Wade Clark Mulcahy LLP

<p style="text-align: justify;">In <em><a href="https://www.wcmlaw.com/wp-content/uploads/2021/05/OBrien-v.-Asphalt-Green-Inc..pdf">O'Brien v. Asphalt Green, Inc.</a>,</em> the plaintiff allegedly was injured when she slipped and fell on a wet condition on the pool deck at an indoor swimming facility, which was operated by the defendant, Asphalt Green, Inc. The defendant moved for summary judgment dismissing the complaint, contending that the plaintiff assumed the risk, and 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. The Supreme Court denied the defendant's motion, and the defendant appeals.</p>
<p style="text-align: justify;">The Appellate Division, Second Department, upheld the lower Court’s decision holding defendant cannot obtain summary judgment by relying on the cases in which courts have dismissed personal injury claims arising out of slipping on water around pools based on the reasoning that such water was necessarily incidental to the use of the area. Here, the slippery condition that allegedly caused the plaintiff's fall resulted from brown water that dripped from what the plaintiff described as an overhead pipe, rather than from water splashed from the pool. The defendant failed to establish 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. Further, the defendant failed to make a prima facie showing of entitlement to judgment as a matter of law based upon the doctrine of primary assumption of risk. Under the doctrine, participants are not deemed to have assumed risks that are concealed or unreasonably increased over and above the usual dangers that are inherent in the sport. 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 nor does the doctrine exculpate a landowner from liability for ordinary negligence in maintaining a premises.</p>
Thanks to Paul Vitale for his contribution to this post.  Please email<a href="mailto:gcoats@wcmlaw.com"> Georgia Coats</a> with any questions.