Pryce et al v. New York Sports Club et al
FINDINGS OF FACT AND CONCLUSIONS OF LAW: the Court concludes that Mrs. Pryce is not entitled to relief on her negligence claim, and that Mr. Pryce is similarly not entitled to relief on his per quod claim. To be clear, the Court sympathizes with M rs. Pryce for the pain and discomfort she described at trial, and with both Plaintiffs for the losses (financial and otherwise) to which they testified. However, on the record before the Court, it cannot lay liability for these losses at the feet of NYSC. For the reasons explained above, the Court directs the Clerk of Court to enter judgment in favor of NYSC. The Clerk of Court is further directed to terminate all pending motions, adjourn all remaining dates, and close this case. (Signed by Judge Katherine Polk Failla on 3/31/2021) (tn) Transmission to Orders and Judgments Clerk for processing.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
SIMONE PRYCE and DAVID PRYCE,
-v.TOWN SPORTS INTERNATIONAL, LLC, d/b/a
New York Sports Club,
18 Civ. 5863 (KPF)
FINDINGS OF FACT AND
CONCLUSIONS OF LAW
KATHERINE POLK FAILLA, District Judge:
Plaintiffs Simone Pryce (“Mrs. Pryce”) and her husband David Pryce (“Mr.
Pryce”) brought this negligence action alleging that Mrs. Pryce sustained a
shoulder injury while exercising with personal trainer Jonathan Reyes
(“Reyes”), on July 2, 2015, at a gym owned by Defendant Town Sports
International, LLC, d/b/a New York Sports Club (“NYSC”). Specifically,
Plaintiffs allege that Reyes briefly left Mrs. Pryce unsupervised while she was
performing an exercise with a medicine ball and thereby breached a duty to
ensure a safe and controlled exercise environment, which breach proximately
caused Mrs. Pryce’s injury. The Court conducted a bench trial in this matter
between February 3, 2020, and February 6, 2020. In this Opinion, the Court
presents its Findings of Fact and Conclusions of Law pursuant to Federal Rule
of Civil Procedure 52.
The Court has carefully reviewed the transcript of the trial, the trial
exhibits, and the parties’ post-trial submissions and has considered those
materials in light of its own recollections of the trial and its perception of the
credibility of the witnesses who testified. While the Court largely credits Mrs.
Pryce’s testimony as to what happened at her July 2, 2015 personal training
session with Reyes, it nonetheless finds that Mrs. Pryce has failed to meet her
burden of proof. Accordingly, the Court concludes that Mrs. Pryce is not
entitled to relief on her negligence claim, and that Mr. Pryce is similarly not
entitled to relief on his per quod claim.
This action was initiated by the filing of a complaint by Plaintiffs on
June 28, 2018. (Dkt. #1). The complaint named as defendants, New York
Sports Club, New York Sports Club, Inc., Town Sports International, LLC,
Town Sports International, L.L.C., Town Sports International, Inc., TSI East 41,
LLC, Town Sports International Holdings, TSI Holdings, Town Sports
International Holdings, Inc. (collectively, “Defendants”), 1 John Does 1-20, ABC
Corporations 1-20, and Jonathan Reyes. (Id.). Defendants filed an answer to
the complaint on October 18, 2018. (Dkt. #38). The Court entered a case
management plan on October 19, 2018. (Dkt. #42).
The Court held a pretrial conference on March 4, 2019, at which time the
parties indicated that they would not be filing summary judgment motions.
(See Minute Entry for 3/4/2019; Dkt. #72 (transcript)). The Court held a
telephone conference on April 11, 2019, to discuss setting a trial date. (See
Minute Entry for 4/11/2019). Then, on April 26, 2019, the Court entered a
References to “Defendant” in the singular are to NYSC, the defendant at trial.
pretrial order that scheduled the trial to begin on February 3, 2020. (Dkt.
#50). The parties filed their pretrial order, motions in limine, proposed voir dire
questions, proposed jury instructions, and pretrial memoranda in January and
February 2020. (See Dkt. #52-54, 56-58, 60-61, 64-65).
The Court held the final pretrial conference on January 21, 2020. (See
Dkt. #78 (transcript)). At the pretrial conference, the Court and the parties
streamlined the issues for trial in several ways: (i) the Court resolved many of
the evidentiary issues raised by the parties’ motions in limine (see generally id.);
(ii) Plaintiffs dropped their claims for failure to supervise, negligent supervision,
and violation of New York General Business Law § 349 and stated that Mrs.
Pryce would proceed only on her negligence claim and Mr. Pryce would proceed
only on his loss of consortium claim (see id. at 4, 32-33, 60); (iii) the parties
notified the Court that they might consent to a bench trial (see id. at 57-58);
(iv) Plaintiffs stipulated to revising the case caption to reflect Town Sports
International, LLC as the only defendant at trial (see id. at 58-59); and
(v) Defendants consented to stipulating to respondeat superior liability for
Reyes’s actions acting within the scope of his employment (see id. at 59). The
next day, January 22, 2020, the Court entered an order confirming that the
trial would proceed as a bench trial, and that the case caption should be
amended. (Dkt. #66).
The case proceeded to trial over the course of four days, from February 3,
2020, to February 6, 2020. (See Dkt. #80-81, 88-89 (trial transcript)). The
Court heard testimony from three fact witnesses and three expert witnesses
and admitted several exhibits into evidence. (See id.). In lieu of closing
arguments, the parties submitted proposed findings of fact and conclusions of
law (Dkt. #84, 85), as well as rebuttal briefs (Dkt. #86, 87). The parties also
submitted legal memoranda immediately following the bench trial. (Dkt. # 7475).
On September 14, 2020, NYSC filed a notice of bankruptcy, in which it
advised the Court and Plaintiffs that Town Sports International, LLC and
several of its affiliates had filed voluntary petitions under Chapter 11 of the
Bankruptcy Code. (Dkt. #90). As a result, the Court endorsed the notice and
stayed the proceedings in this case pending further order of the Court. (Dkt.
#91). Plaintiffs then responded with a letter dated September 18, 2020,
outlining their contemplated motion to lift or modify the stay. (Dkt. #92). By
letter dated March 12, 2021, Plaintiffs advised the Court that the bankruptcy
court had entered an order approving a stipulation that granted Plaintiffs
limited relief from the stay; in pertinent part, the order permitted the parties to
continue this litigation through “trial, judgment, settlement, enforcement,
and/or appeal.” (Dkt. #93 at Ex. A). Accordingly, the Court will restore the
case to the Court’s active docket by separate order, and will now issue its
findings of fact and conclusions of law.
FINDINGS OF FACT 2
The Fact Witness Testimony
At trial, the Court heard testimony from three fact witnesses: Mrs. Pryce,
Mr. Pryce, and Jonathan Reyes. The Court found Mrs. Pryce to be generally
credible with respect to the incident at NYSC and her resulting injuries. The
Court here employs the qualifier “generally” because Mrs. Pryce’s testimony did
contain several inconsistencies, both as presented at trial and as compared to
her deposition testimony. Among other things, Mrs. Pryce was inconsistent
regarding the precise position of her body when performing the exercise during
which she claims to have been injured; she frequently confused her left and
right sides; and she had difficulty recalling the equipment that she used,
including whether she was using a kettlebell or a medicine ball on the day of
the incident. Mrs. Pryce also reviewed her prior deposition testimony on the
evening between her first and second days of testimony. (Tr. 533:20-534:25).
However, on the issues that mattered, the Court found Mrs. Pryce more
credible than Reyes, whose testimony was less consistent and, ultimately, less
plausible in light of the other evidence at trial. The Court also found Mr. Pryce
to be credible, although the subjects as to which he had firsthand knowledge
were necessarily limited.
The Court relied on several documents in drafting this Opinion, including the transcript
of the trial (“Tr.” (Dkt. #80-81, 88-89)) and the exhibits that Plaintiffs (“Pl. Ex.”) and
Defendant (“Def. Ex.”) introduced during the trial; Plaintiffs’ Proposed Findings of Fact
and Conclusions of Law (“Pl. FFCL” (Dkt. #85)); Defendant’s Proposed Findings of Fact
and Conclusions of Law (“Def. FFCL” (Dkt. #84)); Plaintiffs’ Response to Defendant’s
Proposed Findings of Fact and Conclusions of Law (“Pl. Resp.” (Dkt. #87)); and
Defendant’s Response to Plaintiffs’ Proposed Findings of Fact and Conclusions of Law
(“Def. Resp.” (Dkt. #86)).
Mrs. Pryce Joins NYSC
Mrs. Pryce is from Astoria, Queens, and is in her mid-50s. (Tr. 340:3-4,
344:13). Mrs. Pryce has had a long career at Crain’s Publishing, where, at the
time of trial, she was a production director. (Id. at 340:9-12, 340:20-341:1).
