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
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.
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 button
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.
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.
"On appeal, we review the motion judge's grant of summary judgment de novo."
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.
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 use
Rosenberg's reliance on
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.