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Duran v. Eastern Athletic Clubs LLC

Superior Court of Delaware

June 7, 2018

EDA M. DURAN, an individual, Plaintiff,
EASTERN ATHLETIC CLUBS LLC d/b/a HOCKESSIN ATHLETIC CLUB, a domestic corporation. Defendant.

          Date Submitted: April 24, 2018

         Upon Defendant's Motion for Summary Judgment: DENIED.

          Tara E. Bustard, Esquire and Matthew R. Fogg, Esquire (argued), Doroshow, Pasquale, Krawitz & Bhaya, 1208 Kirkwood Highway, Wilmington, Delaware, Attorneys for Plaintiff.

          Jennifer D. Donnelly, Esquire, Marshall Dennehey Warner Coleman & Goggin, 1007 N. Orange Street, Suite 600, Wilmington, Delaware, Attorney for Defendant.




         Plaintiff Eda M. Duran alleges she was injured while participating in a Zumba class when her right foot caught the edge of a mat containing weight equipment, causing her to fall into the weights. She claims she fell because she was focusing on the Zumba instructor, overcrowding forced her to shift toward the dangerous mat, and the Defendant permitted a dangerous condition to exist. The Defendant, Eastern Athletic Clubs LLC d/b/a Hockessin Athletic Club ("HAC"), has moved for summary judgment, arguing it owed no duty to warn Duran of the "open and obvious danger," i.e., the weights stored on the mat, and there is no evidence that the exercise room was overcrowded. For the reasons explained below, HAC's Motion for Summary Judgment is DENIED,

         II. FACTS

         HAC is a private fitness club. Duran, who is a member of HAC, has been taking Zumba and Body Pump classes there since 2007.[1] For approximately six years prior to her injury, the Zumba and Body Pump classes were held in the same exercise room in which she fell.[2] On the day Duran fell, she estimated there were fifty people in the Zumba class.[3] She had her "usual" spot on the far side of the room, but had to shift over toward the "dangerous mat" as more people entered the room.[4]

         Musulain Toomer, the Zumba instructor teaching when Duran fell, testified that Zumba is a fast-paced, high-intensity workout to music that requires participants to focus on the instructor, [5] and the instructor often changes locations during class.[6]Toomer also testified she never received any training from HAC regarding the amount of space each participant requires to safely participate in a Zumba class.[7]

         Susan Storm, the Group Fitness Director at HAC, testified as a corporate designee on behalf of HAC regarding its rules and guidelines for group classes from 2007 through the present. She confirmed that Zumba is fast-paced and it is important that Zumba participants focus on the instructor.[8] Storm also confirmed that, at the time Duran fell, there were weights on a rubber mat in the corner of the exercise room.[9] Storm testified that there were no specific rules or guidelines that applied to the Zumba class.[10] Although HAC was aware (based on a conversation with the fire marshal) that the capacity for the Zumba class was 42 (based on the need to have 50 square feet per person), [11] there were no policies or procedures in place at HAC to make sure the class was not over capacity.[12] Storm also testified she was unaware of any national or industry standards applicable to the exercise room where the Zumba class was held.[13]

         According to HAC member Liliana Garland, the mat was "just in the wrong spot." "It was an uneven floor in a place where there's a lot of movement."[14]Duran's expert on fitness center safety, Dave Parise, CPT, FPTA, opined that a mat with an unbeveled edge located on an exercise room floor during a Zumba class is unsafe.[15] According to Parise, the floor should be free and clear of potential tripping hazards which participants would not expect to encounter, especially when there is side-to-side movement and participants need to focus on the instructor.[16] In Parise's expert opinion, the Zumba class was overcrowded at the time Duran fell, and overcrowding caused participants to shift their positions, placing Duran dangerously close to the dangerous mat.[17]


         Summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.[18] The moving party initially bears the burden of establishing the non-existence of material issues of fact.[19] The Court must view the record in the light most favorable to the non-moving party.[20] Summary judgment may not be granted when "it seems desirable to inquire more thoroughly into the facts in order to clarify the application of law to the circumstances."[21] Negligence actions are not ordinarily disposed of on a motion for summary judgment.[22] Unresolved issues of fact as to the defendant's negligence, proximate cause, and the parties' respective degrees of negligence usually present questions of fact for the jury, however, in rare cases summary judgment is appropriate.[23]