She is paid a weekly salary of $1,500 and bonus of around $12,000. (Id. at
341:23-342:1, 410:17-18, 412:9-413:16). At the time of trial, Mrs. Pryce had
been married to Mr. Pryce for 13 years. (Id. at 594:18-23). Mr. and Mrs. Pryce
maintain an active lifestyle and share many interests and hobbies, including
swimming, basketball, tennis, hiking, and cycling. (Id. at 595:9-24).
On March 2, 2015, Mrs. Pryce attempted to take advantage of a discount
offered by Crain’s for a membership at the NYSC facility on 41st Street and 3rd
Avenue in Manhattan, which was near her office. (Tr. 286:7-9, 344:11-12,
427:24-428:4). 3 Mrs. Pryce had turned 51 around this time and joined the
gym in order to gain muscle mass and strength. (Id. at 344:12-16). Section
3.5 of the membership agreement she signed at NYSC, entitled “Activity Risk,”
Any strenuous athletic or physical activity involves
certain risks. By signing this agreement, you represent
that you understand and you acknowledge that there
are certain risks associated with the use of a health club
and the use of fitness equipment, and that free weights
pose a risk of injury if not used correctly. We cannot
guarantee that any facility or equipment is free of risk.
You agree to use care in the use of the club’s facility,
Mrs. Pryce signed the NYSC membership agreement on a keypad and claimed not to
have read the agreement before she signed it. (Tr. 431:1-432:12). Though she was later
given a copy of the signed agreement, Mrs. Pryce elected not to read it, even as of the
time of trial. (Id. at 433:2-16).
equipment, and services and
accidents by other members.
(Id. at 433:22-434:10; see Def. Ex. 3).
When she first joined NYSC, Mrs. Pryce would use the elliptical machine
two or three times per week. (Tr. 344:16-18). Shortly thereafter, she decided
to sign up for personal training sessions. (Id. at 344:18-25). She hoped that
personal training would help her gain strength and learn how to use weights.
(Id. at 344:18-21, 346:4-6).
Mrs. Pryce’s Personal Training with Jonathan Reyes
Mrs. Pryce spoke to the receptionist at NYSC about her interest in
personal training; the receptionist then set her up with an appointment with
NYSC personal trainer Jonathan Reyes, who was certified by the International
Sports Science Association. (Tr. at 144:3-7, 147:5-9, 346:7-23). 4 Reyes had
worked for NYSC since June 2009 as a personal trainer. (Id. at 251:4-6). 5 At
their introductory session, Reyes conducted an “initial assessment” of Mrs.
Pryce in his office. (Id. at 347:12-14, 162:4-8). During the evaluation, Reyes
asked her questions about her health history, lifestyle habits, and goals. (Id. at
Rather than present expert testimony regarding standards and practices for personal
trainers, Plaintiffs sought to introduce such concepts through their counsel’s
questioning of Reyes. The Court has largely discounted these efforts, in part because
they exist in tension with Plaintiffs’ argument that the Court should discredit Reyes’s
testimony, and in part because Reyes was imprecise in his answers — not aware, for
example, of certain standards or texts on which he was questioned.
Reyes started out as a floor trainer and was subsequently promoted to an apprentice
trainer, a pro trainer, a master trainer, and finally a fitness manager. (Tr. 252:6-10).
His current position is fitness manager. (Id. at 251:10-11). During his tenure at NYSC,
Reyes has always worked at the NYSC location on 41st Street and 3rd Avenue in
Manhattan. (Id. at 253:7-13). In the course of his career, he has trained hundreds of
clients and given thousands of personal training sessions. (Id. at 268:8-269:4).
348:5-349:4, 162:5-8, 271:1-16). 6 Mrs. Pryce told Reyes that she is diabetic
and that she had a lateral meniscus tear, 7 and they discussed her diet and her
desire to get stronger. 8 (Id. at 348:11-349:4). After the evaluation, Mrs. Pryce
signed up for a package of 12 personal training sessions. (Id. at 211:1-5,
353:5-7; see also id. at 283:25-284:8).
Reyes developed a fitness program for Mrs. Pryce. (Tr. 284:9-10). At
first, the training consisted of mostly bodyweight training, but as it evolved,
Reyes began incorporating light weights. (Id. at 284:12-285:11). In her later
personal training sessions, Mrs. Pryce advanced to using stationary machines,
7.5-pound dumbbells, and an 8-pound medicine ball with handles. (Id. at
178:17-25, 285:8-20). 9 While Mrs. Pryce would usually warm up on her own
before their training sessions, during their training sessions, Reyes would
NYSC disposed of Mrs. Pryce’s evaluation form and client folder in a routine cleanout of
its office in or about 2016 or 2017. (Tr. 278:18-279:14, 318:21-322:13).
Reyes told Mrs. Pryce that he would note her meniscus tear on some of the exercises
they would do. (Tr. 350:6-9).
One area of dispute concerns whether Mrs. Pryce had a prior shoulder injury, and, if so,
whether she disclosed this information to Reyes. Mrs. Pryce testified that, during the
evaluation with Reyes, she did not mention any issues regarding her shoulder or
numbness in her arm because she had no such issues. (Tr. 354:2-8). Reyes, however,
recalled that, during the initial assessment, Mrs. Pryce informed him that she had a
“shoulder issue” and “some knee issues.” (Id. at 162:24-163:8). Specifically, he stated
that Mrs. Pryce told him that her right shoulder would give her “some type of numbness
down the arm,” and he explained that because of her limited range of motion he would
not have had her perform an exercise where she reached above her head. (Id. at 163:913, 292:14-293:8). The Court found Mrs. Pryce’s testimony on this point more credible.
In particular, the Court found credible Mrs. Pryce’s testimony that, while training under
Reyes’s supervision, she had performed an exercise using a machine in which she
reached over her head and pulled down on a bar by which she was able to pull herself
(and a platform) up. (Id. at 457:12-458:21, 577:15-587:21).
Throughout her deposition, Mrs. Pryce had repeatedly referred to the piece of
equipment that she used during her July 2, 2015 training session as a kettlebell. (See
Tr. 533:23-534:8 (discussing deposition testimony)). At trial, Mrs. Pryce disclaimed ever
using a kettlebell during her personal training, and instead indicated that the
equipment was a medicine ball. (Id. at 288:21-23, 372:19-25, 444:8-16, 572:16-21).
stand next to Mrs. Pryce, show her how to do the exercises, correct her
technique and posture, and guide her as she was performing the exercises. (Id.
at 174:6-8, 287:17-23, 566:12-24).
Mrs. Pryce’s Final Personal Training Session
Mrs. Pryce’s final training session with Reyes occurred on July 2, 2015,
at around 7:00 a.m. (Tr. 354:9-16). On that day, she arrived at NYSC from her
home, exercised for 30 minutes on the elliptical, and then checked in with
Reyes via text message to let him know that she was ready for their session.
(Id. at 357:3-11). They had developed a routine by which Reyes would tell Mrs.
Pryce the exercises they would do and the machines they would use. (Id. at
About halfway through the session, Reyes demonstrated an exercise for
Mrs. Pryce that the parties have referred to as a “core diagonal crossover.”
(See, e.g., Tr. 176:2-5). This particular exercise was the subject of much
discussion during the trial. Reyes testified that there were several versions of
the exercise. (Id. at 176:16-19). At trial, both Reyes and Mrs. Pryce
demonstrated, using a lightweight yoga ball, the particular version of the
exercise that Reyes recalled teaching and that Mrs. Pryce recalled learning; the
witnesses’ recollections of the movement of the arms and torso were
substantively identical, but their recollections of leg placement differed. When
Mrs. Pryce demonstrated the exercise in court, she put her right knee on the
ground, bent her left knee, held the ball out in front of her chest with slightly
bent arms, and then moved it over towards her right shoulder to about ear9
level before returning it in front of her chest. (Id. at 360:1-362:3; see also id. at
504:15-20, 506:14-18). The motion was slow and steady. The Court
understood that, in practice, when a set of 10 repetitions of the exercise was
completed, Mrs. Pryce would switch leg positions and move the ball in a similar
fashion towards the other shoulder. (Id. at 360:17-22, 367:9-16). When Reyes
demonstrated the exercise in court, he stood while holding the ball at
approximately belly level and then moved his arms to approximately chin level;
his motion was similarly slow and steady. (Id. at 182:2-14). Reyes
acknowledged that the exercise could be performed with one knee on the
ground (id. at 183:19-184:11), but recalled instructing Mrs. Pryce to perform
the exercise in an “isolation lunge” position, with one knee bent and lowered
but not touching the ground (id. at 185:15-187:5).
