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FRENCH & CASEY SUCCESSFUL IN DISMISSAL OF ACTION BY PLAINTIFF BOOTCAMP PARTICIPANT AGAINST SPORTS FACILITY BASED UPON DEFENSE DOCTRINE OF ASSUMPTION OF RISK

December 7, 2017 • Posted By • News, Trial Practice

On October 5, 2017, French and Casey orally argued a motion for summary judgment in support of a dismissal of all claims and, by Order of the Hon. Arlene P. Bluth dated November 3, 2017, the Court dismissed all claims commenced by a boot camp participant against a popular NYC sports club represented by French & Casey.

The alleged injury occurred when the plaintiff attended a boot camp class sponsored by her employer and was injured during a run and jump drill when a participant in front of her stopped short, and the plaintiff then rolled and fractured her right ankle.

In support of summary judgment, the plaintiff offered the affidavit of an expert who stated that the basketball court could not safely accommodate 40 people running and jumping. In fact, 60 people attended the class on the day that the plaintiff was injured.

In opposition, French & Casey offered an affidavit of a fellow boot camp participant who asserted that the instructor advised the participants the week before the plaintiff's accident to be considerate of the adjacent members, space, and avoid overcrowding, and be aware of surroundings, and potential items that they may trip over. On the day of the accident, similar instructions were given. The plaintiff had attended many of the boot camp classes and was a member of the “management team” that helped to organize and sponsor the class.

The Court agreed with the defense arguments and held that the plaintiff assumed the risk of the run and jump drill, and that inherent in that risk was that a person in front of another participant might stop short. The Court held that the issue of overcrowding was irrelevant because the plaintiff failed to show that overcrowding caused the accident. While the presence of too many participants could, theoretically, cause or increase risks while performing the run and jump drill, there was no evidence presented that the alleged overcrowding was a proximate cause of the plaintiff's accident.

The Court likened this accident to a situation where someone is driving in a lot of traffic. Heavy traffic won’t excuse the driver who is following too closely. It is the rear driver who has control and who is responsible for leaving space between themselves and the car in front of them. Here, the plaintiff and other participants were running single file around the perimeter of the basketball court and were jumping over stationary objects placed around the perimeter of the court.

Accordingly, the Court dismissed the plaintiff’s action against the defendant sports club and, as a consequence, the derivative action by the sport’s club against the event sponsor was rendered moot.

See Malloy v. Sports Club/LA, et. al., Index No. 156530/2013, Supreme Court, New York County, November 3, 2017. For further information, contact Andre A. Brochetelli at abrochetelli@frenchcasey.com.