Plaintiff Swimming Official Did Not "Assume the Risk" of Injury Due to Water Leaking From Negligently Maintained Pipe Onto Pool Deck

In O'Brien v. Asphalt Green, Inc. (Index No. 12847/14, decided on April 28, 2021), a denial of a defendant pool operator's motion for summary judgment was affirmed by the Appellate Division, Second Department, for reasons including that the plaintiff did not "assume the risk" of injury when slipping and falling on a wet pool deck due to water leaking from a defective pipe.  Particularly, the case arose when the plaintiff, who was a swimming official, allegedly was injured when she slipped and fell on a wet condition on a pool deck at an indoor swimming facility located in Manhattan, and which was operated by the defendant Asphalt Green, Inc.  The plaintiff thereafter filed a lawsuit against the pool operator, but before trial the defendant moved for summary judgment (which sought to dismiss the plaintiff's case) contending, among other things, that it cannot be held liable for the plaintiff's accident since the wet condition was necessarily incidental to the use of an indoor pool, and that no triable issues of fact exist for trial.  The Queens County Supreme Court denied the motion, and the defendant appealed.

On appeal, the Appellate Division affirmed the lower court's decision, holding, among other things, the following: "The defendant failed to establish, prima facie, that water accumulation on an indoor pool deck from condensation that had formed and dripped from overhead pipes or ductwork was necessarily incidental to the use of an indoor swimming facility...Further, the defendant failed to make a prima facie showing of entitlement to judgment as a matter of law based upon the doctrine of assumption of risk.  Under the doctrine of primary assumption of risk, a voluntary participant in a sporting or recreational activity 'consents to those commonly appreciated risks [that] are inherent in an arise out of the nature of the sport generally and flow from such participation'...Here, the hazardous condition of an indoor pool deck wet from condensation that had formed and dripped was not open and obvious and created a risk beyond that inherent in the sport of swimming in an indoor swimming facility...Further, 'the doctrine of assumption of risk does not exculpate a landowner from liability for ordinary negligence in maintaining a premises'...."

Salvatore R. Marino, Esq.

Plaintiff Customer's Fall/Injury Case Dismissed as "Seconds" Before Incident He Stepped Onto Allegedly Defective Area Without Issue

In Vaughan v. Triumphant Church of Jesus Christ, et al (Index No. 501243/15, decided on April 28, 2021), a plaintiff's fall/injury case was dismissed as the Appellate Division, Second Department held, among other things, that a defendant property owner did not have sufficient notice of the alleged defect in which plaintiff claims caused his fall and subsequent injuries.  The case arose when the plaintiff, while walking inside a deli (which was operated by United Express Deli, and which leased the premises from the property owner Triumphant Church of Jesus Christ) where he was a customer, sustained personal injuries when he fell through an open trapdoor in the premises ground.  The plaintiff thereafter commenced a lawsuit against entities including the owner of the premises, and the defendant owner eventually moved to dismiss the case (by way of a pre-trial motion for summary judgment).  The Supreme Court, Kings County, denied the motion, thereby leading the defendant property owner to appeal.

On appeal, however, the Appellate Division reversed the lower court's decision, thereby dismissing the plaintiff's case, holding, among other things, the following: "...the owner established, prima facie, that it did not create the allegedly dangerous condition or have actual or constructive notice of its existence...At his deposition, the plaintiff testified that he walked over the trapdoor, and then 'seconds' later when he stepped back, he fell through a hole caused by the open trapdoor.  Accordingly, even though the owner did not present evidence of the last time it inspected the trapdoor, the plaintiff's testimony establishes lack of constructive notice as a matter of law...."

Salvatore R Marino, Esq.