This is a timely filed claim of Dennis Meyer (hereinafter
“claimant”) based upon the alleged negligence of the State of New
York (hereinafter “defendant”). On November 13, 2008, a bifurcated
trial was held on the issue of liability.
The incident occurred on September 26, 2005, at approximately 9:30 p.m. at the
C.K. Post (hereinafter “Post”) drug treatment facility in Brentwood,
New York. Claimant was a patient at Post at the time of the incident.
The first person to testify was Joseph Lombardi. Mr. Lombardi was also a
patient at Post and had been there about a week before the accident. Mr.
Lombardi had been on the treadmill and when he got off, the treadmill was still
on. The witness noticed claimant attempt to get on the treadmill a couple of
minutes later and watched him fall. Mr. Lombardi described the exercise room as
a basement, “kind of dark”, and a loud radio playing. Mr. Lombardi
stated a state employee would come by, look around inside, turn the radio down
and then leave. When the employee would leave, someone would turn the radio
volume up. Mr. Lombardi described the safety device as an armband and key
connected to the machine and the user. If the user chose to wear the armband,
then the machine would stop if the user stepped or fell off the machine. Mr.
Lombardi said the armband was cut off the safety device.
On cross-examination, the witness said the lighting was sufficient to see
across the room, and down to the floor without problem. The witness conceded
the safety device only worked if it was attached to a person. The device did
not prevent the machine from running on its own. The witness said the state
employee would sit at a desk and only occasionally he would leave to check other
Prior to the incident, claimant had been at Post since September 13, 2005.
Claimant used the treadmill after Joseph Lombardi. Claimant had used this
machine only one other time. He never noticed there was a safety device on this
machine. The supervisor was not present at the time of the incident. Claimant
says that he could not see the treadmill was running because the belt was black
and he could not hear it running because the radio was loud.
On cross-examination, claimant described the treadmill as having a separate on
and off switch to operate the belt. The safety device could only turn the
machine off if the key was pulled from the machine. Claimant testified he does
not remember looking down at the machine, he just stepped onto it and went
As the owner and operator of the gym, the State’s duty is to use
reasonable care in maintaining the property in a reasonably safe condition to
prevent the occurrence of foreseeable injuries (Basso v Miller, 40 NY2d
233; Valentine v State of New York, 192 Misc 2d 706). The duty of care
is limited by claimant's reasonable expectations under the circumstances. The
defendant's obligation in such a situation is to make the premises as safe as
they appear to be so that claimant can fully comprehend and see the risks which
will be assumed (Drew v State of New York, 146 AD2d 847; see also
Walter v State of New York, 185 AD2d 536). A landowner has no duty to
warn of an open and obvious danger that can be readily observed by the use of
one’s senses (Tagle v Jakob, 97 NY2d 165).
In the instant case, there is no evidence to show the treadmill was
malfunctioning and, assuming arguendo a malfunction was proven, that defendant
was aware or should have been aware of it. The treadmill in question had a
separate on/off switch to operate it. There is no evidence Mr. Lombardi ever
turned the machine off when he was finished. The safety device being cut is
irrelevant to the case at bar. The safety device is not the on/off switch for
the machine. In addition, it is clear to the Court, claimant never looked at
the machine before attempting to get on the treadmill.
Based upon the foregoing, the Court finds in favor of defendant and dismisses
the claim. All motions not specifically ruled upon are denied.
Let judgment be entered accordingly.