New York State Court of Claims

New York State Court of Claims

KOWALSKI v. THE STATE OF NEW YORK, #2008-037-505, Claim No. 108515


Case Information

1 1.The caption has been amended sua sponte to reflect the State of New York as the only proper Defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended sua sponte to reflect the State of New York as the only proper Defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant’s attorney:
Gerald P. Gorman, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo
New York State Attorney General
By: Gregory P. MillerAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 24, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Jan Kowalski alleges in Claim Number 108515 that he was injured as a result of the negligence of the Defendant in the operation, ownership, maintenance and control of weightlifting equipment in the gymnasium on the campus of the State University College at Buffalo (SUCB). The issues at trial were bifurcated and this decision relates solely to the issue of Defendant’s liability.

On November 15, 2002, the date of the alleged incident, Claimant was enrolled as a graduate student at SUCB pursuing a master’s degree in multidisciplinary studies. Claimant’s status as a student permitted him to use the facilities including the weight room in the gymnasium. Claimant testified that at the time of the accident he had been weight lifting for ten years and had used the facilities at SUCB approximately fifteen times since his enrollment in September of 2002. Claimant further testified that on the date of the accident he entered the facility by presenting his identification card to the attendant in the weight room and began his workout routine by using a Smith weight lifting machine[2] for leg exercises. Claimant testified that although he had not previously used this particular machine, he had used other Smith machines more than fifty times in the past as part of his weight lifting routine.
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 [1983]; Basso v Miller, 40 NY2d 233 [1976]). 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 [1961]).

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 [1979]; Mochen v State of New York, 57 AD2d 719 [1977]). 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 [2001]). 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 [2004], quoting Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]).

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 [1999]; DeLuke v State of New York, 169 AD2d 916 [1991]).

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 denied.


November 24, 2008
Buffalo, New York

Judge of the Court of Claims

[2].Claimant and other witnesses described the Smith machine as a weight lifting bar which is attached to a vertical track for safety purposes and operates as a bench press. A video of the machine used by Claimant was introduced into evidence as Claimant’s Exhibit 2.