primary assumption of the risk does not apply to medical negligence claim
How later courts described this case
- primary assumption of the risk does not apply to medical negligence claim
Written by the judges who cited it.
The opinion
Farmer, J.,
dissenting.
Although I concur that there may be more than one proximate cause in the incident sub judice, I respectfully dissent from the majority’s view that this matter should be remanded for trial on the issue of the use of the treadmill. I would find that genuine issues of material fact exist only on the issue of the placement of the treadmills as is stated in Dr. Herbert’s opinion, quoted above.
I believe the majority treads on thin ice when it seeks to superimpose upon a business a higher standard of care toward invitees because it is allied with a medical provider. To assume that any health club should have to go so far as to warn treadmill users that closing their eyes might make them lose their balance is to go one step beyond the pale. Medical facilities can be charged with the restricted standard of care toward business invitees without any heightened responsibility when the facility conducts an ordinary nonmedical function,
e.g.,
ATM machine or a McDonald’s restaurant on premises, or cooperation with a YMCA facility.
I would reverse on the sole issue of proximate cause and placement of the treadmill.