The parties agree that Reyes first demonstrated the core diagonal
crossover exercise to Mrs. Pryce before she ever performed it. (See, e.g.,
Tr. 192:4-25; id. at 193:5-10 (Reyes agreeing that as to each new exercise, “the
first person to do it was you and then [Mrs. Pryce] mirrored what she saw you
do?”); id. at 301:22-302:9 (same); id. at 359:6-12 (Mrs. Pryce recalling that
Reyes “showed [her] what to do”); id. at 368:5-6 (same); id. at 456:8-15 (Mrs.
Pryce acknowledging that Reyes would “show [her] exactly how to do that
exercise before he would allow [her] to perform it”)). 10 And when she performed
The parties dispute, however, whether Reyes had instructed Mrs. Pryce on any variant
of the core diagonal crossover exercise in any training session prior to July 2, 2015.
(Compare, e.g., Tr. 185:15-187:16 (Reyes discussing “progress[ing]” with Mrs. Pryce to
more challenging versions of the core diagonal crossover exercise over a period of
the exercise, Mrs. Pryce strove to replicate the form and technique that Reyes
had demonstrated for her. (Id. at 568:17-19). Mrs. Pryce could not recall the
specific weight of the medicine ball that she was holding on July 2, 2015 (see
id. at 365:10-13), but Reyes recalled that she had progressed to using an 8pound medicine ball (id. at 178:24-25, 188:14-16). Mrs. Pryce recalled that on
July 2, 2015, Reyes stood within three feet of her when she began the exercise
in order to observe (and, as necessary, correct) her form. (Id. at 368:5-6,
510:11-13). However, at some point when she was performing the exercise,
Reyes walked approximately 12 feet away from Mrs. Pryce to talk to a patron at
the gym. (Id. at 368:7-14). While he was speaking with the patron, Reyes had
his back to Mrs. Pryce. (Id. at 369:1-25).
Mrs. Pryce completed two sets of ten repetitions on her left side before
switching to the right side; she performed two or three repetitions on the right
side when she felt a pull in her shoulder. (Tr. 367:9-20, 502:22-503:8, 506:1922). When Mrs. Pryce felt the pull, she did not call out to Reyes; she stopped
the exercise, put the medicine ball down, and waited for Reyes to come back to
tell him she was having a hard time. (Id. at 370:7-10). Reyes told her they
would end the session for the day, and he brought her to the table outside of
his office and stretched her out. (Id. at 370:23-371:14). 11
weeks); id. at 195:8-10 (same), with id. at 362:8-363:1 (Mrs. Pryce recalling the July 2,
2015 training session as “our first time doing” the core diagonal crossover, and not
recalling performing other progressions of the exercise to which Reyes testified)). The
Court will accept Mrs. Pryce’s recollection.
Reyes did not recall a training session with Mrs. Pryce that ended early because of
claimed injury (Tr. 293:9-20), nor did he recall ever stretching her out (id. at 297:1719).
After her session, Mrs. Pryce went to her office, showered, got dressed
and started her day. (Tr. 373:12-18). She began to feel sore after the session
and the ache continued through the evening. (Tr. 373:16-20). She told her
husband that she hurt her shoulder at the gym while performing an exercise
where she raised a ball over her head. (Id. at 375:19-25, 602:2-5). 12 Mr. Pryce
was upset and confused upon learning that Mrs. Pryce was injured. (Id. at
601:7-17). He told her to take a shower and relax. (Id. at 375:23-24).
Mrs. Pryce initially viewed her pain as akin to the usual soreness she
experienced after training sessions, and particularly after trying new exercises.
(Tr. 373:16-22). However, when she went to sleep that night, the symptoms
persisted. (Id. at 373:22-25). She boosted herself up on pillows but still tossed
and turned during the night. (Id. at 373:25-374:1). Mrs. Pryce was off from
work for the next few days for the July 4th holiday, and she relaxed at home.
(Id. at 374:2-12, 388:5-16). However, the soreness did not wear off and she felt
as though she was not getting any better. (Id. at 374:12-14).
Mrs. Pryce’s Shoulder Treatment
Approximately twelve days after the July 2, 2015 training session, Mrs.
Pryce visited her primary care doctor. (Tr. 389:3-6, 518:19-520:2). Her
primary care physician referred her to an orthopedist, Dr. Rizzo, who sent her
for an MRI. (Id. at 389:9-18). 13 Mrs. Pryce met with Dr. Rizzo on July 17,
Mrs. Pryce testified that she also told her sister that she injured her shoulder at the
gym. (Tr. 376:4-6).
Dr. Rizzo’s records from his first appointment with Mrs. Pryce, on July 14, 2015, reflect
that Mrs. Pryce told him that she sustained the shoulder injury six weeks prior, which
2015, after he received the results from her MRI. (Id. at 389:11-12, 737:1-5).
He told her that she had a bicep tear and that her rotator cuff needed to be
repaired. (Id. at 389:23-24). Dr. Rizzo explained to Mrs. Pryce that while some
people could heal with physical therapy, he believed that physical therapy
would not help her, and that she would likely need surgery eventually. (Id. at
Mrs. Pryce decided to go forward with surgery on July 29, 2015, because
she was in constant pain. (Tr. 390:1-391:9). Following the surgery, Mrs. Pryce
had to keep her arm in a sling. (Id. at 394:4-5). About two weeks after the
surgery, Mrs. Pryce began a physical therapy regimen, including doing
exercises at home, to try to rehabilitate her shoulder. (Id. at 395:3-13).
However, for a period after beginning physical therapy, she remained unable to
use her right hand and to perform routine tasks like washing her hair, getting
dressed, or cooking. (Id. at 395:14-25). 14 Since she was unable to exercise
and be active, Mrs. Pryce gained approximately 50 lbs. during her recovery.
(Id. at 397:9-14). She also had to begin taking insulin for the first time in six
years to control her diabetes. (Id. at 397:15-398:4).
Around the time Mrs. Pryce began physical therapy, she noticed that her
right hand had become swollen and painful. (Tr. 398:17-22). Her physical
would mean that she became injured around June 2, 2015. (See Def. Ex. 1). Mrs.
Pryce denied that she told Dr. Rizzo her injury had occurred six weeks prior to their
visit. (Tr. 526:16-18).
As result of Mrs. Pryce’s injury, Mr. Pryce had to take on additional household
responsibilities. (Tr. 603:3-604:2). He also drove her to her many doctor’s
appointments, which caused him to take approximately three months off from his job
as an Uber driver. (Id. at 605:21-607:23).
therapist suggested she see a doctor, so she made another appointment with
her orthopedist, Dr. Rizzo. (Id. at 398:23-399:2). She explained to Dr. Rizzo
that her hand was always swollen, she could not open or move it, and she was
experiencing a burning feeling. (Id. at 399:4-6). Dr. Rizzo referred Mrs. Pryce
to a hand specialist in his office, Dr. Sandeep Rathi. (Id. at 399:6-7, 536:8537:11).
Dr. Rathi prescribed Mrs. Pryce a nerve medication, Lyrica, which she
took once a day. (Tr. 399:19-400:1). However, the medication did not help: her
hand remained swollen and numb. (Id. at 399:23-400:12). Mrs. Pryce was told
she would need to have a ganglion block every other week for several weeks,
which procedure was intended to address her nerve pain. (Id. at 400:9-17).
Following this advice, she had three ganglion block procedures performed. (Id.
at 400:18-19). She felt no relief after the first two procedures, but after the
third one her swelling started to go down and she experienced relief. (Id. at
400:20-401:4). From that point forward, she experienced no further limitations
on the use of her right hand. (Id. at 401:5-12). 15
Even after completing physical therapy, Mrs. Pryce still had issues with
her right shoulder: she experienced twinges, had difficulty putting on clothes
and washing her hair, and occasionally felt aches and pains. (Tr. 402:1-5,
403:17-24). While her shoulder mobility improved with physical therapy, by
the time of trial it had not returned to where it was prior to her injury. (Id. at
Mrs. Pryce testified that she occasionally experiences a burning sensation in the center
of her hand that causes a pain to shoot up her arm for around 30 seconds, but other
than that her hand has recovered. (Tr. 401:5-25).
402:9-403:5). Because of her shoulder issues, she no longer takes part in
certain activities that she enjoys, including playing tennis, biking, hiking, and
swimming. (Id. at 404:4-408:5, 611:2-14).
Following Mrs. Pryce’s surgery, she missed approximately 10 weeks of
work. (Tr. 408:23-409:7). She received 80% of her income through disability
insurance but lost $3,000 in salary during this time. (Id. at 410:21-411:14).
Her bonus was also around $6,000 lower in 2015 than it had been in prior
years. (Id. at 412:5-413:18). 16 In addition to her lost income, Mrs. Pryce
incurred approximately $6,000 in out-of-pocket medical expenses, which
consisted of co-pays for medical treatment and physical therapy. (Id. at 420:712). Mr. Pryce also lost income because he stopped working for several months
after Mrs. Pryce’s injury so that he could drive her to her doctor’s appointments
and care for her as necessary. (Id. at 605:21-607:23).
