Another Day, Another Lawsuit About Injuries Suffered At A Gym (Another Reason For Me Not To Go To The Gym)

by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)

I have written about the enforceability of waivers in health club membership agreements before, including just last week. Now the Appellate Decision has issued another decision on this same topic, Crossing-Lyons v. Town Sports International, Inc., which nicely illustrates the types of injuries that are covered by these agreements and those that are not.

First, a little background. The two seminal cases on this issue are Stelluti v. Casapenn and Walters v. YMCA , both of which I have written about before.

In Stelluti, plaintiff was injured when the handlebars of her stationary bike dislodged and caused her to fall during a spin class. The New Jersey Supreme Court held that these injuries were covered under the broad release in plaintiff's membership agreement. It reasoned that exercising entails vigorous physical exertion (depending, of course, on the person exercising – I am not sure my time on the stationary bike this morning was terribly vigorous), and that the member assumes some risks — faulty equipment, improper use of equipment, inadequate instruction, inexperience, poor physical condition of the user, or excessive exertion — as a result. While a health club must maintain its premises in a condition safe from known or discoverable defects, it need not ensure the safety of members who voluntarily assume some risk by engaging in strenuous physical activities that have a potential to result in injuries.

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“Young Man, There’s A Place You Can Go . . .” (But That Place Might Not Be Immune From Liability Under New Jersey’s Charitable Immunity Act If You Later Sue For Injuries You Suffered There)

by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)

These are not alternate lyrics to the the classic Village People song, YMCA, but they could be if the song were written by the Appellate Division panel that recently decided Lequerica v. Metropolitan YMCA of the Oranges.

In Lequerica, plaintiff was injured during a group strength and conditioning class at the YMCA. At one point, the instructor had the the class run toward a wall, touch it, and then return to the wall where they started. According to the Appellate Division:

On her return, plaintiff realized she was going too fast, and when she tried to stop she fell forward and hit her head "extremely hard" on the concrete wall in front of her. While running toward the wall, plaintiff was competing with a friend to see who could reach it first. Before she fell, plaintiff put her arm out in front of her friend in an effort to beat her to the wall. Plaintiff testified she was running so fast she felt she would not be able to stop at the wall, that she "tried to stop herself," and that ultimately, she "tripped."

Plaintiff suffered "a concussion, a large scalp laceration, and a left wrist fracture." She sued the YMCA and the instructor.

Defendants moved for summary judgment, arguing that (1) they were immune from liability under the Charitable Immunity Act, and (2) plaintiff could not establish a prima facie case of negligence. Plaintiff opposed the motion, arguing that the YMCA was not covered by the Charitable Immunity Act and that summary judgment was premature because discovery was not yet complete.

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Federal Judge Strikes Down “Flying Spaghetti Monster” (Or At Least A Prisoner’s Claims About His Ability To Worship The “Flying Spaghetti Monster”)

by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)

When appointments are made to the U.S. Supreme Court there is often much talk about the potential justice’s “paper trail” — the articles, briefs, or, if the candidate is already a judge, opinions he or she has written. If Judge John M. Gerrard of the U.S. District Court for the District of Nebraska is ever fortunate enough to be appointed to the Supreme Court, I hope that someone questions him about his recent opinion in Cavanaugh v. Bartelt. The decision does not provide much insight into his “judicial temperament” or his position on any hot button social issues that might come before the Supreme Court. It is just a well written and — not to sound too geeky — enormously entertaining opinion to read.

Cavanaugh was a lawsuit filed by a prisoner in a Nebraska prison who claimed to be a “‘Pastafarian,’ i.e., a believer in the divine ‘Flying Spaghetti Monster’ who practices the religion of ‘FSMism’.” Plaintiff sued prison officials, claiming they were not accommodating his religious requests. Judge Gerrard concluded that FSMism was not a religion under the law, but was instead “a parody, intended to advance an argument about science, the evolution of life, and the place of religion in public education.” While he acknowledged that these were “important issues and FSMism contains a serious argument,” he held that FSMism was “not entitled to protection as a religion.”

Before addressing the legal issues presented by the complaint, Judge Gerrard provided a brief and entertaining history of FSMism. Because it developed as a response to “intelligent design,” Judge Gerrard traced the debate over teaching evolution in public schools from the adoption of state laws banning the teaching of evolution, to the Supreme Court’s rejection of those laws, to the adoption of state laws requiring that schools teach both evolution and “creation science,” to the Supreme Court’s rejection of “creation science” under the Establishment Clause, to the rise of “intelligent design” as an alternative to evolution. Proponents of “intelligent design” claim that the “Earth’s ecosystem displays complexity suggesting intelligent design by a ‘master intellect.” They try to avoid the Establish Clause issues that brought down “creation science” by not expressly identifying the “master intellect” as a deity.

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Supreme Court Issues Important Decision On Truth In Lending Act

by: Peter J. Gallagher (@pjsgallagher)

Please check out an article I wrote for law360.com on the U.S. Supreme Court's recent decision in Jesinoski v. Countrywide Home Loans. Here is the opening paragraph:

On Jan. 13, 2015, the U.S. Supreme Court released its opinion in Jesinoski v. Countrywide Home Loans (No. 13-684) and resolved a circuit split on an important issue arising under the Truth in Lending Act, 15 U.S.C. §1601-1677 (“TILA”). Under TILA, a borrower has the right to rescind certain loans for up to three years after the loan is consummated. To exercise this right, borrowers must “notify the creditor” of their intention to rescind the loan within three years. The question in Jesinoski was whether a borrower satisfies this requirement by sending written notice to a lender of its intent to rescind or whether the borrower must file a lawsuit within the three-year statutory period. In recent years, a circuit split had developed over this issue. In Jesinoski, the Supreme Court resolved this split, holding that written notice is sufficient.

Check out the rest of the article here.

New Jersey Supreme Court Refuses To Hear Challenge To Waiver Rule

by: Peter J. Gallagher

The New Jersey Supreme Court has denied a request by a group of challengers to the so-called Waiver Rule (N.J.A.C. 7:1B-1.1, et seq.) — which allows the New Jersey Department of Environmental Protection (”DEP”) to waive certain environmental regulations on a case-by-case basis — to review an Appellate Division decision upholding the rule. On behalf of amicus New Jersey Business and Industry Association, Porzio helped to defend the Waiver Rule before the Appellate Division.

As we previously reported here, the Waiver Rule is not a blanket waiver of all regulations. Instead, a waiver will only be available when one of four criteria are met: (1) a public emergency has been formally declared; (2) conflicting rules between Federal and State agencies or between State agencies are adversely impacting a project or preventing an activity from proceeding; (3) a net environmental benefit would be achieved; and/or (4) undue hardship is being imposed by the rule requirements. N.J.A.C. 7:1B-2.1. Moreover, the Waiver Rule identifies 13 rules and requirements that cannot be waived under any circumstances.

A group of Appellants challenged the Waiver Rule on several grounds, but the Appellate Division rejected the challenge and held that the Waiver Rule was a proper exercise of the DEP's rule-making authority. The New Jersey Supreme Court has now refused to hear the case, which leaves intact the Appellate Division's decision.