Miglino v. Bally Total Fitness of Greater N.Y., Inc.

2011 NY Slip Op 9603, 92 A.D.3d 148, 937 N.Y.S.2d 63 (App. Div.)



It is settled that a duty of reasonable care owed by a tortfeasor to a plaintiff is elemental to any recovery in negligence. To prove a prima facie case of negligence, a plaintiff must demonstrate the existence of a duty of care owed to the plaintiff, a breach of that duty, and that the breach of such duty was a proximate cause of his or her injuries. Absent a duty of care, there is no breach, and without a breach, there can be no liability. In addition, foreseeability of an injury does not determine the existence of duty. However, unlike foreseeability and causation, both generally factual issues to be resolved on a case-by-case basis by the fact finder, the duty owed by one member of society to another is a legal issue for the courts.


The estate's decedent had been playing racquetball at health club corporation's facility when he collapsed. A gym employee assessed the situation, called 911, but did not use the automated external defibrillator device (AED) for which he was trained to use upon the decedent. The decedent later died at a hospital. The estate executor brought a negligence suit against defendant based upon defendant's failure to use an automated external defibrillator device (AED) on the estate's decedent. The defendant sought to dismiss the complaint for failure to state a cause of action, which was denied by the court.


Was the health club liable in a negligence suit for failure to use the AED, which it was legally required to be provided at the facility?




The court held that the statute imposed an inherent duty on health clubs and gyms to make use of a statutorily required AED. The court found that the trial court properly denied defendant's motion to dismiss since its employee had assumed a duty by coming to the decedent's assistance but genuine issues of material facts existed as to why he did not make use of the AED and whether such failure was tantamount to not acting carefully. The court modified the trial court's order so as to grant dismissal to a second corporate defendant that did not own, operate or manage the subject health club.

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