Operating a Health Club in New York City: A Weighted Issue

Over 72 million Americans are considered clinically obese. With the increased emphasis on diet and exercise, gyms are turning up everywhere throughout New York City. Owning and operating a gym is not a simple process. Gym owners face zoning restrictions, permit requirements, and potential tort liability.

Special Permit

Gyms are permitted only in certain enumerated commercial and manufacturing districts and must obtain a special permit from the Board of Standards and Appeals. A physical culture establishment is defined by the Board as “including a health club or other business where customers go to exercise or to care for their bodies.” A special permit can generally take from four to six months to obtain and can have a term of no more than ten years. There is no online process to obtain a permit. A gym owner or representative must apply to the New York City Department of Buildings for a building permit. If the applicant is constructing a new space or renovating an existing space, the application to approve the new gym use can be part of the application to build or alter the space.

Buildings will issue an objection, and instruct the applicant to obtain a special permit from the BSA. An application for a special permit must be filed within thirty days of the objection issued by Buildings. A complete BSA application includes a narrative description of proposal, the Buildings objection, a questionnaire for Department of Investigation review, a BZ (zoning) application form, and all plans, documents, and photographs described in the BZ application instructions and checklist.

The gym owner is also required to file an application for a City Environmental Quality Review. A City Environmental Quality Review identifies potential adverse environmental effects, assesses their significance, and proposes measures to eliminate or mitigate significant impacts. Many of the items required for the Environmental Quality Review are also required for the special permit, and the applications may be filed together.

In order to grant a special permit, the BSA must find that gym use will not impair the essential character or the future use or development of the surrounding area. A major concern with the operation of gyms is noise. In a recent 2014 BSA decision involving CrossFit NYC, (228-13-BZ), located at 157 Columbus Avenue, Manhattan, the gym owner was required to install sound-proofing foam panels and padded flooring in order to operate a gym in the cellar of a mixed use building, even though the nearest residential units were located six floors above the gym.

For a portion of a gym located on the roof of a commercial building or the roof of the commercial portion of a mixed use building, additional findings must be made by the BSA. The use must be incidental to a permitted physical culture establishment located within the same commercial or mixed use building, the use must be open and unobstructed to the sky, and the use must be located on a roof not less than twenty-three feet above the curb.

The Department of Investigation (“DOI”) is required to review the application and conduct a background check of the applicant, operators, and principals of a partnership or corporation. DOI must issue a report and the BSA must find the report to be satisfactory.

The BSA may minimize the adverse impacts on the surrounding area by prescribing limitations on the location, size, and types of signs the gym may use and by setting the hours the gym may operate. The BSA has the authority to revoke the special permit at any time if it determines that the nature or manner of operation of the permitted use has been altered from what it authorized.

Defibrillator

Gyms are also subject to State statutes. Under NY General Business Law Section 627-a, every gym with 500 or more members must have at least one automated external defibrillator on the premises. Additionally, during all staffed business hours, the gym must have at least one individual present who holds a valid certification of completion of a course in the study of the operation of automated external defibrillators, and a valid certification of the completion of a course in the training of cardiopulmonary resuscitation provided by a nationally recognized organization or association.

The defibrillator obligation does not, however, create a duty of reasonable care running in favor of the gym member. In Miglino v. Bally Total Fitness of Greater New York, Inc., 92 A.D.3d 148 (2d Dept 2011), Gregory Miglino collapsed while near the racquetball courts at a health club owned and operated by Bally Total Fitness of Greater New York, Inc. The receptionist called 911, and Kenneth LaGrega, a personal trainer employed by Bally, responded to Miglino. The receptionist brought the club’s automated external defibrillator to Miglino’s side and LaGrega checked Miglino’s pulse. LaGrega was certified to operate the defibrillator and to administer CPR, having successfully completed courses with the American Heart Association. LaGrega, however, did not start CPR or use the defibrillator on Miglino because Miglino was still breathing and had a pulse. When the ambulance personnel arrived, they administered the defibrillator shocks to Miglino, but he never revived.

