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Court Finds Water Unavoidable in Shower (NY)

May 8, 2017

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<span style="font-family: Calibri;"><span style="font-size: medium;">The question of what is open and obvious would seem to be straight forward, but that does not always prevent a plaintiff from testing the waters, so to speak.  In <a href="http://blog.wcmlaw.com/wp-content/uploads/2017/05/Barron.pdf">Barron v Eastern Athletic</a><i>, </i></span><span style="font-size: medium;">the plaintiff slipped when he entered a shower stall at his gym.  Specifically, the plaintiff testified that he fell after he stepped on water in the stall, which he had seen before entering the stall.  </span></span>
<span style="font-family: Calibri; font-size: medium;"> </span><span style="font-family: Calibri;"><span style="font-size: medium;">The lower court granted the gym’s summary judgment motion, and the Second Department affirmed.  The Appellate Division noted that property owners had a duty to maintain their property in a reasonably safe condition “in view of all the circumstances.”  The Court further concluded that the presence of water in a shower stall was not enough to find liability against the gym, especially when water on the stall floor was an obvious and unavoidable result of using the shower.  In other words, “there was no rational process by which a factfinder could base a finding in favor of plaintiff.” (citing <i>Noboa-Jaquez v. Town Sports Int’l, </i></span><span style="font-size: medium;">138 A.D.3d 493 (1</span><sup><span style="font-size: small;">st</span></sup><span style="font-size: medium;"> Dep’t   2016)).</span></span>
<span style="font-family: Calibri; font-size: medium;"> Thanks to Georgia Coats for her contribution.</span>
For more information, contact Denise Fontana Ricci at <a href="mailto:dricci@wcmlaw.com">dricci@wcmlaw.com</a>.
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