The Expert Witness Testimony
The parties proffered competing expert witnesses at trial. In broad
strokes, Plaintiffs’ expert, Dr. Sharef Hassan, testified that Mrs. Pryce could
have sustained her shoulder injury through an overhead exercise; NYSC’s
expert, Dr. Andrew Bazos, testified that Mrs. Pryce’s shoulder injuries were not
caused by an isolated event. While the Court found both expert witnesses to
Mrs. Pryce also testified that she missed a bonus of around $20,000 to $40,000, which
she would have received were she able to lead a project to roll out a new editorial
system at Crain’s. (Tr. 414:23-416:11). She did not, however, have any documents or
paperwork to reflect this potential bonus opportunity (id. at 540:8-16), and the Court
finds her claim to this missed bonus to be unduly speculative.
be credible, it found Dr. Bazos’s explanation of Mrs. Pryce’s injuries to be better
supported by the evidence at trial. The Court summarizes the expert testimony
Dr. Sharef Hassan
Plaintiffs proffered the testimony of Dr. Sharef Hassan, a qualified expert
in the field of orthopedics. 18 Dr. Hassan is board certified in orthopedic
surgery and presently practices at Landa Spine and Orthopedic Medicine in
New Jersey. (Tr. 21:22-23, 24:8-23). He spends around 95% of his time as a
practicing physician: he typically sees patients four to five days per week and
performs surgery at least one to two days per week. (Id. at 22:24-23:2). Dr.
Hassan spends the other 5% of his time doing forensic medicine. (Id. at 23:24). He specializes in shoulders and knees and frequently performs surgery,
including arthroscopic shoulder surgery. (Id. at 22:14-19, 23:8-24:2). 19
Dr. Hassan was not Mrs. Pryce’s treating physician. (Tr. 28:2-4).
However, he met with Mrs. Pryce; reviewed Mrs. Pryce’s medical records from
The Court presents this testimony in the interest of completeness. However, given the
Court’s finding that Plaintiffs have not proven Mrs. Pryce’s claim of negligence, the
testimony is largely irrelevant to the Court’s analysis.
Dr. Hassan is a graduate of Columbia University and Albert Einstein Medical College,
from which he has an M.D. and at which he completed his residency in orthopedics.
(Tr. 21:12-23). He completed a fellowship in arthroscopic surgery in sports medicine at
Union Memorial Hospital in Baltimore. (Id.). For a time, he was on the faculty at
Mount Sinai Medical Center. (Id.). He is currently a volunteer teaching attendant at
Mount Sinai Hospital. (Id. at 22:11-12). Dr. Hassan is also a member of the American
Academy of Orthopedic Surgery, the Arthroscopy Association of North America, and the
American Orthopedic Society of Sports Medicine. (Id. at 24:3-9).
Dr. Hassan told the Court that he has testified in court on two prior occasions and
conducted two video depositions on behalf of Plaintiffs’ counsel, the Clark Law Firm, in
different cases. (Tr. 86:1-87:17).
Sports Training Physical Therapy, Shore Orthopedic Group, and the operative
report from Dr. Rizzo; 20 viewed the MRI films of her right shoulder taken on
July 15, 2015; reviewed the medical records and bill for her surgery from
Lakewood Surgery Center; obtained a history from Mrs. Pryce involving the
injury to her right shoulder; and performed a physical examination of Mrs.
Pryce focusing on her shoulder. 21 (Id. at 26:10-28:8). He also reviewed the
independent medical examinations from the two defense experts, Dr. Bazos
and Dr. Weiland. (Id. at 27:4-7).
Dr. Hassan testified that he always reviews the MRI films for his own
patients and would not operate on a patient without first reviewing the films
himself. (Tr. 27:8-18). He does not rely on radiology reports because, in his
own review of the MRI films, he might identify issues relevant to surgical
planning that a radiologist would not focus on (id. at 27:20-28:1).
Dr. Hassan explained that, based on his review of the medical records,
his evaluation of Mrs. Pryce, and his review of the MRI films, he believed it
more likely than not that Mrs. Pryce’s initial shoulder injury was caused by her
exercise. (Tr. 28:9-13, 60:13-61:1, 62:6-19). Specifically, he explained that:
According to my reports and history, on the date in
question, on July 2nd of 2015, she reported that she
was exercising with a personal trainer. I have in my
records a kettle bell. I believe it was some sort of
exercise ball. She said that during that time she was
An operative report is a report that summarizes what was encountered during a surgery
and details how the surgery was performed. (Tr. 41:23-25).
On cross-examination, Dr. Hassan was questioned about why he did not review the
radiology report interpreting the MRI films. (Tr. 93:15-94:19). He explained that in his
clinical practice he relies mostly on his own interpretation of the MRI films, such that
the radiology report is less critical. (Id. at 94:7-15).
doing a maneuver and experienced a sharp — sudden
sharp pain in her right shoulder while her trainer was
distracted. She then reported she could not continue
her workout and needed to stop.
(Id. at 28:15-22). He explained that if Mrs. Pryce had injured her rotator cuff
prior to the gym incident, she likely would have struggled with exercising or
experienced other difficulties with her shoulder. (Id. at 61:10-18, 62:10:15).
Dr. Hassan explained that, despite different ways to grip a medicine ball,
the grip would “not necessarily have a tremendous impact on the shoulder
injury as much as more of a wrist or an elbow.” (Tr. 29:20-22). He stated that
“[t]he way the shoulder is being swung or the mechanism of how the shoulder
is moved with any sort of weight is more of a factor in terms of mechanism of
injury[.]” (Id. at 29:22-25). In response to further inquiry, Dr. Hassan
[A]s long as there is an overhead mechanism involved,
that movement up and back down or rotating the
shoulder outwards is really the most important concept
behind an injury pattern like this. What you are holding
at the time could be irrelevant. We see these injuries
also with baseballs, which have very little weight, but it
is the mechanism of bringing the arm back awkwardly
or in an unexpected manner which causes injury itself.
(Id. at. at 30:12-19). 22
Dr. Hassan also explained to the Court what he saw in the MRI films of
Mrs. Pryce’s shoulder. (See Tr. 34:22-37:13). He testified that he observed a
Dr. Hassan also explained that in evaluating Mrs. Pryce, he considered that a trainer’s
distraction could lead to injury because if the person exercising is not being watched by
their trainer, they could have “potentially poor form, potentially awkward mechanics.”
partial rotator cuff tear and a superior labrum (or “SLAP”) tear, which were
apparent from the gray discoloration in the tendon, a sign of fluid entering
through the tendon. (Id. at 35:11-36:13). Dr. Hassan was also able to observe
in the MRI images that Mrs. Pryce’s shoulder joint was inflamed. (Id. at 36:1337:1). Dr. Hassan referred to Mrs. Pryce’s injury as a Type 3 or “bucket
handle” tear. (Id. at 37:3-13).
Dr. Hassan explained that, typically, a Type 3 labral tear or a “bucket
handle” tear occurs due to a traumatic event. (Tr. 37:19-21). He noted that
“even if [Mrs. Pryce] had a little bit of degeneration or weakened labrum it takes
an event, it takes torque or a sudden force on the part of the labrum to create
that buck[et] handle, that SLAP tear.” (Id. at 37:23-38:1). The tear he saw in
the MRI films would not happen from “normal day-to-day use,” but would
usually take “abnormal force, not a regular day-to-day event.” (Id. at 38:2-5).
Dr. Hassan explained that the most common mechanisms causing a Type 3
SLAP tear are overhead exercises and throwing. (Id. at 39:7-12). 23
Dr. Hassan also opined on Mrs. Pryce’s course of treatment following her
injury, and the surgery that took place roughly a month after her injury.
(Tr. 39:13-40:13). He explained that he is among those surgeons who believe
if you identify or suspect a traumatic injury of the sort
and the person is a good candidate for it, meaning
they’re going to utilize or reap the benefits of the
Dr. Hassan also testified that Mrs. Pryce had a Type 2 acromion, which is a genetic
condition that presents as curved or downward-dipping. (Tr. 97:19-98:5). A Type 2
acromion is the most common type of acromion and is a risk factor for shoulder
impingement syndrome in rotator cuff tears. (Id. at 98:8-99:22).
surgery; they’re active, they’re not a sedentary person,
it is causing dysfunction and symptoms in them and
they desire to resume a similar activity level, that would
be a good candidate to expedite or move forward
(Id. at 40:1-8). From reviewing the operative report, Dr. Hassan was able to
identify that “during her right shoulder arthroscopy she had a repair of her
rotator cuff tear. She had a subacromial decompression and acromioplasty,
she had debridement of both her labral and biceps tendon tears, and a
synovectomy was also performed.” (Id. at 40:16-20). He explained to the
Court, in detail, how the surgery took place, and what a patient could expect
during the recovery period. (Id. at 42:1-45:23, 46:5-18).