Miglino’s son brought a wrongful death suit against Bally and Bally Total Fitness Corporation. Miglino argued that Bally’s employees negligently failed to use an available device, or failed to use it within sufficient time, to save Miglino’s life. The Court of Appeals rejected the argument and held that while the statute mandates the presence of a defibrillator and trained individuals at gyms, it does not create a duty of reasonable care running from a health club to its members to use the defibrillator.

Express Waivers

When a person pays for a membership at a gym, he or she is usually presented with a contract that states the rules of the gym, the terms of the agreement, and an agreement exempting the gym from liability for injury resulting from negligence. These waivers are unenforceable. New York General Obligations Law Section 5-326 states that agreements exempting gym operators from common law negligence liability are “deemed void as against public policy and wholly unenforceable” as against gym users who have paid a fee or other compensation to use the facility.

In Debell v. Wellbridge Club Management, Inc., 40 A.D.3d 248 (1st Dept. 2007), a spa member tore his rotator cuff and suffered a herniated disc while performing an exercise during a complimentary training session. The defendant spa owners argued that the member’s claims were barred because the training session was free and the member had signed a release of liability. The Appellate Division rejected the waiver defense. It held that the training session was ancillary, rather than instructional, to the spa membership, which the member had paid a fee. The waiver was therefore void and unenforceable.

In Schwartz v. Martin, 82 A.D.3d 1201 (2d Dept. 2011), however, the plaintiff purchased a racing license from USA Cycling, Inc. and signed an agreement releasing USA, its affiliates, property owners, and public entities from liability. The plaintiff was working at a Road Club Race in Central Park, a required condition of the license agreement, when he was struck and injured by a bicycle ridden by a person not participating in the race. The Court held that the release agreement was enforceable because, although the plaintiff paid a fee to obtain the racing license, the plaintiff did not pay a fee to use Central Park.

Assumption of Risk

Although express waivers are void, gym owners are still protected by the common law defense of assumption of risk. In Morgan v. State, 90 N.Y.2d 471 (1997), the Court of Appeals ruled that the by engaging in a sport or recreational activity, the participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation. Participants in sporting events will not be deemed to have assumed risks of reckless or intentional conduct or of concealed or unreasonably increased risks.

The assumption of risk doctrine has been applied to cases involving injuries sustained at gyms. In Lee v. Maloney, 270 A.D.2d 689 (3d Dept. 2000), Club Nautilus, a fitness club owned by Michael Maloney, sponsored a bench press competition at Southside High School. Maloney’s gym provided the weights, bars, and volunteer staff for the competition. Gregory Lee, a nationally ranked weight lifted, participated in the competition. Prior to the event, the contestants and the staff were required to attend a safety briefing held by John Comereski and Edward Patten, who were both certified referees by the United States Power Lifting Federation. Maloney was assigned to act as a spotter to the left of Lee during the competition. Lee completed his first two lifts of 550 or 555 pounds and returned for his third lift which was to be 565 pounds. As Lee lowered the bar and began to push it, Lee’s shoulder slipped off of the bench and the bar dropped to the left where it landed partially on Lee’s chest and arms and caused injuries that required surgery.

Lee argued that Maloney’s failure to adequately perform the role of spotter was the proximate cause of his injuries. Maloney successfully moved for summary judgment and Lee appealed. The Appellate Division held that because Lee had been bench pressing for 14 years and had won 22 prior events he entered, he assumed the risk that the bar might slip out of his control and injure him despite the assistance of a fully attentive spotter.

