falling because of the reclined position of the Claimant and the spacing of the machine.

Defendant called Ronald St. John to testify. St. John testified that the Cybex machine does not necessarily need a spotter because the machine is equipped with safety bumpers which hold the weights in place and assist a party using the machine. St. John testified that the College specifically bought the Cybex machine because of the presence of bumpers as an extra safety precaution. St. John further testified that the York College facility is only open under the supervision of a recreational aide. A party using the facility is required to sign in at the recreational aide's desk before using the facility. St. John stated that the duty of a recreational aide is to man the fitness facility. Their duties also include ensuring that all parties sign in, are wearing proper attire, and using the fitness equipment properly. The recreational aides are available to answer any questions and assist a party in the use of the equipment.
St. John also acknowledged that the Cybex machine was installed in the fitness center of York College approximately six to eight months before the alleged incident and that there had been no complaints concerning the machine prior to Claimant's alleged accident.
On cross examination, St. John again acknowledged the importance of a party to adjust the "bumpers" or bar stops on the machine before use. The purpose of the "bumpers" is to ensure that the weights do not fall if a party fails to properly lock the weight bar in place.

St. John further stated that there are three signs posted on and near the machine regarding the use of bumpers as safety precautions, one sign is posted by the manufacturer and the other two have been posted by York College (Exhibit 2, 3, 5, 11). While St. John acknowledged that the manufacturer's instructions call for a spotter when using the machine, he testified that the bumpers can be used to replace the need for a spotter. St. John testified that a party is not required to take a course before using the weight equipment; however, a party can become familiar with a particular machine by reading the instructions or asking a recreational aide for assistance. St John again emphasized that the presence of a recreational aide in the facility is to visually monitor the equipment to ensure that they are properly functioning. When the recreational aide becomes aware of a problem with a particular machine they are required to record it in the daily activity log (Exhibit 13), and in the event that the aide observed a party having difficulty or improperly using the machine they would be required to intervene and assist. Defendant also called Flaubert St. Hilaire to testify. St. Hilaire testified that he was on duty in his capacity as a recreational aide from 4 to 6 p.m. on July 18, 2001. St. Hilaire's duties included maintaining the equipment in the fitness center and assisting staff, faculty, students and alumni in the use of the equipment during recreation hours. St. Hilaire acknowledged his signature on the daily activity log (Exhibit 13) and stated that the purpose behind the log is for staff, faculty, students and alumni to sign in when using the facility. St. Hilaire further testified that no one reported being hurt in the weight room at York College on July 18, 2001.
On cross examination, St. Hilaire maintained that while he was on duty "no one gained entrance into the weight room without signing in." St. Hilaire acknowledged that although he was stationed on a desk for the duration of his shift, he left his position on numerous occasions in order to check the equipment in the fitness center. St. Hilaire further testified that he could not recall anyone using the Cybex machine on July 18, 2001.