Dr. Hassan also noted that Mrs. Pryce started going to physical therapy
after her surgery, which is when she began to develop Complex Regional Pain
Syndrome (“CRPS”). (Tr. 47:3-7). Dr. Hassan explained that CRPS is difficult
to diagnose and there is a good deal of variability in treatment for CRPS. (Id. at
47:10-20). In his opinion, the best course of treatment is a pain modulator
medication, aggressive therapy to prevent soft tissue contraction or loss of
function, and constant monitoring. (Id. at 47:21-48:6). Dr. Hassan opined
that Mrs. Pryce’s CRPS was caused by either her initial trauma or her surgery.
(Id. at 48:23-49:2, 60:20-24).
Dr. Hassan also testified about the examination he conducted of Mrs.
Pryce. (Tr. 50:19-51:7). He explained that there was asymmetry in her
supraspinatus muscles (the muscles on the back of the shoulder blade), which
indicated to him that she may have had a loss of function in the muscle group
on the right side; an inability to properly use the muscle group; or an ongoing
problem such as a continued tear. (Id. at 51:5-18). He explained that it is very
common, after a rotator cuff injury and surgery, to have residual atrophy,
meaning that the muscle has not fully healed. (Id. at 52:6-18). Dr. Hassan
also observed that Mrs. Pryce had reduced range of motion (id. at 53:1-54:1),
and some ongoing impingement (id. at 53:11-54:15).
Dr. Hassan explained that, given that Mrs. Pryce had residual symptoms
three years after her surgery, a full recovery was unlikely. (Tr. 63:11-16; see
also id. at 63:16-25). Moreover, Dr. Hassan considered it likely that Mrs. Pryce
would require further medical treatment. (Tr. 64:4-19). He explained that if
she experiences further degenerative changes over time, she may be a
candidate for further surgery. (Id. at 64:19-25). Even if Mrs. Pryce did not
need further surgery, Dr. Hassan believed that she would at least need
occasional medications and cortisone injections going forward. (Id. at 65:1518).
Dr. Andrew Bazos
At trial, the Court accepted Dr. Bazos as an expert in the field of
orthopedic surgery. (Tr. 693:22-694:5). 24 Dr. Bazos maintains a general
orthopedic practice with a subspecialty in sports medicine. (Id. at 695:18-20).
Dr. Bazos is a graduate of Harvard College and Yale University School of Medicine.
(Tr. 694:25-695:2). He did his residency in orthopedics at Columbia University and
then did a fellowship in shoulder and knee surgery and sports medicine at NYU
Hospital for Joint Diseases. (Id. at 695:6-10). He is board certified in orthopedic
surgery. (Id. at 695:11-14).
Approximately 90% of his practice involves seeing and treating patients with
orthopedic injuries. (Id. at 696:1-7). 25 He focuses on knee and shoulder
surgery. (Id. at 695:22-25). Dr. Bazos estimated that he has performed
approximately 5,000 arthroscopic procedures on shoulders. (Id. at 696:20-23).
Dr. Bazos explained that an orthopedic surgery evaluation would consist
of: (i) finding out what happened to the patient; (ii) conducting an examination
focused on the bones, muscles, nerves, ligaments, and tendons; and
(iii) explaining in lay terms the nature of the injury and treatment. (Tr. 698:1320). He also explained that, when performing an orthopedic evaluation, he
reviews the patient’s records; talks to the patient about their history and
course of treatment; listens to the patient’s complaints; and discusses the
patient’s current level of function. (Id. at 699:1-14).
Dr. Bazos examined Mrs. Pryce on March 28, 2019, at his office in
Manhattan. (Tr. 698:21-25). He took her history and was advised that she
injured her right shoulder doing an exercise at the gym. (Id. at 699:15-22). He
found it significant that Mrs. Pryce did not seek immediate medical attention
after the event that she claimed caused her injury. (Id. at 700:1-5). As part of
his evaluation, Dr. Bazos reviewed: (i) Mrs. Pryce’s records from South Shore
Orthopedic Group; (ii) notes from Mrs. Pryce’s surgery; and (iii) Mrs. Pryce’s
physical therapy notes. (Id. at 700:6-18). He also reviewed the report of the
Dr. Bazos testified that less than 10% of his practice consists of providing litigation
support and evaluation services. (Tr. 696:24-697:8). Approximately 90% of his forensic
services are on behalf of defense attorney firms. (Id. at 743:14-20).
MRI performed on Mrs. Pryce’s right shoulder approximately two weeks after
her injury. (Id. at 700:19-22).
Dr. Bazos testified that the MRI report indicated that the MRI did not
show signs of fresh tearing from recent trauma, despite Mrs. Pryce’s claim that
she had been injured two weeks prior to the date of the MRI. (Tr. 702:6-17). 26
He explained that when there is a fresh injury to the shoulder and the patient
gets an MRI two weeks later, the MRI should show blood, swelling, and extra
fluid. (Id. at 715:5-9). He testified an acute muscle or tendon tear could be
detected in an MRI for weeks to months after the injury. (Id. at 715:9-10). He
explained that there were abnormalities or tears in certain parts of Mrs. Pryce’s
shoulder, but that such findings were consistent with wear-and-tear changes
in an individual over the age of 35. (Id. at 707:12-708:10). 27
Dr. Bazos also conducted an examination of Mrs. Pryce that showed that
she had substantial range of motion in her neck and both shoulders, great
strength, and a normal neurovascular structure. (Tr. 708:21-24, 713:16-22).
Based on his evaluation of Mrs. Pryce, Dr. Bazos testified that she likely
sprained or strained some of the tissues around her shoulder. (Id. at 714:5-18,
740:17-21, 745:19-23). More pointedly, Dr. Bazos opined that the labrum and
Dr. Bazos testified that if the MRI films had been provided to him, he would have
reviewed them; however, he also explained that he relies on well-written MRI reports in
his practice. (Tr. 704:1-9).
Dr. Bazos testified about the three types of acromions and explained that someone with
a Type 2 acromion would experience more rubbing of the muscle and worse injuries
over time. (Tr. 705:12-706:6). Indeed, since Mrs. Pryce has a Type 2 acromion, he
believed her to be is at increased susceptibility for a rotator cuff tear and impingement
syndrome. (Id. at 706:16-707:5).
rotator cuff tears that prompted Mrs. Pryce’s arthroscopic surgery were not
caused by the exercises she performed at the July 2, 2015 training session, but
rather were the product of “wear and tear” inherent in aging. (Id. at 707:12708:10, 714:5-715:12, 716:18-22, 777:2-778:3). He explained that a typical
presentation of a rotator cuff tear from acute trauma is immediate, severe pain;
an inability to move the arm; difficulty sleeping; swelling; weakness; and a
dramatic loss of motion. (Id. at 713:2-11). 28 He also testified that nothing in
Mrs. Pryce’s medical records, nor his examination of her, suggested that the
bones, muscles, nerves, ligaments, or tendons in her shoulder were
permanently altered by her injury. (Id. at 716:8-17).
Dr. Bazos also opined on the diagnoses and treatment protocols that
Mrs. Pryce received from her treating medical professionals. He testified that
the protocol for treating a soft tissue shoulder injury of this sort is an initial
examination, which Dr. Rizzo performed; x-rays, which were also taken;
and — given Mrs. Pryce’s examination and history — physical therapy for four
to six weeks. (Tr. 715:20-24). Dr. Bazos testified that, in his medical opinion,
the MRI obtained in this case was premature and did not meet orthopedic
protocols, and the surgery, which was performed a month later without
conservative care, was not appropriate. (Id. at 715:24-716:3). 29
Dr. Bazos testified that one can also sustain a chronic rotator cuff tear that happens
over years, but that a chronic tear would cause inconsistent shoulder pain that
sometimes fades and sometimes gets worse. (Tr. 713:12-15).
Dr. Bazos also testified that it is part of his practice, and has been the widely accepted
practice for over 25 years, to take intraoperative photographs during an arthroscopy.
(Tr. 711:15-25). Dr. Bazos said that he was not provided with intraoperative photos of
Finally, Dr. Bazos testified that Mrs. Pryce does not suffer from CRPS,
which he described as a debilitating nerve disorder that causes changes in
sensation, temperature, hypersensitivity, and hair loss. (Tr. 720:14-18,
721:24-722:5, 723:2-4). He explained that CRPS is a severe problem that is
usually permanent. (Id. at 725:6-8). He attributed the burning in Mrs. Pryce’s
arm instead to a numbing agent that the anesthesiologist would have
administered prior to her surgery. (Id. at 720:5-13). Dr. Bazos observed that
he has never seen CRPS from a shoulder arthroscopy, but he has seen, on
many occasions, the types of nerve symptoms Mrs. Pryce experienced arise
from the anesthesiologist’s placement of the nerve block. (Id. at 723:21724:11). Dr. Bazos also testified that there is nothing to suggest Mrs. Pryce
will need a future surgery based on this incident. (Id. at 720:22-721:4).
