Kimberly J. Miller, Individually and as Executrix of the Estate of Thomas Miller
The Young Men's Christian Association of Central Massachusetts et al No. 134853
August 30, 2016
MEMORANDUM OF DECISION AND ORDER
J. CURRAN, Associate Justice.
January 2, 2012, Mr. Thomas Miller, a 62-year-old retiree,
went to his local YMCA to work out. Mr. Miller was a member
of the " Silver Sneakers" program, designed to
promote YMCA membership among older people. He checked in at
the front desk at about 5:55 a.m., and at some point, went to
use the steam room. The front desk employee observed that at
the time he came in, he appeared unwell and "
about 7 a.m., another YMCA member discovered Mr. Miller lying
unconscious on the floor of the steam room, with hot steam
blasting upon his body. An emergency call button outside the
steam room was activated which alerted the front desk staff
person. A call was placed to 911, but in the meantime, two
YMCA employees tried to gain access to the locked steam
control room to shut off the steam vent. They were unable to
do so because the only way to access that room was by a
master access key, which only certain YMCA employees had,
none of whom was immediately available. The YMCA disputes
this, claiming instead that one of its employees did obtain a
key, and was able to unlock the steam control door and shut
off the steam vent. Another employee tried to use a
defibrillator on Mr. Miller, which did not work because of
the moisture on Mr. Miller's body and the unavailability
of extra pads.
Miller was taken by ambulance to the hospital where he was
diagnosed with second-degree burns covering 12-15% of his
body, including his face. He underwent multiple surgeries,
but died about three weeks later. This lawsuit alleges a
violation of the wrongful death statute on behalf of Mr.
Miller's beneficiaries (count I), conscious pain and
suffering (count II), and gross negligence (count III).
Specifically, count I and II allege negligence and count III,
gross negligence. YMCA Memorandum at page 3.
issue of liability, the YMCA states that at the time of this
tragic incident, a " Danger sign was posted outside the
steam room which cautioned people, among other things: "
Do not use alone . . ." There is disputed evidence
regarding access to the control room to enable a staff person
to shut off the steam room valve. The only YMCA employee
authorized to enter the control room was Kenneth McArthur,
who was in his basement office at the time the alarm was
sounded. Although Patrick Carmody had a key to that room, he
was not permitted to use it, while Mr. Miller lay on the
floor with water scalding his limp body. Even the responding
EMTs could not gain access to the steam control room. It was
another five minutes while Mr. McArthur watched efforts by
others to attend to Mr. Miller before he finally shut off the
steam control valve.
YMCA concedes that it never considered placing an emergency
alarm inside the steam room (although there was one
directly outside it), and further, admits that if a person
became incapacitated inside the room, that individual could
not set off the alarm.
Miller's estate seeks to make much of the facts that the
YMCA officials at the facility had: 1.) no steam room safety
policy; 2.) no " walk through locker room logs";
3.) no regular staff inspections of the steam room; 4.) no
risk management classes for its employees; 5.) no discussion
of members' health risks in using the steam room; 6.) no
discussions about " having any doctors or other medical
professionals present or on-call" if an older
member's health became emergent; 7.) no official member
clearance was required of Silver Sneaker members; and 8.) no
written logs of inspections of the steam room. Perhaps more
importantly, the estate claims that when EMT personnel
responded to the scene, they still could not gain access to
the control room to shut off the valve in the steam room
where Mr. Miller's body still lay, with his flesh
burning, unconscious on the floor.
the defendants--the YMCA and its two officers, President
Kathryn Hunter and Vice President Ken Mierzykowski--have
filed motions for summary judgment, contending that no
genuine issue of material fact exists. Additionally, the YMCA
has moved separately for summary judgment because it says
that Mr. Miller signed a waiver that, it contends, absolves
it of any liability.
APPLICABLE LEGAL STANDARD
Court will grant summary judgment only when there are no
genuine issues of material fact. See Mass.R.Civ.P.
56(c). The burden is on the moving party to demonstrate the
absence of a triable issue and that it is entitled to
judgment as a matter of law. Id. ; Madsen v.
Erwin, 395 Mass. 715, 719, 481 N.E.2d 1160 (1985). Where
the burden of proof at trial rests with the non-moving party,
the moving party may satisfy its summary judgment burden by
either presenting " affirmative evidence negating an
essential element" of the non-moving party's case or
" by demonstrating that proof of that element is
unlikely to be forthcoming at trial." Flesner v.
Technical Commc'ns Corp., 410 Mass. 805, 809, 575
N.E.2d 1107 (1991).
Where a moving party properly asserts that there is no
genuine issue of material fact, 'the judge must ask
himself not whether he thinks the evidence unmistakably
favors one side or the other but whether a fair-minded jury
could return a verdict for the plaintiff on the evidence
presented.'" Id., quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505,
91 L.Ed.2d 202 (1986). All of the evidence must be viewed in
the light most favorable to the non-moving party. Foster
v. Group Health, Inc., 444 Mass. 668, 672, 830 N.E.2d