Segal McCambridge New York Shareholder Carla Varriale-Barker (she/her/hers) and Senior Associate Antigone Tzakis were successful in obtaining a summary judgment win for their client in a Supreme Court, Suffolk County water park case.
The Supreme Court, Suffolk County granted summary judgment in a slip and fall accident at the Splish Splash at Adventureland water park. Plaintiff is an adult who stepped into a pool and struck her foot on a suction outlet cover, sustaining a Lisfranc fracture and other injuries. The suction outlet cover that she struck was a federally-mandated device that is required by the Virginia Graeme Baker Pool and Spa Service Act (the “VGBA”). After a child died from an accident whereby she was entrapped under water due to a suction device, Congress enacted the VGBA in response to the accident (and the advocacy of the child’s mother). The VGBA’s purpose was to enhance the safe use of pools, spas and hot tubs by mandating equipment like suction outlet covers to prevent entrapment.
In this case, the water park and its experts established that the suction outlet cover was mandated by, and in compliance with, the VGBA and that there were no defective or dangerous conditions based on any of the theories advanced by plaintiff. Rather, the evidence established that plaintiff entered the pool by walking through an ADA-compliant ramp and stepping onto a peninsula abutting the pool. Plaintiff took two steps then fell forward into the water. She did not observe any foreign substances, material or debris that could have caused her to slip and fall and the pool was clean at all times relevant to the alleged accident. The peninsula was also clean and made of slip-resistant material. After the accident, plaintiff admitted to the aquatics manager that she stepped into the pool, did not use the nearby stairs that were equipped with handrails, and “stepped wrong” into the pool.
The court was not persuaded by plaintiff’s opposition, including the affidavit of a previously-undisclosed expert and belated claims that the peninsula was too narrow. The court noted “...even today the Plaintiff simply states she slipped without any identifiable condition giving rise to even an inference of negligence on the part of the Defendant…” The court determined that plaintiff failed to raise a material question of fact and granted summary judgment, dismissing the negligence action.