Dr. Edward Weiland
Finally, the Court accepted Dr. Weiland, a board-certified neurologist, as
an expert in the field of neurology. (Tr. 637:21-24). Dr. Weiland was retained
by NYSC to conduct a neurological evaluation of Mrs. Pryce and was paid
$7,500 to testify in court. (Id. at 638:23-639:15). 30 He conducted a
Mrs. Pryce’s procedure and there was nothing in Dr. Rizzo’s operative report to indicate
that intraoperative photos were taken. (Id. at 712:5-9). He testified that he has never
done an arthroscopy without generating intraoperative photos and that it is a breach of
standard procedure to fail to take such photos. (Id. at 712:10-25, 727:12-21).
Dr. Weiland has been testifying as a defense expert since the early to mid-1990s.
(Tr. 653:7-9). He did not dispute that he has testified for the defense more than 200
times, and he testified that he believes that all the medical evaluations he had
performed, at least as of 2011, were for the defense. (Id. at 653:10-18, 656:2-6). In
2012, he conducted 10 to 15 exams per week on behalf of defendants. (Id. at 656:7-12).
Approximately half of his practice is dedicated to litigation-related medical exam-type
work. (Id. at 673:3-5).
neurological evaluation of Mrs. Pryce on March 15, 2019. (Id. at 639:2). Dr.
Weiland explained that a neurological evaluation is an “evaluation of the
central nervous system, the spinal cord, peripheral nerves that originate from
the spinal cord, and the muscle connections that those peripheral nerves make
with the muscles to effect bodily function.” (Id. at 639:17-21). 31
As part of his evaluation, Dr. Weiland reviewed: “hospital records on the
date that the shoulder surgical procedure was performed which was July 29,
2015”; “an evaluation … Dr. Demchuk performed on July 23, 2015”; “follow up
orthopedic treatment notes submitted by Dr. Rizzo for services performed on
7/14/15 through 1/26/16”; “an examination before trial report dated 2/8/19”;
and “[p]hysical therapy treatment records.” (Tr. 646:10-20).
Dr. Weiland testified as follows regarding his neurological examination of
The findings regarding the neck area and right arm,
there were surgical scars noted in the area of the right
shoulder which would have been consistent with an
arthroscopic procedure performed at that site, and I
indicated there was some minor restriction of range of
motion activities of the right shoulder when compared
to the left shoulder. The remainder of the neurologic
examination regarding both the upper and lower
extremity as well as the posterior aspect of the spine
was completely within normal limits. I did not find any
atypical motor activity. There were no signs of any
sensory abnormalities involving the upper extremities.
There were no reflex abnormalities. There were no
According to Dr. Weiland, the process of conducting a neurological evaluation of a
patient includes identifying the reported injury or medical condition, obtaining a
patient’s history (including treatment rendered before the exam), assessing ancillary
medical conditions that may be relevant to the examination, reviewing medical records
that have been provided to inform the clinical evaluation, and providing some clinical
information. (Tr. 640:3-9).
functional impairments with the use
extremities and specifically the right arm.
(Tr. 647:9-22). He also testified that there was no clinical evidence to support a
finding that Mrs. Pryce had CRPS, nor did he believe Mrs. Pryce had a
peripheral nerve injury in her right arm. (Id. at 647:23-648:2, 650:13-16).
CONCLUSIONS OF LAW
Overview of the Relevant Legal Standards
The parties agree that New York law governs Plaintiffs’ claims. (See
generally Pl. FFCL; Def. FFCL). The Court therefore begins by addressing the
negligence claim brought by Mrs. Pryce, since Mr. Pryce’s claim is derivative of
hers. To prevail on her claim, Mrs. Pryce must prove, by a preponderance of
the evidence, that: (i) NYSC or Reyes owed her a duty of care; (ii) the duty was
breached; and (iii) the breach proximately caused her injuries. See Manhattan
by Sail, Inc. v. Tagle, 873 F.3d 177, 183 (2d Cir. 2017); Pasternack v. Lab. Corp.
of Am. Holdings, 27 N.Y.3d 817, 825 (2016). In this regard, a preponderance of
the evidence requires a showing that something is “more likely than not” true.
United States v. Yannai, 791 F.3d 226, 242 (2d Cir. 2015); see also N.Y. Pattern
Jury Instr. 1:23 (“The law requires that in order for the plaintiff to prevail on a
claim, the evidence that supports [her] claim must appeal to you as more
nearly representing what took place than the evidence opposed to [her] claim.”).
The Duty of Care and Assumption of Risk
“The threshold question in any negligence action is: does defendant owe
a legally cognizable duty of care to plaintiff?” Hamilton v. Beretta U.S.A. Corp.,
96 N.Y.2d 222, 232 (2001). Liability for negligence arises when a defendant
owes a plaintiff a duty of care and fails to take reasonable measures to prevent
injury arising from conduct that is reasonably foreseeable. See Colarusso v.
Dunne, 732 N.Y.S.2d 424, 427 (2d Dep’t 2001) (citing Gordon v. City of New
York, 70 N.Y.2d 839, 841 (1987); Kush v. City of Buffalo, 59 N.Y.2d 26, 29-30
(1983)). However, NYSC argues that it is entitled to judgment in its favor
because Mrs. Pryce assumed the risk of injury by voluntarily exercising at the
gym. (See Def. FFCL 19-28).
Under New York law, “[t]he doctrine of primary assumption of risk
provides that a voluntary participant in a sporting or recreational activity
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.”
DiBenedetto v. Town Sports Int’l Inc., 987 N.Y.S.2d 102, 103 (2d Dep’t 2014)
(citing Morgan v. State, 90 N.Y.2d 471, 484 (1997)). “The policy underlying the
primary assumption of risk doctrine is ‘to facilitate free and vigorous
participation in athletic activities.’” Philius v. City of New York, 75 N.Y.S.3d
511, 513 (2d Dep’t 2018) (quoting Benitez v. N.Y.C. Bd. of Educ., 73 N.Y.2d 650,
657 (1989)). “The application of the doctrine fosters these socially beneficial
activities by shielding coparticipants, activity sponsors or venue owners from
potentially crushing liability.” Id. (internal quotation marks omitted) (quoting
Custodi v. Town of Amherst, 20 N.Y.3d 83, 88 (2012)).
The doctrine is not an absolute defense, but rather a measure of the
defendant’s duty of care. Morgan, 90 N.Y.2d at 483-84 (citing Turcotte v. Fell,
68 N.Y.2d 432 (1986)). “[W]hen a plaintiff assumes the risk of participating in a
sporting event, the defendant is relieved of legal duty to the plaintiff; and being
under no duty, he cannot be charged with negligence[.]” Cotty v. Town of
Southampton, 880 N.Y.S.2d 656, 659 (2d Dep’t 2009) (internal quotation marks
omitted) (quoting Turcotte, 68 N.Y.2d at 438). Primary assumption of risk can
be a complete bar to recovery. See DiBenedetto, 987 N.Y.S.2d at 104 (“[W]e
agree … that the plaintiff assumed the risk of her injuries and was barred from
recovery by the doctrine of primary assumption of risk.”); Lamey v. Foley, 594
N.Y.S.2d 490, 494 (4th Dep’t 1993) (“Primary assumption of risk eliminates or
reduces the tortfeasor’s duty of care to the plaintiff and, in the former case,
constitutes a complete bar to recovery.”).
The assumption of risk doctrine has been extended to cases involving
injuries sustained in gyms and fitness centers. See, e.g., Marcano v. City of
New York, 99 N.Y.2d 548, 549 (2002) (holding that plaintiff assumed the risk of
injury when he swung on, and subsequently fell off, an exercise apparatus
constructed over a concrete floor); Ramirez v. Lucille Roberts Health Clubs, Inc.,
973 N.Y.S.2d 572, 573 (2d Dep’t 2013) (finding that plaintiff, a participant in
step aerobics classes, assumed the risk of injury by voluntarily participating in
the class); Baccari v. KCOR, Inc., 971 N.Y.S.2d 458, 459 (2d Dep’t 2013)
(applying assumption of risk to plaintiff, an experienced boxing instructor, who
was injured stepping into defendant’s boxing ring).
The focus of the inquiry into assumption of risk is the injured party’s
reasonable expectations and awareness of the risks inherent in the subject
The applicability of the doctrine depends on the nature
and scope of the participant’s awareness and consent.
As a general rule, participants properly may be held to
have consented, by their participation, to those injurycausing events which are known, apparent[,] or
On the other hand, the defendant
generally has a duty to exercise reasonable care to
protect athletic participants from unassumed,
concealed[,] or unreasonably increased risks.
establish plaintiff’s assumption of risk, a defendant
must show that plaintiff was aware of the defective or
dangerous condition and the resultant risk, although it
is not necessary to demonstrate that plaintiff foresaw
the exact manner in which his injury occurred.
