Marcano v. City of New York

296 A.D.2d 43, 743 N.Y.S.2d 456, 2002 N.Y. App. Div. LEXIS 5923
CourtAppellate Division of the Supreme Court of the State of New York
DecidedJune 11, 2002
StatusPublished
Cited by3 cases

This text of 296 A.D.2d 43 (Marcano v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marcano v. City of New York, 296 A.D.2d 43, 743 N.Y.S.2d 456, 2002 N.Y. App. Div. LEXIS 5923 (N.Y. Ct. App. 2002).

Opinions

OPINION OF THE COURT

Buckley, J.

The issue here is, are there questions of fact concerning whether plaintiff assumed the risk of his injury? We answer in the affirmative, reinstate the complaint, and remand for further proceedings.

I.

This is an action for damages for serious personal injuries sustained by plaintiff Carlos Marcano while he was being detained on $2,500 bail at Rikers Island. There are no charges presently pending against plaintiff, and he has never been convicted of a crime. In 1988, plaintiff came to the United States from the Dominican Republic.

Certain facts are undisputed. On June 25, 1995 at approximately 1:10 p.m., plaintiff, age 34, was injured in the outdoor recreation yard of the West Facility on Rikers Island. Plaintiff fell from a set of metal, parallel exercise bars in the yard, striking his head on the cement beneath the bars and thereby becoming quadriplegic. Plaintiff had not seen or used these exercise bars before the time of this injury. Although plaintiff had seen metal exercise bars in parks, he had never seen exercise bars exactly like the ones from which he fell. Prior to plaintiff’s injury: (1) he had never used any parallel bars or dip bars; (2) no one had ever instructed him as to how such apparatus should be used; (3) no one had ever told him what exercises the bars were intended for; (4) he did not know what exercises the apparatus was designed for; and (5) he had never seen anyone use this apparatus. Plaintiff was never a member of a gym or an exercise club. Plaintiff had no exercise equipment in his home except dumbbells. Plaintiff’s only exercise was running in the parks and on the streets.

Plaintiff was totally unfamiliar with the use of this equipment. He had no experience or other basis for knowing: (1) that the parallel bars were too thick; (2) that the bars should not have been square; and (3) that the concrete under the parallel-dip bars, without absorbent padding, created a grave danger. There is no evidence that plaintiff in fact understood that the dimensions of these parallel bars were nonstandard and prevented him from maintaining a grip when [45]*45swinging. There is, moreover, evidence of an enhanced risk created by the unique circumstances of the manufacture of these parallel bars by defendants.

In his examination before trial, eyewitness Angel Hernandez, who is unacquainted with plaintiff, testified that he saw plaintiff take two quick steps, grasp the bars and jump up on them. As he watched, Hernandez observed that while plaintiff still held onto the bars, his momentum carried his legs forward over his head. Then as plaintiff’s legs went backward and up, Hernandez saw his arms give out, and saw him lose his grip on the bars and fall face down on the concrete beneath, hitting first his head and then his body.1 Hernandez had exercised on these same bars and testified that these bars are thicker than normal parallel or dip bars. He testified that there were no signs or instructions on how to use the exercise bars and that there was no matting or anything else to cushion the concrete beneath the exercise bars.

The then-Supervisor of Mechanics of Rikers Island and his welder, who together designed and built the metal exercise bars, agree that it was built economically from metal on hand, which was also used to build doors, partitions, window frames, and cages for air conditioning units. The dip bars were made of two by two square tubing, two inches square on each side for a total circumference of eight inches. The attached chin bar, however, was round rather than square, and was made of narrower tubing than the square tubing. In the construction of these bars, the designer and builder used no industry standards and sought no advice from engineers, other designers, manufacturers, purveyors, health clubs or gymnasts.

Plaintiff’s expert, Richard Nelson, Ph.D., a professor of bio-mechanics, the Founding Director of the Biomechanics Laboratory at Penn State University and a member of the Medical Commission of the International Olympic Committee, inspected the exercise bars and describes them as follows:

“a metal exercise apparatus with what appeared to be a chinning bar which was approximately 7 ft 8 inches from the ground. On either side of the chinning bar were metal bars 3 ft 8 inches in length, which were connected to and perpendicular to two [46]*46sets of parallel or dip bars. Each set of dip or parallel bars were 4 feet 2 inches long and 4 ft in height off the ground. Beneath the apparatus was a cement surface, not covered by any absorbent padding. No signs were posted indicating the purpose of the apparatus or how it was to be used.”

Dr. Nelson, in his affidavit, contends that the parallel bars have two defects which “unreasonably increased the risk of injury.” The first defect is that the squareness of the metal bars makes them difficult to grip, a design defect. The second defect is that the eight-inch grip circumference of the dip bars is larger than the industry standard which ranges from 37/s inches to 7Vs inches, with the usual between four to six inches in circumference.2

Dr. Nelson considers that plaintiff had never used this particular kind of exercise bars, had never used any dip bars of any kind, and had never seen exercise bars with a design identical to the bars at issue until the moment plaintiff used them, because this apparatus was of a unique design.

Furthermore, Dr. Nelson holds that defendant has defectively designed the exercise bars by constructing dip bars which are open at both ends as parallel bars are, whereas, dip bars designed by companies in the industry are closed on one end which makes it difficult if not impossible for the user to swing his or her legs back and forth.

Finally Dr. Nelson contends that the defendant created a uniquely dangerous condition by placing the bars over concrete rather than some absorbent material, and by failing to either warn or instruct or supervise plaintiff in the use and danger of the exercise bars.

Defendant offered no expert opinion to dispute the opinions of plaintiffs expert.

The IAS court granted defendants’ motion for summary judgment on the grounds that (1) any defects were open and obvious and (2) plaintiff had assumed the risk of falling when he engaged in exercise activity. While we agree that the square shape of these exercise bars was obvious, whether any [47]*47enhanced risk was created as a result of defendants’ negligence remains a disputed issue of fact. The record evidence shows that the City gave no consideration to the width to be used for the bars, that the width used is wider than the industry standard and that, according to uncontroverted expert testimony, plaintiff could not have maintained a proper grip with such width (see, Morgan v State of New York, 90 NY2d 471, 484-486). The record does not reveal that plaintiff possessed any familiarity with the risks posed by varying the shape or dimension of the bar (see, Turcotte v Fell, 68 NY2d 432, 437; Maddox v City of New York, 66 NY2d 270, 278-279; Bereswill v National Basketball Assn., 279 AD2d 292). This is not a case where the risk was demonstrated by prior contemporaneous incidents (Sajkowski v Young Men’s Christian Assn., 269 AD2d 105). A participant in recreational activity will not be deemed to have assumed unreasonably increased risks (see, Mauner v Feinstein, 213 AD2d 383; Lamey v Foley,

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Bluebook (online)
296 A.D.2d 43, 743 N.Y.S.2d 456, 2002 N.Y. App. Div. LEXIS 5923, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marcano-v-city-of-new-york-nyappdiv-2002.