New York's Cooperative and Condominium Community

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Fighting Over Fitness Faults

May a tenant recover damages for an injury suffered in the exercise facility of a co-op where the tenant has signed an exercise room membership contract relieving the co-op of any and all liability? Is a co-op negligent when it does not provide a storage area for movable exercise equipment in its exercise room? These were the questions in Jason Roer v. 150 West End Avenue Owners Corp.

Jason Roer brought an action seeking damages for personal injuries sustained on June 15, 2008, in the basement exercise room of the apartment building where he and his wife reside, located at 150 West End Avenue in Manhattan. Roer claimed that while exercising on a treadmill in the exercise room, he was injured by a loose exercise ball. He alleged that his injuries were caused by the negligence of defendants: 150 West End Avenue Owners Corp., the owner of the premises; Cooper Square Realty, the co-op’s managing agent; and Carol Sarnoff, a building resident.

The record presented to the court contained a video of surveillance camera footage depicting the exercise room at the time of the accident. The video showed Roer jogging on a treadmill. An exercise ball was in a stationary position immediately to the right of Roer and the treadmill. Sarnoff, who was also in the exercise room, walked up to Roer and briefly greeted him. As she passed Roer, she rolled the ball out of her way and toward a weight machine several feet behind the treadmill. After Sarnoff rolled the ball, the ball slowly rebounded toward the treadmill Roer was on. Less than one minute later, the exercise ball got sucked under the belt of the treadmill. The rear of the treadmill was lifted off the ground, propelling the machine forward several feet, where it hit the wall, causing Roer to fall.

Specifically, Roer alleged that the co-op failed to take reasonable measures to ensure that the exercise ball would be secured when not in use. Further, Roer alleged that Sarnoff was negligent in her placement of the exercise ball when she moved it out of her way.

The co-op and Sarnoff each moved for summary judgment, a legal mechanism by which a party asks the court to dismiss all of the claims before it because there are no issues of fact that precluded a grant of judgment in that party’s favor.

The co-op offered several reasons why Roer’s complaint should be dismissed. First, Roer’s claim was overly speculative because even if a rack or other storage existed for the ball, it may not have been secured by the last person to use it. Second, the mere presence of the ball on the floor was not the proximate cause of Roer’s accident; rather, it was the movement of the ball toward the treadmill, which was not the responsibility of the co-op. Third, the co-op could not be held liable for Roer’s accident because Roer signed a waiver. Lastly, the co-op argued that the manner of the accident was entirely unforeseeable.

Sarnoff argued that she was entitled to summary judgment because there was no evidence to support a finding that she was negligent as she merely moved the exercise ball out of her way. She also asserted that the accident, as it occurred, was completely unforeseeable.

In order to recover on a claim for negligence, Roer would have to show that there was a duty on the part of the defendants owed to Roer, that the defendants breached this duty, that Roer was injured, and that the defendants’ breach was the proximate cause of Roer’s injuries. In other words, that the injury would not have occurred in the absence of the defendants’ actions.

The court also addressed the “forseeability” arguments and explained that the Court of Appeals, New York’s highest court, previously observed in another case that “foreseeability of risk is an essential element of a fault based negligence cause of action because the community deems a person at fault only when the injury-producing occurrence is one that could have been anticipated.” In other words, “although the precise manner in which the harm occurred need not be foreseeable, liability does not attach unless the harm is within the class of reasonably foreseeable hazards that the duty exists to prevent.”

The issue of foreseeability, stated the court, may only be resolved on a motion for summary judgment when “there is only a single inference that can be drawn from the undisputed facts.” Here, the court found that the issue of whether the occurrence that caused Roer’s injuries was “naturally associated with the defendants’ breach of their alleged duty” was a disputable issue of fact and could not have been decided on summary motion. The court opined that it was possible for a rational fact finder to decide the issue in favor of either of the parties. Thus, summary judgment was inappropriate.

Additionally, with respect to defendant Sarnoff, the court discussed that the Court of Appeals had declared in another case that, “where the acts of a third person intervene between the defendant’s conduct and the plaintiff’s injury, the causal connection is not automatically severed. In such a case, liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant’s negligence...these issues are generally for the fact finder to resolve.”

Lastly, the court rejected the co-op’s argument that the exercise room membership contract signed by Roer relieved the co-op of any and all liability. The contract language provided as follows: “The undersigned hereby waives to the fullest extent permitted by law any and all claims which I/we may have against the Corporation, its directors, officers, agents and employees of any associated party, arising out of our use of the facilities, and injuries sustained in, or near the exercise room premises.”

The court explained that such a waiver would not be enforceable because there was a statute in New York stating that any contract that exempts the owner or operator of a gym from liability for damages caused by its own negligence was “void as against public policy and wholly unenforceable.”


Comments: A general waiver of liability for injuries that occur in the exercise room of a co-op may not be enforceable by law. Under New York statutory law, any contractual provision that exempts the owner or operator of an exercise room for liability for damages caused by its own negligence is unenforceable.

Therefore, the contract that the co-op required its shareholders to sign as a prerequisite for using the exercise room may not be enforced under all circumstances. It is imperative that co-op (and condo) boards using these general waivers of liability consult with their legal advisers to ensure that the agreements give the board the greatest protection available, and to make sure boards understand that full and complete protection may not exist.

Additionally, this case highlights that when the acts of a third person intervene, the connection between alleged wrongdoers is not automatically severed. In such a case, liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the alleged negligence of the co-op or condo. Thus, even if another resident (such as Sarnoff) or outside actor breaks the chain of causation, the issue will still be whether the exercise room was operated in a safe and reasonable manner.

Finally, there is no indication in the decision about whether the co-op’s insurance carrier provided a defense or whether the actions described allowed the insurance carrier to disclaim liability or defend pursuant to a reservation of rights (we note that the court filings indicate that a carrier may have been involved). It is advisable that boards have their insurance professionals review their policies to ensure that there is coverage and that the board comply with all requirements of the carrier concerning operation of the exercise facility.


For Plaintiff:
Hochheiser Hochheiser & Inwood
For Defendant:
For Co-op and Cooper Square: Lawrence, Worden, Rainis & Bard
For Sarnoff:
Law Offices of Robert P. Tusa


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