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November 2015

New York Team Wins Summary Judgment in Traumatic Brain Injury Litigation

On November 5, New York/New Jersey partner Robert Modica and senior counsel Brian Middlebrook won summary judgment on behalf of their client, a local affiliate (“Affiliate”) of an international fitness organization.

Plaintiff alleged that the Affiliate was negligent in its ownership, operation and maintenance of the fitness facility, and particularly the manner in which a competition was held.  Plaintiff was participating in the pull-up portion of the competition when he fell off of the bar to a concrete floor, allegedly after other participants had similarly fallen.  Plaintiff claimed that the Affiliate should have placed safety mats below the bar, should have wiped the bar down after each participant, and should have ended the competition after the first participant fell. 

The damages claimed included a fractured skull and traumatic brain injury with resulting tremors of the hands.  A summary judgment motion was filed on the basis of primary assumption of risk, arguing that irrespective of the conditions complained of, Plaintiff was a voluntary participant in a sporting activity, could readily appreciate the open and obvious risks of engaging in the pull-up portion of the competition, and therefore assumed the risk of injury. 

Based upon the foregoing, the court held that the Plaintiff assumed the risk, that the Affiliate therefore owed no duty to the Plaintiff, and dismissed the action in its entirety.

Brian E. Middlebrook
Robert Modica



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