In another example, Jennifer DiBenedetto, a member of a New York Sports Club in Dobbs Ferry, New York, was injured by a treadmill. DiBenedetto v. Town Sports Int’l, LLC, 118 A.D.3d 663 (2d Dept. 2014). Another member finished using a treadmill, but left the machine running. DiBenedetto went to step onto the machine and was injured. DiBenedetto sued. New York Sports Club argued that DiBenedetto assumed the risk inherent to using a treadmill and that the club did not have actual or constructive notice of the dangerous condition. DiBenedetto testified at her deposition that prior to stepping onto the treadmill she had been standing beside the machine for up to two minutes talking to another member. DiBenedetto also testified that the treadmills at the gym were operated by using an “on” and “off” button and she exercised at the gym at least four times a week using the treadmills every day they were available.

The Supreme Court, Appellate Division, held that the doctrine of primary assumption of risk prevented DiBenedetto from recovering. The court held that the risks of using the treadmill were obvious and apparent to DiBenedetto, she consented to them, and the club discharged its duty of care by making the conditions as safe as they appeared to be.

In Leone v. Bally’s, a gym member injured his finger while performing a bench press exercise with dumbbells at Jack La Lanne Fitness Center located on Route 110 in Huntington Station, New York. The member had a 75 pound dumbbell in each hand while performing the exercise and when he was finished the member put his arms out away from his body to put the dumbbells on the floor next to his bench. When he put the weights down he pinched his finger against a 20 pound dumbbell which was on the floor next to his bench.

The gym member argued that the Fitness Center caused or allowed a dangerous condition to exist by improperly placing or aligning benches too close together; by failing to properly rack or store free weights; and by failing to give warning, repair, or inspect the dangerous condition. The Suffolk County Supreme Court held that there is no duty to warn against a condition that can be readily observed by the reasonable use of senses. The judge ruled that the gym had no duty to warn the gym member of the close proximity of the benches and the 20 pound dumbbell next to the bench because both could have been readily noticed if the member had looked at the floor rather than looking at the ceiling when placing his weights on the ground. The judge further held that the gym member’s reckless act of not looking at the floor was an unforeseeable superseding event that absolves defendant of liability. The gym had made the conditions as safe as they appeared to be and, by voluntarily participating in the activity of weightlifting, the member assumed the risk.

Pools/Steam Rooms

Many health clubs offer swimming pools, hot tubs, and steam rooms for members to use. In Dove v. Manhattan Plaza Health Club, 113 A.D.3d 455 (2d Dept. 2014), Lilith Dove was injured when she slipped and fell on water puddled along the side of the indoor swimming pool. Dove sued Manhattan Plaza. Manhattan Plaza moved for summary judgment which the Appellate Division granted. The Appellate Division held that the water on the floor was “necessarily incidental to the use of the pool.” The Court held that the mere presence of water does not raise a triable issue. The amount of water was not above and beyond what one might ordinarily expect to encounter around a pool, and Dove did not offer evidence as to how long the water existed on the floor.

In Caruso v. John Street Fitness Club, LLC, 34 A.D.3d 296 (1st Dept. 2006), Nick Caruso was burned when he passed out in the club’s steam room. Caruso sued the club, the owner of the building where the club was located, the building’s managing agent, and the manufacturer and distributor of the steam generator. Defendants demonstrated that the steam generator was not defective and Caruso’s injuries were not attributable to a product defect. The Court held that Caruso failed to produce evidence to support an inference that the steam generator, by reason of a defect, was not reasonably safe, or that such defect was a substantial factor in causing his injury. The Court further held that there was no liability for failing to warn Caruso of the specific risks posed by falling asleep in the steam room; such risks “are so obvious as to obviate the need for a formal warning.”

Products Liability

Product liability actions against gym-equipment manufacturers are also possible. In order to establish a prima facie case in a product liability action based on design defect, a plaintiff must show that the manufacturer marketed a product which was not reasonably safe in its design, that it was feasible to design the product in a safer manner, and that the defective design was a substantial factor in causing the plaintiff’s injury. Expert testimony is often required in order for a plaintiff to succeed in showing that a machine’s design was defective or could have been made safer.

