Case No$.26$

NEGLIGENCE

Pappalardo v$.$ New York Health & Racquet Club

Appellate Division, First Department

$718$ NYS$2$d $287(2000)$

FACTS: Defendant New York Health & Racquet Club $("$HRC$\text{'})$ operates a health and fitness center on three floors in a building on $13$th Street in New York City. Plaintiff was a member of HRC$.$ While working out there with his friend Cheryl Joseph on January $21,1996$ he was injured while using a leg curl machine located in a room on the second floor of the building. The machine was one in a circuit of approximately ten exercise machines which ran parallel to a large window overlooking East $13$th Street. The window was approximately five feet high and eight feet wide, with the bottom edge less than $18$ inches above the floor.

The machine is operated by using one's legs to lift weights while laying face$-$down. The machine was situated so that the user faced the window. The testimony concerning the distance between the machine and the window varied and ranged from $18$ inches to three feet. Plaintiff and Ms$.$ Joseph testified that the space was not sufficient to constitute an aisle or walkway.

After completing one set of repetitions on the machine, plaintiff dismounted and stepped aside to enable Ms$.$ Joseph to begin exercising on it$.$ Seeking to stretch his hamstrings, plaintiff moved to the area near the window, standing almost directly in front of the machine occupied by Ms$.$ Joseph, with his back to the window. Plaintiff then noticed that his shoelace was untied and, while he "stepped back to tie the shoe", either bending over or squatting, the glass behind him shattered and he fell to the pavement below, suffering injuries.

Plaintiff claimed defendants violated their duty to maintain reasonably safe premises, and further that the doctrine of res ipsa loquitur applies thereby shifting the burden to defendants to refute the inference of negligence.

FIRST ISSUE: Did plaintiff prove that HRC violated its duty to maintain the property in a reasonably safe condition?

DECISION: No$.$

REASONING: One who owns or occupies premises has a duty to maintain the property in a reasonably safe condition to protect against injury to users of the premises. However, to recover damages a plaintiff must first establish that the landlord created or had actual or