ROSENBERG v. KAPPER TOO, LLC

No. 16-P-1656.

ANN ROSENBERG vs. KAPPER TOO, LLC, & another.

Appeals Court of Massachusetts.


Attorney(s) appearing for the Case

Ann Rosenberg, for Plaintiff/Appellant, Pro Se.

Grace V. Bacon Garcia, Esquire , for Kapper Too LLC, Defendant/Appellee.

Grace V. Bacon Garcia, Esquire , for Kirsten Ward, Defendant/Appellee.

By the Court (Sullivan, Henry & Shin, JJ.)


MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass.App.Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).

The plaintiff, Ann Rosenberg, appeals from an order by a Superior Court judge granting summary judgment to the defendants, Kapper Too, LLC, doing business as Get in Shape for Women (GISFW or the gym), and GISFW's owner and operator, Kirsten Ward. Rosenberg alleges that injuries she suffered when she fell from a treadmill at GISFW were caused by the defendants' failure to instruct or warn her about using the treadmill's emergency stop lanyard.2 We affirm.

Background.

Viewed in the light most favorable to Rosenberg, the summary judgment record discloses the following facts. Rosenberg had been a member of GISFW since May, 2009, and exercised at the gym three times per week. Ten months after Rosenberg became a member of GISFW, defendant Ward became the owner and operator of the gym. Rosenberg was injured during her workout on July 25, 2011, when the treadmill she was using suddenly increased in speed, causing her to fall. While she held on to the treadmill and called for help, the belt continued to move at its accelerated speed. A GISFW employee pressed an emergency stop button3 on the machine, but the belt did not stop running, and eventually Rosenberg was thrown to the ground. Rosenberg suffered scrapes on her leg, an infection, a torn rotator cuff, an injury to her ulnar nerve, torn tendons, bleeding into her arm muscles, and, a month or two after the accident, erythema nodosum.

Neither Ward nor any GISFW staff provided Rosenberg any instruction, training, or supervision in the use of the treadmill, nor did GISFW provide the treadmill's operation manual or any written warning or instructions requiring the use of the treadmill's emergency stop lanyard to its members.4

The motion judge concluded that the defendants were entitled to summary judgment on the basis of Rosenberg's failure to establish (through the introduction of expert testimony) the applicable standard of care owed her by the defendants, a breach of that standard of care, and causation. Rosenberg filed a motion to reconsider, which was also denied.

Discussion.

"On appeal, we review the motion judge's grant of summary judgment de novo." Molina v. State Garden, Inc., 88 Mass.App.Ct. 173, 177 (2015). Summary judgment is granted where there are no genuine issues of material fact and where the moving party is entitled to judgment as a matter of law. See Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002). Facts are viewed in the light most favorable to the nonmoving party, here Rosenberg. See Humphrey v. Byron, 447 Mass. 322, 325 (2006). Where the party opposing summary judgment bears the burden of proof, the moving party "has the burden of initially showing that there is an absence of evidence to support the case of the nonmoving party." Kourouvacilis v. General Motors Corp., 410 Mass. 706, 714 (1991).

Rosenberg argues that the defendants had a duty to warn about and instruct in the use of the emergency stop lanyard, and that their failure to do so was the proximate cause of her injuries. On appeal, she contends that the judge erred because expert testimony was not required to establish a breach of duty or causation. We address each in turn.

1. Standard of care.

Rosenberg took no discovery and introduced no expert testimony. She contends that no expert testimony was required to establish the applicable standard of care. She points to two treadmill owner's manuals which instruct users how to use the emergency stop lanyard and instruct gym owners, operators, and personal trainers to "[r]emind" and "instruct" users about its use5; however, these are insufficient to establish the applicable industry standard with regard to the safety-related operations of a health and fitness club. See Sullivan v. Utica Mut. Ins. Co., 439 Mass. 387, 403 (2003) ("Only where professional negligence is so gross or obvious that jurors can rely on their common knowledge to recognize or infer negligence may the case be made without expert testimony").