In Cavolo v. Atlas Health & Fitness, 958 N.Y.S.2d 59 (Sup. Ct. Rich. Co. 2010), Jeremy Cavolo was injured when a Smith Machine fell onto his head during exercise. A Smith Machine allows a weight-lifter to perform exercises without the assistance of a spotter. The bar was contained inside of a vertical track with metal pegs to lock the bar into place when the exercise is completed. Cavolo brought a products liability action against Precor, the maker of the machine, and Atlas Health & Fitness, the gym where the machine was located. Cavolo failed to offer evidence to show that the design of the Smith machine was defective or unreasonably dangerous. The court granted summary judgment and dismissed the complaint.

By contrast, Wheeler v. Sears Roebuck & Co, 37 A.D.3d 710 (2d Dept. 2007), the family of an injured infant successfully brought a products liability action against Icon Health & Fitness, Inc., the manufacturer of a treadmill, and Sears Roebuck & Co., the seller of the treadmill. The family of the infant purchased the treadmill for use in their home. While their ten-year old daughter was walking on the treadmill, the injured party, a 26-month old toddler, caught his hand in the rear part of the treadmill. Icon’s product safety director admitted that the treadmill’s rotating rear roller and stationary rear end cap created an “in-running nip point hazard,” and he acknowledged that icon was aware that other children had been injured by nip point hazards in similar models. Icon’s product safety director further testified that Icon manufactured “open back” models which eliminated the nip point hazard. The Court awarded the plaintiff $233,000 for past and future pain and suffering.

Personal Trainers

Gyms offer instruction to members in the form of personal trainers. These trainers either work specifically for the gym or they work privately and pay a fee to the gym owner in order to train members. In New York there are several steps that one must take in order to become a certified personal trainer. Some health clubs require a bachelor’s degree in the field, such as exercise science, in order to obtain employment. Other health clubs only require that a personal trainer receive a certification from an accredited association such as the American Council on Exercise, American College of Sports Medicine, National Federation of Professional Trainers, or the International Sports Sciences Association. Each association has different requirements for taking the exam, such as having a CPR certification, a high school diploma, or G.E.D. Many personal trainers choose to work for themselves as private trainers rather than working for a health club. Personal trainers who decide to work for themselves, must name and register their business and get insurance.

Personal trainers, along with the health clubs, may be liable for injuries that occur to members. In Layden v. Plante, 957 N.Y.S.2d 458 (3d Dept. 2012), Dianne Layden, a member at No Limits Fitness, participated in a training session with Angela Plante, a certified personal trainer. Before the training session, Layden advised Plante that she had a history of back problems and a herniated disc. Plante supervised Layden through a program of weight-lifting moves and wrote out instructions for Layden to perform the workout on her own. One of the exercises was a Smith squat, a squatting exercise in which the person squats down with a bar held behind the back, and, with the back straight, stands back up. During the exercise Layden experienced lower back pain and thereafter underwent surgery to correct two herniated discs with fragments.

Layden brought a personal injury suit against the personal trainer Plante and Deborah Greenfield, the owner of No Limits Fitness. Layden argued that the injury to her back was caused by Plante’s improper supervision and instruction to “stick her butt out” rather than keep her back straight when performing the Smith squat. Plante moved for summary judgment arguing that Layden assumed the risk inherent to the activity.

The Court of Appeals agreed that Layden had assumed the risk. Layden voluntarily participated in the activity and therefore was deemed to consent to the “commonly appreciated risks” inherent in that activity. However, the Court stated that although the doctrine of assumption of risk applies to situation such as these, a participant does not assume unreasonably heightened risks caused by a trainer. The Court found triable issues of fact surrounding the instructions Plante gave to Layden about how to perform the Smith squat.

By: Jonathan Manfre (Jonathan, New York Law School, Class of 2015, is a student writer at the Center for New York City Law)