August 17, 2022
Dolden Wallace Folick Successfully Defends a Personal Trainer – August 17, 2022
By Dolden Wallace Folick Toronto
Our Toronto office was recently successful at a trial of a sports and recreation negligence claim. In the case (Moskowitz v. Detox, 2022 ONSC 4063), they defended a personal trainer, Venessa Coda.
The plaintiff, Dana Moskowitz, alleged that she was injured while performing a slam ball exercise in a fitness class. The exercise is performed by slamming a medicine ball to the ground. In carrying out the exercise, after Ms. Moskowitz slammed the ball to the floor, it bounced back and struck her in the face. Ms. Moskowitz alleged that Ms. Coda was negligent in two ways (1) that she provided deficient instructions and (2) that she chose an improper ball for the exercise. Ms. Moskowitz’s position was that no instructions were given and that the exercise should only be performed with a non-bouncing, sand-filled ball.
Ms. Coda stated that she did give instructions to the class. She told the class to hold the ball above their heads, slam the ball to the floor and then catch the ball. As well, Ms. Coda provided a physical demonstration. Additionally, the choice of ball was deliberate – using an air-filled ball with some bounce is more of a cardiovascular exercise, as the repetitions can be performed faster.
In many ways, this case came down to witnesses’ credibility. Moreover, it demonstrates the importance of counsel’s role in proper witness preparation.
Madam Justice Brown found Ms. Moskowitz’s evidence to be questionable. Justice Brown noted that under cross-examination Ms. Moskowitz was impeached numerous times, changed her testimony, and backed away from her previous categorical answers. Moreover, the evidence of lay witnesses called by Ms. Moskowitz was not accepted. One witness, Carrie Mandel, was described as “defensive, argumentative and unwilling to accept or concede even simple facts put to her.”
Conversely, Ms. Coda was “reliable and consistent” and “did not attempt to change evidence to fit her version of the facts.” Nathane Jackson, an expert called by the defence was described as “straightforward, forthright, independent… credible throughout in his testimony.”
Justice Brown dismissed the case. In doing so, Her Honour did not find the slam ball exercise to be inherently dangerous nor complicated. Her Honour concluded that there was an industry standard of using the air-filled balls while performing the exercise and that Ms. Coda gave proper instructions to the class. Ms. Moskowitz was found to be the “the author of her own misfortune.”
This is an important decision for the sports and recreation industry. A gym is not an insurer for anyone who attends to work out or to use its facilities. Patrons are required to pay attention to trainers and their surroundings, and follow instructions provided.
One of the unique challenges in this case, was that the trial proceeded virtually, particularly when witnesses were asked to demonstrate the exercise. This resulted in witnesses being asked to slam balls in hallways while counsel took videos on their cell phones. Clips of these videos were entered as exhibits and formed part of the evidentiary record. In the future, we can expect that virtual and/or hybrid trials will be the norm and counsel will have to come up with unique solutions to fit the circumstances, particularly when witness credibility is a key factor in the case at hand.
For those interested, a full copy of Justice Brown’s decision in this case can be accessed and read by clicking here: Moskowitz v. Detox, 2022 ONSC 4063
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