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Notice May Trump Assumption of Risk Argument in Gym Injury Case

November 1, 2016

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The defense in many cases involving gym injuries is “assumption of risk.”  However, notice of a defective condition may supersede the defense.
In <em><a href="http://www.nycourts.gov/reporter/3dseries/2016/2016_06959.htm">Barbuto v. Club Ventures Investments</a>, </em>a machine's falling weights injured an experienced weightlifter.  The gym moved for summary judgment arguing that the weightlifter assumed the risk injury by using a machine in openly “suboptimal” conditions such as bad equipment configuration.  In opposition plaintiff raised an issue of fact as to actual notice by submitting an affidavit of a gym member who previously complained about the machine in question.  The court found there was an issue of fact as to actual notice that could superseded the "assumption of risk" argument.
This decision highlights the difficulties in succeeding on an “assumption of risk” argument.  Plaintiff's can simply submit an affidavit from one (of many) members that can create an issue of fact to defeat summary judgment.
Thanks to Lauren Branchini for her contribution to this post.
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