Rosenberg's reliance on Cottam v. CVS Pharmacy, 436 Mass. 316 (2002), is misplaced. In that case, the Supreme Judicial Court concluded that a pharmacy had voluntarily assumed the duty to warn by providing a warning form that the customer could reasonably have interpreted as comprising a complete and comprehensive list of all known side effects. Id. at 323-326. With a duty to warn thus established, the court concluded that expert testimony was not required to establish the scope and breach of that duty because the questions at issue, "the extent of CVS's undertaking to warn and whether a reasonable person would have been misled by the warning," "involved a commonsense determination regarding the understanding of an ordinary, reasonably prudent person." Id. at 326. By contrast, here, the question at issue is the very existence of a fitness club's duty to instruct or warn as to a particular safety feature, a question which we conclude requires expert testimony.6

2. Causation.

The motion judge entered summary judgment for a separate and independent reason — that no acts or omissions of the defendants caused the fall. Rosenberg's theory of causation is that if she had been so instructed, she would have been wearing the emergency stop lanyard at the time of the accident, which would have prevented or reduced the severity of her injuries. She points to the operator's manual as factual support for her contention that the treadmill belt would have stopped immediately when she fell if she had been wearing the emergency stop lanyard. We agree with the motion judge that Rosenberg has provided no evidence that a failure to warn would have prevented her fall after a sudden change in treadmill speed. Rosenberg has presented no evidence that the emergency stop lanyard would have functioned in the manner she alleges on the treadmill she was using, especially given her own testimony that a gym employee attempted to stop the treadmill using its emergency stop button and the machine did not respond. She has also presented no evidence connecting her injuries to the failure of the treadmill to stop running after she fell or any negligence on the part of the defendants.7

Judgment affirmed.

FootNotes


1. Kirsten Ward.
8. The panelists are listed in order of seniority.
2. Rosenberg conceded at oral argument that she is no longer pressing her claim that the treadmill itself was defective, and she has presented no evidence of a dangerous condition on the premises of which the defendants knew or should have known. See O'Sullivan v. Shaw, 431 Mass. 201, 204 (2000).
3. The record is unclear but we presume the emergency stop button is different from the emergency stop lanyard, discussed infra.
4. Some treadmill models, including the one at issue here, are equipped with an emergency stop lanyard which clips to the operator's clothing and shuts off the treadmill belt if the operator falls, moves backward, or otherwise pulls on the lanyard.
5. We assume the relevance of these operator's manuals, though the record does not establish that the manual for the treadmill made by the same manufacturer as the one Rosenberg used at GISFW is for the same model she used, and the other manual is for a treadmill made by a different manufacturer than the one Rosenberg used at GISFW.
6. Rosenberg relies on a photograph of the treadmill at issue, taken nearly one year after the accident, which shows a small strip of paper near the emergency stop lanyard that Rosenberg contends contains a warning, to argue that the defendants have demonstrated the applicable standard of care and acknowledged the need for a warning. In her deposition, Rosenberg stated that she could recall no warning whatsoever posted on the treadmill, and she was unable to verify that the photograph represented the machine she used at GISFW. Even if we assume the defendants posted a warning on the treadmill after Rosenberg's fall, she failed to offer evidence to establish the content of that warning, and evidence of subsequent remedial measures are generally inadmissible at trial to prove negligence. See Mass. G. Evid. § 407(a) (2017).
7. Rosenberg also argues that her initial orientation when she became a member at GISFW was negligent and that this negligence should be imputed to the defendants through principles of successor liability. However, she has not introduced any evidence regarding the corporate structure or any agreement by Kapper Too, LLC, to assume the selling corporation's liability, so this claim must fail. See Milliken & Co. v. Duro Textiles, LLC, 451 Mass. 547, 556 (2008).

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