Whether it can be concluded that a plaintiff made an
informed estimate of the risks involved in an activity
before deciding to participate depends on the openness
and obviousness of the risk, plaintiff’s background,
skill, and experience, plaintiff’s own conduct under the
circumstances, and the nature of defendant’s conduct.
Perhaps the most important factor, however, is whether
the risk is inherent in the activity. A plaintiff will not be
held to have assumed those risks that are not
inherent ... i.e., not “ordinary and necessary” in the
Lamey, 594 N.Y.S.2d at 495 (internal quotation marks and citations omitted);
see also Livshitz v. U.S. Tennis Nat’l Ass’n, 761 N.Y.S.2d 825, 828 (N.Y. Civ. Ct.
Queens Cty. 2013) (“Although defendants generally have no legal duty to
eliminate (or protect a plaintiff against) risks inherent in the sport itself, it is
well established that defendants generally do have a duty to use due care not
to increase the risks to a participant over and above those inherent in the
Finally, an “important counterweight to an undue interposition of the
assumption of risk doctrine is that participants will not be deemed to have
assumed the risks of reckless or intentional conduct or concealed or
unreasonably increased risks.” Morgan, 90 N.Y.2d at 485 (internal citations
omitted). As one court has noted, the duty of a teacher to use reasonable care
to prevent injury to students “includes the obligation not to direct a student to
do that which is unreasonably dangerous and to provide such instruction and
supervision as is reasonably required to safely perform the directed tasks.”
Yarborough v. City Univ. of N.Y., 520 N.Y.S.2d 518, 520-21 (N.Y. Ct. Cl. 1987)
NYSC Is Not Entitled to Judgment on Partial Findings
Pursuant to Rule 52(c)
To begin, NYSC seeks a judgment as a matter of law on its assumption of
risk defense pursuant to Federal Rule of Civil Procedure 52(c). (See Def. FFCL
19-25). On this point, NYSC argues that by signing the membership
agreement, Mrs. Pryce acknowledged that she understood the inherent risks
associated with the use of the NYSC’s equipment, and, further, that by
voluntarily using NYSC’s equipment and personal training services, she
“assumed the inherent risks associated with participating in a personal
training session in general, and of the specific new exercise in particular.” (Id.
In support of its argument for judgment as a matter of law, NYSC cites
several New York State cases with ostensibly similar facts, in which courts
have granted summary judgment based on assumption of risk. (Def. FFCL 2123). They include Pineda v. Town Sports Int’l Inc., Index No. 113493/2005,
2009 NY Slip. Op. 32582(U), 2009 WL 3780695 (N.Y. Sup. Ct. N.Y. Cty. Nov. 5,
2009), where the court held that a release signed by the plaintiff was
enforceable to the extent of insulating Town Sports from liability for “injuries
resulting from accidents or injuries of any kind which may be sustained by
reason of or in connection with a member’s use of the facilities.” Id. at *3
(citing Trummer v. Niewisch, 792 N.Y.S.2d 596, 597 (2d Dep’t 2005)). From
there, the Pineda court found that Town Sports was entitled to judgment as a
matter of law because the plaintiff’s injuries were not due to any negligence on
the gym’s part, but rather resulted from the inherent, usual, and ordinary risks
associated with weight training. Id. at *5. NYSC also cites Blume v. Equinox
Holdings, Inc., No. TS-300345/10, 2013 WL 3814946 (N.Y.C. Civ. Ct. N.Y. Cty.
July 17, 2013), where the court rejected the plaintiff’s efforts to disclaim
assumption of risk because of the involvement of a personal trainer. In
particular, the court held that while the plaintiff had attempted to frame his
activity as “exercise under the supervision of a paid expert in a controlled
setting,” the primary assumption of risk doctrine still applied. Id. at *2; see
also Butt v. Equinox 63rd Street, Inc., 32 N.Y.S.3d 160, 160 (1st Dep’t 2016)
(finding defendant gym entitled to judgment as a matter of law where evidence
established that plaintiff, an experienced weightlifter, appreciated the risks of
the exercise he conducted, and where there was no evidence that the personal
trainer provided inadequate attention as a spotter during plaintiff’s bench
Unsurprisingly, Plaintiffs respond with several cases in which courts
have denied summary judgment on assumption of risk grounds. (Pl. FFCL 2832). For example, in Corrigan v. Musclemakers Inc., 686 N.Y.S.2d 143 (3d Dep’t
1999), the Appellate Division upheld the trial court’s denial of a motion for
summary judgment, finding that the plaintiff had not assumed the risk
inherent in using a treadmill. Id. at 145. And with respect to the interplay
between the assumption of risk doctrine and personal training, Plaintiffs cite
Mellon v. Crunch, No. 7974/09, 2011 WL 2712956 (N.Y. Sup. Ct. Kings Cty.
July 8, 2011), where the court denied summary judgment in a case where the
plaintiff was injured while doing a plyometric exercise that her trainer had
demonstrated for her, preferring instead that the issue go to the jury. Id. at *4;
see also Caggiano v. LA Fitness & Wellness, Index No. 600877-15, 2017 N.Y.
Misc. LEXIS 5648, at *1 (N.Y. Sup. Ct. Nassau Cty. Apr. 25, 2017) (denying
motion for summary judgment in case where plaintiff was injured during an
initial evaluation by a personal trainer).
The Court acknowledges that in other factual circumstances, courts have
been willing, and less willing, to resolve assumption of risk issues as a matter
of law. Here, however, the Court is mindful that “[t]he application of the
doctrine of assumption of risk is generally a question of fact to be resolved by a
jury.” Layden v. Plante, 957 N.Y.S.2d 458, 461 (3d Dep’t 2012). What is more,
the Court is loath to resolve the case as a matter of law where it has identified
material factual disputes between the parties, including a dispute as to
whether Reyes “‘unreasonably heightened the risks to which [plaintiff] was
exposed’ beyond those usually inherent in weight-lifting.” Id. (quoting Myers v.
Friends of Shenendehowa Crew, Inc., 819 N.Y.2d 143, 147 (3d Dep’t 2006)). On
the one hand, as Defendants argue, Mrs. Pryce exercised with weights
voluntarily; she was aware that such exercises carried with them an inherent
risk of injury; and while she found the exercise challenging before feeling the
pull in her shoulder, she never told Reyes or asked for further instruction on
how to do the exercise. (See Def. FFCL 4-6, 22-23). On the other hand, the
Court cannot ignore the fact that Mrs. Pryce was new to weight training and
was paying for special instruction from Reyes. See Livshitz, 761 N.Y.S.2d at
830. Accordingly, the Court will not grant NYSC judgment as a matter of law.
NYSC Did Not Breach Its Duty of Care
Unlike the procedural postures of the overwhelming majority of cases
cited by the parties, the Court here sits also as trier of fact. And while the
Court has identified factual disputes — material and otherwise — between the
parties, it is also charged with resolving those disputes. In so doing, the Court
finds that Mrs. Pryce’s negligence action is barred by the assumption of risk
To review, under the assumption of risk doctrine, NYSC’s duty of care to
Mrs. Pryce was “to use due care not to increase the risks to [her] over and
above those inherent in the [activity].” Livshitz, 761 N.Y.S.2d at 828. A
plaintiff’s consent is the touchstone of the doctrine. See, e.g., M.F. v. Jericho
Union Free Sch. Dist., 100 N.Y.S.3d 337, 340 (2d Dep’t 2019) (granting
summary judgment to defendant because plaintiffs “failed to raise a triable
issue of fact regarding whether the defendant’s alleged negligent supervision
constituted a failure to exercise reasonable care in protecting the plaintiff from
an unreasonably increased risk,” where plaintiff was “a consenting participant
in a qualified activity [and] [was] aware of the risks; ha[d] an appreciation of the
nature of the risks; and voluntarily assume[d] the risks”); Tadmor v. N.Y. Jiu
Jitsu Inc., 970 N.Y.S.2d 777, 779 (1st Dep’t 2013) (reversing trial court and
granting summary judgment to defendant where plaintiff “had an opportunity
to observe [his opponent] before entering the cage” and “demonstrated his
appreciation of the risk before sparring”); cf. Stoughtenger v. Hannibal Cent.
Sch. Dist., 935 N.Y.S.2d 430, 432 (4th Dep’t 2011) (“Inasmuch as plaintiff was
participating in a compulsory physical education class and his participation in
the wrestling unit was mandatory, the defense of primary assumption of risk is
not applicable.”); Irish v. Deep Hollow Ltd., 671 N.Y.S.2d 1024, 1024 (2d Dep’t
1998) (reversing the trial court’s grant of summary judgment where “there
exists a question of fact as to whether the plaintiff assumed the increased risk
of riding on a horse at a cantering pace after being told that the horse would
only travel at a walking pace”).
