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)

Weight lifters (pd)
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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Thank You, Captain Obvious — It Is Improper To Throw Your Records In A Dumpster In Advance Of A Lawsuit

 by:  Peter J. Gallagher (@pjsgallagher)

When most litigators hear the term “spoliation” nowadays, they probably think of emails, servers, document retention policies, and back-up tapes. But the Appellate Division recently reminded us that old-fashioned spoliation is still alive and well (and improper).

In Hess Corporation v. American Gardens Management Company, plaintiff sued various single-purpose entities with which plaintiff had contracted to sell oil and gas. Plaintiff also sued the individual owner of all of these entities, which were essentially judgment proof, arguing that it was entitled to pierce the corporate veil and hold him liable because he had co-mingled funds and fraudulently conveyed and diverted assets from the various corporate entities for his personal use.

During discovery, plaintiff served the individual defendant with a document request. The individual defendant failed to respond and his answer was stricken. He later moved to reinstate his answer, first arguing that he could not answer the discovery request without implicating his Fifth Amendment right against self incrimination (which the court rejected) and then claiming that he did not have many of the documents requested. Based on the latter, the court vacated its prior order and reinstated his answer.

 

Continue reading “Thank You, Captain Obvious — It Is Improper To Throw Your Records In A Dumpster In Advance Of A Lawsuit”