As an owner of the building and grounds, Defendant has a duty to act as a reasonable person would to maintain its premises in a reasonably safe condition (Preston v State of New York, 59 NY2d 997; Basso v Miller, 40 NY2d 233). In connection with its operation of a gymnasium, it must use the same level of care to assure that its equipment is reasonably safe and free from hazards (85 NY Jur 2d, Premises Liability, §87; see also, Gregaydis v Watervliet Civic Chest, 14 AD2d 623).
Defendant is not, however, an insurer, and negligence may not be inferred solely from the happening of an accident (
Tripoli v State of New York, 72 AD2d 823; Mochen v State of New York, 57 AD2d 719). Rather, a claimant must prove that defendant breached a duty of care owned to the claimant and that the breach of duty proximately caused the claimant's injury (Basso v Miller, 40 NY2d 233, supra, at 240-241).
"In premises liability cases alleging an injury caused by a defective condition, the plaintiff must show that the landowner either created the defective condition, or had actual or constructive notice of the defective condition for such a period of time that, in the exercise of reasonable care, it should have corrected it" (
Abrams v Powerhouse Gym Merrick, 284 AD2d 487, 487-488).
The determinative issue concerns our application of the doctrine of assumption of risk. Such doctrine dictates, in general terms, that " 'voluntary participants in sports activities may be held to have consented, by their participation, to those injury-causing events which are known, apparent, or reasonably foreseeable consequences of their participation' " (Regan v State of New York, 237 AD2d 851, 853, lv denied 91 NY2d 802, quoting Conway v Deer Park Union Free School Dist. No. 7, 234 AD2d 332, lv denied 90 NY2d 809; see Turcotte v Fell, 68 NY2d 432, 439; Maddox v City of New York, 66 NY2d 270, 278). So long as a defendant fulfills "a duty to exercise reasonable care, to protect participants from unassumed, concealed or unreasonably increased risks" (Rutnik v Colonie Ctr. Court Club, 249 AD2d 873, 874, lv denied 92 NY2d 808), its application is justified "when the consenting participant is aware of the risk, has appreciation of the nature of the risks and voluntarily assumes the risk" (id. at 874; see Morgan v State of New York, 90 NY2d 471, 485-486). Notably, " ' * * * awareness of risk is not to be determined in a vacuum. It is, rather, to be assessed against the background of the skill and experience of the particular plaintiff' " (Morgan v State of New York, supra at 486, quoting Maddox v City of New York, supra at 278).
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 (
see Morgan v State of New York, 90 NY2d 471, 484, 662 NYS2d 421). However, participants are not deemed to consent to concealed or unreasonably-increased risks (see Morgan v State of New York, supra at 485). Application of the doctrine of assumption of the risk is assessed against the skill and background of the particular participant (see Morgan v State of New York, supra at 486).
claimant bears the burden of proof by a fair preponderance of the credible evidence (see PJI 1:23). The trial court, in its capacity as trier of facts, must view the witnesses and consider their statements upon direct and cross-examination in determining whether each witness is credible and the weight, if any, to be given to the evidence (see PJI 1:8, 1:22; see also Johnson v State of New York, 265 AD2d 652; DeLuke v State of New York, 169 AD2d 916).
Even if Claimant could establish that the Cybex machine was defective, which the Court finds it was not, Claimant has failed to show that the Defendant had actual or constructive notice of a defective condition so that it would have a reasonable opportunity to repair it. Furthermore, Claimant has also failed to establish that the Defendant had a duty to provide a "spotter" or supervise Claimant's weight lifting activity.
The Court does not credit the testimony of Claimant's expert witness because he failed to specify what national standard was violated in regards to Defendant's alleged failure to provide supervision or a "spotter." Moreover, the alleged lack of supervision did not create a "dangerous condition over and above the usual dangers that are inherent in the participation of sporting activities" (Owen v R.J.S. Safety Equip., 79 N.Y.2d 967, 970).
instructions and safety guidelines were visibly posted on and near the Cybex machine, including a sign that clearly stated a spotter or "safety bumpers" must be used during operation of the machine. It is undisputed that Claimant had previously used the machine on numerous occasions so that he was familiar with its operation. Claimant's failure to abide by the clearly posted instructions or seek assistance before using the weight lifting equipment contributed to his injury. Assuming arguendo that a recreational aide was available to assist, the Court accepts Defendant's expert testimony that the accident was not preventable, even with a spotter present, because of the mechanics of the accident as described by Claimant.
Based upon the forgoing analysis, the Court finds that Claimant failed to establish by a preponderance of the credible evidence the existence on any unreasonably dangerous condition or lack of reasonable care. Accordingly, the Claim is hereby dismissed. All motions upon which the Court reserved judgment are denied.
The Clerk of the Court is directed to enter judgment accordingly.

December 6, 2005
Albany, New York

Judge of the Court of Claims

[1]Unless otherwise noted all quotes are from the court's notes or the audio record of the trial
[2] Mr. Epstein did not clarify what particular industry standard was violated.