Even accepting Mrs. Pryce’s testimony that Reyes walked approximately
12 feet away from her during her personal training session, the Court finds
that Mrs. Pryce has not established facts indicating that she did not freely
consent to performing the exercise in question, that Reyes or anyone else at
NYSC concealed any risks associated with the physical training Mrs. Pryce
sought, or that Reyes’s actions unreasonably increased the risks above the
level inherent in the activity to which Mrs. Pryce consented. Thus, Plaintiffs
cannot establish a breach of a duty of care such that NYSC may be held liable
First, Mrs. Pryce acknowledged, when she signed the membership
agreement, that she understood that “[a]ny strenuous athletic or physical
activity involves certain risks,” and “that there are certain risks associated with
the use of a health club and the use of fitness equipment[.]” (Def. Ex. 3). 32
During trial, she reiterated her agreement that exercise in general, and lifting
weights specifically, carries a risk of injury, even when conducted under the
supervision of a trainer. (Tr. 438:14-440:3). Understanding this risk, she
voluntarily joined NYSC, signed up for personal training, and performed the
exercises Reyes prescribed for her. (Id. at 440:8-441:2). Her consent limited
the general duty of care owed to her — i.e., NYSC may only be held liable if
Reyes, by either action or inaction, concealed, misrepresented, or unreasonably
increased the commonly-understood risks to Mrs. Pryce of her use of NYSC’s
facility and equipment. See DiBenedetto, 987 N.Y.S.2d at 103; see also
Morgan, 90 N.Y.2d at 485 (“A showing of some negligent act or inaction,
referenced to the applicable duty of care owed to him by the defendants, which
The parties tussle over whether New York General Obligations Law 5-326 bars
enforcement of any waiver provision in the membership agreement. (Compare Pl. FFCL
27-28, with Def. FFCL 19-20). The Court need not resolve the dispute, as it relies on
the membership agreement as part of its assumption of risk analysis, rather than as a
standalone bar to recovery.
may be said to constitute a substantial cause of the events which produced the
injury is necessary.” (internal quotation marks omitted) (quoting Benitez, 73
N.Y.2d at 659)).
Second, as Mrs. Pryce herself showed the Court, she performed an
exercise, which Reyes had demonstrated for her beforehand, in which she
slowly moved an 8-pound medicine ball across the front of her body. Nothing
in the record suggests that this was an inherently dangerous exercise, that it
was contraindicated specifically for Mrs. Pryce given her known prior injuries,
or that Mrs. Pryce expressed concerns about performing it. Mrs. Pryce was not
lifting a large amount of weight that she could not control on her own, nor was
she using heavy equipment, moving at a fast pace, executing any sort of jerking
motion, or performing exercises that would likely exacerbate an underlying
condition of which Reyes was aware. See Layden, 957 N.Y.S.2d at 461 (finding
triable issues of fact as to whether personal trainer’s actions unreasonably
heightened the risks to which plaintiff was exposed beyond those usually
inherent in weight training, where trainer instructed plaintiff to perform an
exercise that was contraindicated for a person, like plaintiff, with a herniated
disc). The exercise Mrs. Pryce performed in Court was steady and careful and
appeared appropriately tailored for a client who was in her third month of
personal training. The Court also notes Mrs. Pryce’s testimony that,
immediately before her injury, she was able to complete two sets of ten
repetitions of the exercise on her left side without incident. (Tr. 367:9-20).
Third, Mrs. Pryce was unable to demonstrate or explain the mechanism
by which she was injured. Plaintiffs point to Reyes’s testimony that if a client
is left unsupervised, “the client could get hurt by doing the wrong technique,
the wrong form, using the wrong weight[.]” (Tr. 170:15-18). Of course, a
person could get hurt if she has the wrong technique or uses too much weight,
but Plaintiffs have not demonstrated that this proposition applies in this case.
Mrs. Pryce does not contend that Reyes demonstrated how to perform the
exercise improperly. Nor did she seriously argue at trial that the weight was
too heavy or that she utilized improper form when performing the exercise. To
the contrary, Mrs. Pryce testified that Reyes demonstrated the exercise to her
and observed her performing the exercise on her left side (id. at 368:5-12), that
she did the exercise as she had been instructed (id. at 568:17-19), and that she
was able to complete approximately twenty repetitions on her left side
successfully (id. 367:9-14).
Plaintiffs make much of the fact that Mrs. Pryce testified that she was
“struggling” with repetitions of the exercise towards the end of each set, prior to
sustaining the injury. (See Pl. FFCL 33, 35). As Mrs. Pryce clarified, however,
when she used the term “struggling,” she meant to convey that she was
exerting a lot of effort, as is common when exercising. She did not mean that
she experienced the sort of pain or discomfort that would indicate the activity
was harmful. Mrs. Pryce always understood that she could stop an exercise if
she felt that it was too difficult to complete. (Tr. 564:4-13). And at no point
did she tell Reyes that she was having any difficulty with the exercise. (Id. at
508:25-509:22). As far as Mrs. Pryce showed the Court, she properly
performed the exercise at all times, including when she felt the pull in her
Finally, because there is no evidence that Mrs. Pryce had improper form,
it is unclear what Reyes could have done to prevent her injury even had he
been standing right next to her. Cf. Stoughtenger, 935 N.Y.S.2d at 432
(denying plaintiff judgment as a matter of law on the issue of proximate cause
where the record was “devoid of any evidence” that plaintiff’s elbow injury was
the result of negligence “rather than conduct that could occur even under the
most intense supervision in the ordinary course of a … middle school physical
education class”). Once Mrs. Pryce advised Reyes of the pull that she felt, he
immediately stopped the session and stretched her out. (Tr. 370:23-371:14).
The Court does not overlook Reyes’s testimony that, as a general matter, it
would be unprofessional and potentially unsafe for a trainer to lose sight of a
client while the client was actively performing an exercise (id. at 287:25288:20), and that such conduct might violate NYSC’s training policy (id. at
289:21-290:11). Nevertheless, Plaintiffs failed to prove that Reyes permitted,
let alone encouraged, Mrs. Pryce to perform the exercise in an unsafe manner.
On the facts established at trial regarding the nature of the exercise Mrs. Pryce
performed, the Court cannot conclude that Reyes’s conduct, even if a deviation
from best practices, unreasonably increased Mrs. Pryce’s risk of injury.
While Mrs. Pryce does not make the argument explicitly, she is, in
essence, relying on the doctrine of res ipsa loquitor, which “enables a plaintiff to
prevail in a certain type of circumstance in proving negligence even though the
plaintiff cannot show exactly who or what caused her injury.” Manhattan by
Sail, 873 F.3d at 180. Mrs. Pryce’s theory of the case reduces to the
proposition that Reyes’s walking 12 feet away from her caused her injury. But
the Court may infer negligence under the res ipsa loquitur doctrine only where:
“[i] the event is of a type that ordinarily would not occur in the absence of
negligence; [ii] it is caused by an agency or instrumentality under the exclusive
control of the party charged with negligence; and [iii] it is not due to any
voluntary action or contribution on the part of injured party. Id. Plaintiffs
failed to introduce testimony or evidence as to these elements at trial.
Nor can Plaintiffs reverse-engineer a finding of negligence through their
expert witness, Dr. Hassan. Dr. Hassan opined that Mrs. Pryce’s labral tear
was the product of “torque or a sudden force” (Tr. 37:23-38:1), or “abnormal
force” (id. at 38:2-5). But, at the risk of repeating itself, the Court watched,
repeatedly and with care, as both Reyes and Mrs. Pryce performed the core
diagonal crossover exercise in question. It cannot conclude that the exercise
demonstrated for it precipitated the claimed injuries to Mrs. Pryce’s shoulder.
For these reasons, the Court concludes that Mrs. Pryce has failed to
establish that NYSC breached a duty of care to her by putting her at a greater
level of risk than that to which she consented by engaging in physical training
with weighted equipment. Thus, she has not carried her burden of proof on
her negligence claim, and NYSC is entitled to judgment on such claim.
Further, NYSC is also entitled to judgment on Mr. Pryce’s loss of consortium
claim, which is derivative of Mrs. Pryce’s negligence claim. See Maidman v.
Stagg, 441 N.Y.S.2d 711, 713 (2d Dep’t 1981).
To be clear, the Court sympathizes with Mrs. Pryce for the pain and
discomfort she described at trial, and with both Plaintiffs for the losses
(financial and otherwise) to which they testified. However, on the record before
the Court, it cannot lay liability for these losses at the feet of NYSC. For the
reasons explained above, the Court directs the Clerk of Court to enter
judgment in favor of NYSC. The Clerk of Court is further directed to terminate
all pending motions, adjourn all remaining dates, and close this case.
March 31, 2021
New York, New York
KATHERINE POLK FAILLA
United States District Judge
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