The Supreme Court, Suffolk County has granted summary judgment to the defendant in a slip and fall accident at the Splish Splash at Adventureland water park.
The plaintiff is an adult who stepped into a pool and struck her foot on a suction grate, sustaining a Lisfranc fracture and other injuries.
The suction grate 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 grates for suction devices to prevent entrapment.
In this case, the water park and its experts established that Splish Splash provided the VGBA-mandated suction grates and that there were no defective or dangerous conditions based on any of the theories advanced by plaintiff. Rather, the evidence established that the plaintiff entered the pool by walking through an ADA-compliant ramp and stepping onto a peninsula abutting the pool. The plaintiff 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, the plaintiff admitted to the aquatics manager that she stepped into the pool, did not use the nearby stairs, and “stepped wrong” into the pool.
The court was not persuaded by the 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 sipped without any identifiable condition giving rise to even an inference of negligence on the part of the defendant…” The court determined that plaintiff filed to raise a material question of fact and granted summary judgment, dismissing the negligence action.
The defendant was represented by Antigone Tzakis and Carla Varriale-Barker, of Segal McCambridge. Varriale-Barker is the Chairperson of Segal McCambridge’s Sports Recreation & Entertainment Practice Group.