         Under Delaware law, to prevail on a negligence claim, a plaintiff must prove: (1) that the defendant owed plaintiff a duty and (2) the breach of that duty proximately caused plaintiffs injury.[24] When the parties are a landowner and a business invitee, the landowner has a duty to employ reasonable measures to warn to protect a business invitee of a condition that poses unreasonable risk of harm if the landowner knows or should know of such condition.[25] However, there is no duty to warn of, or protect business invitees from, an open and obvious danger.[26] An "open and obvious danger" is one that "creates a risk of harm that is visible... is a well-known danger, or what is discernible by [casual] those of ordinary intelligence."[27] It is a danger "so apparent that the invitee can reasonably be expected to notice it and protect against it because the condition itself constitutes adequate warning."[28] Generally, whether a dangerous condition exists and whether the danger was apparent to the plaintiff are questions for the jury.[29] But in "very clear cases" this is not so.[30]

         The question here is whether this is one of those "very clear cases." HAC argues it is, and relies on Jones v. Clyde Spinelli, LLC.[31] The plaintiff in Jones was injured when she reached out to try and stop her companion from falling over a space heater located on the floor in the middle of an office. The space heater was not partially hidden or difficult to see. The plaintiff and her companion admitted they saw the space heater on the floor and had successfully maneuvered around it for several minutes before the incident. The Court in Jones held that the space heater was an open and obvious danger and, therefore, the defendant had no duty to warn the plaintiff about it.[32]

         HAC also relies on Clifton v. Camden-Wyoming Little League, Inc.[33] In Clifton, the plaintiff fell after stepping into a "pothole" at the little league fields. Plaintiff described the pothole as a "depression of a dirt hole in the ground in an area that was in the middle of an asphalt or concrete paved area." The incident occurred on a clear, sunny day and plaintiff was looking in front of himself when he fell. The Court in Clifton held that the pothole (a dirt and gravel filled area two feet in circumference that is a "good size") did not pose an unreasonable and foreseeable risk of harm to any member of the public and its existence was not evidence of a defect.[34] The Court in Clifton went on to say that even if the pothole did pose a danger, the condition was obvious to a reasonably prudent person.[35]

         Duran submits that there is a key difference between Jones and Clifton and her case: the existence of a distraction.[36] "An exception to the open and obvious doctrine applies when there are attendant circumstances surrounding the event that would distract the [business invitee] causing a reduction in the degree of care an ordinary person would exercise at the time."[37]

         The facts in the instant case are akin to those in Sweiger v. Delaware Park, L.L.C.[38] and Taney v. Independent Sch. Dist. No. 624.[39] In Sweiger, the plaintiff suffered injuries when she walked into an unmarked glass window located in a "dimly lit alcove" while entering "a more brightly lit casino floor."[40] The plaintiff argued that the lights and distractions from the casino caused her to walk into the unmarked glass and fall to the floor.[41] Recognizing that distractions can be an exception to the "open and obvious" rule, the Court denied summary judgment because "distractions from the casino...make[] the question of whether a warning was warranted one for the jury."[42]

         In Taney, the plaintiff fell over a nine-inch drop-off at the threshold of a door. The plaintiff testified that when she opened the door and stepped outside, the lights and people in the hallway across the courtyard distracted her.[43] She never noticed the nine-inch drop-off and broke her hip as a result of her fall.[44] The Court in Taney held "where there is some distraction or other reason which will excuse the failure to see that which is in plain sight, it can be said that a person has exercised that degree of care required of an ordinarily prudent person."[45]

         Here, Duran was focused on the Zumba instructor[46] and moving constantly -in part because of the Zumba dance moves, and in part because as more people entered the room, she and others had to shift toward the mat to make room for the newcomers. Unlike the plaintiff in Jones, who was stationary in an office for many minutes and had previously maneuvered around the space heater in the middle of an open floor, and unlike the plaintiff in Clifton, who was outside on a clear day, walking forward and looking ahead, Duran was moving constantly with her attention focused on her instructor. She was dancing, moving side-to-side, and changing directions in a room with 50 people. The crowded exercise room and the ...

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