Claimant indicated that it was necessary to adjust the weight on the machine by
mounting weights on each side of the bar and on that date he placed one hundred
fifteen pounds on each side of the fifteen pound bar which resulted in a total
weight of two hundred forty-five pounds. Claimant’s lifting routine on
that machine involved unlocking the weighted bar, placing it on his shoulders
while standing, then squatting to a sitting position and returning to a standing
position. During the third sequence of lifting, the machine rocked backward and
forward causing Claimant to fall to the floor with the bar on his shoulders
resulting in his injuries. Claimant acknowledged that he immediately walked out
of the weight room and failed to file an incident report or notify SUCB
officials of the accident because he was embarrassed. However, he returned to
the facility a few weeks later to videotape the machine and to confer with the
attendant who allegedly witnessed the incident. Claimant alleges in his claim
that the machine was not properly anchored to the floor causing the instability
which resulted in his injuries.
Robert C. Sugarman, Ph.D., PE, a human factors specialist testified for
Claimant as an expert witness. Dr. Sugarman stated that he reviewed
Claimant’s deposition testimony, the videotape of the subject machine and
written materials regarding Smith machines in general and opined that the
instability experienced by Claimant resulted from the base of the machine not
being flat on the floor when it was in use on the date of the accident. On
cross-examination, Dr. Sugarman acknowledged that he did not examine the Smith
machine or conduct any studies of the machine and did not review any studies
performed by others. Dr. Sugarman further acknowledged that he has never seen a
Smith machine in operation and has never used one himself.
The first witness for Defendant was Terrence D. Bitka, assistant strength and
conditioning coach and assistant football coach at SUCB for twenty-three years.
Mr. Bitka testified that he has been weight lifting since the 1970's and is
familiar with Smith weight lifting machines. He also viewed the video of the
subject machine and found it to be operational, without restrictions. He stated
that he has never seen a Smith machine anchored to the floor and he knows from
experience that the machines move when in use.
Defendant also called Donald Grasso, a twenty-five-year employee of a local
retail fitness and recreation equipment company, to testify. Mr. Grasso
testified that he has installed over one hundred Smith machines in the Western
New York area and is certified by various manufacturers to service Smith weight
lifting machines. He viewed the video of the machine and stated that it appeared
to be in proper working order. He also testified that Smith machines should not
be secured to the floor and will move when in use. On cross-examination he
acknowledged that the Smith machine should not rock back and forth and should be
stable on the floor when not in use.
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 owed to the
claimant and that the breach of duty proximately caused the claimant’s
injury (Basso v Miller, supra at 240-241). Furthermore, “[i]n
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 ). To constitute constructive notice, “a defect must be
visible and apparent and it must exist for a sufficient length of time prior to
the accident to permit a landowner to discover and remedy it” (Morrow v
Ashley, 3 AD3d 619, 620 , quoting Gordon v American Museum of
Natural History, 67 NY2d 836, 837 ).
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 the trier of
fact, 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 ).
The evidence presented does not persuade the Court that Defendant breached a
duty of care. Even if Claimant could establish that the Smith machine was
defective, which the Court finds that he did not, Claimant has failed to show
that Defendant had actual or constructive notice of a defective condition so
that it would have a reasonable opportunity to discover it and repair it. The
gravamen of his claim is that the Smith weight lifting machine should have been
anchored to the weight room floor and that the failure by Defendant to do so
constitutes negligence. However, the proof in this record is that Smith machines
are not anchored to the floor.
Based upon the foregoing, the Court finds that Claimant failed to establish by
a preponderance of the credible evidence that Defendant was negligent.
Accordingly, the claim is dismissed. All motions not heretofore ruled upon are
LET JUDGMENT BE ENTERED ACCORDINGLY.