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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Let Sleeping Dogs Lie . . . Just Not In A Hallway Where They Might Create A Dangerous Condition?

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

Sleeping dog (pd)When is a sleeping dog a dangerous condition? This is the burning question that the Appellate Division answered in Parella v. Compeau.

In Parella, plaintiff attended Christmas dinner at a friend's house along with approximately 20 other guests. After the second course, she got up from her chair to put her dish in the kitchen sink and check on her child who was in an another room. To do so, she had to walk behind several seated guests. She did not have to ask anyone to move until she got to the last guest in the row. That guest moved her chair in and plaintiff made a move familiar to anyone who has been to a crowded holiday dinner — she "lifted [her] glass and plate, turned her back to the wall and shuffled her feet to pass behind [the] chair." "As she cleared the chair, plaintiff turned right to enter the hall toward the kitchen, and fell." 

What caused her fall was a "tan, fairly large dog" that was "lying in the hallway, past the threshold of the dining room." The dog did not belong to defendants, the owners of the house and the hosts of the party, and was one of two dogs in the house for the party. When plaintiff fell, the wine glass she was holding broke, cutting her finger and severing a tendon. Plaintiff sued, alleging that defendants failed to warn of her of a dangerous condition — the dog — in their home. The trial court granted summary judgment to defendants and plaintiff appealed.

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Climbing A Light Pole Is Incidental To Fixing The Light At The Top, Therefore Property Owner Not Liable For Independent Contractor’s Injuries

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

Parking lot lights (pd)On this blog I have occasionally written about the duty owed by landowners to, among others, visitors and trespassers and folks walking along a landowner's sweetgum-spiky-seed-pod-riddled sidewalk. In Pisieczko v. The Children's Hospital of Philadelphia, the Appellate Division addressed a similar situation — the duty owed by a landowner to an independent contractor performing work on its property. 

In Pisiaczko, plaintiff was an independent contractor who worked for defendant "doing odd jobs, such as repairing different fixtures, changing lights, and installing tiles." In this capacity, he was hired by defendant to repair lights, which were "affixed to wooden poles" and located in one of defendant's parking lots. Defendant provided no guidance or supervision to plaintiff. Before beginning his work, plaintiff pushed on one of the wooden poles to make sure it was sturdy. When it did not move, he took a ladder, leaned it against the pole, and extended it to approximately two feet below the light fixture. He secured the ladder with straps around the pole. Unfortunately, while plaintiff was on the ladder testing the fixture, the pole broke. Plaintiff jumped off the ladder from about 20 feet to avoid falling into barbed wire. He injured his heel in the process.

Plaintiff sued. He alleged that the pole was rotten inside, which caused it to break. (The parties agreed that the rot was not visible before the pole broke.) Defendant moved for summary judgment, arguing that it was not liable for plaintiff's damages because the decision to place the ladder against the pole was incident to the specific work plaintiff was hired to perform.  The trial court agreed and granted the motion. Plaintiff appealed.

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Clark W. Griswold Would Be Proud: Citing Importance Of Summer Vacations, Family Part Permits Parent To Take Child Abroad

by:  Peter J. Gallagher (@pjsgallagher)

I loved the movie National Lampoon's Vacation as a kid but I did not truly appreciate it until I had children of my own and experienced family vacations from the parent perspective. This perspective may have been most eloquently summarized by Clark W. Griswold when he finally snaps near the end of his family's journey to Wally World:

I think you're all [expletive deleted] in the head. We're ten hours from the [expletive deleted] fun park and you want to bail out. Well I'll tell you something. This is no longer a vacation. It's a quest. It's a quest for fun. You're gonna have fun, and I'm gonna have fun . . . We're all gonna have so much [expletive deleted] fun we're gonna need plastic surgery to remove our [expletive deleted] smiles! You'll be whistling 'Zip-A-Dee Doo-Dah' out of your [expletive deleted]! I must be crazy! I'm on a pilgrimage to see a moose. Praise Marty Moose! Holy [expletive deleted]!

[For a similar take on family vacations, you can also check out Louis CK who describes his personal "vacation" as the few seconds he gets between closing the door on one side of the car and walking around to the driver's side before getting in and starting the real "vacation."]

I was reminded of these, admittedly cynical, impressions of family vacations when I read a recent decision, Lang v. Lang, from the Family Part. In that case, divorced parents fought over whether the mother could take their six-year-old son to Holland for the summer. Sprinkled throughout the court's opinion were descriptions of the importance of family vacations, including the following:

Vacations provide highly unique and valuable opportunities for a child to bond with parents and other family members, while creating highly positive and lasting  memories. The entire point of vacation travel is for adults and children alike to enjoy a invigorating break from the tedium of everyday schedules and responsibilities, and to mentally relax and rejuvenate by journeying to new  destinations, experiencing new sights and adventures, and simply enjoying themselves in as carefree a manner as possible.

The court obviously has fonder memories of family vacations than I do. I remember turning blue while driving through the safari at Six Flags in a Dodge Dart with the windows closed and no air conditioning. Nothing too invigorating about that.

 

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