Ellen Rogers claimed that on November 4, 2014 that Herrill Lanes, which operated a bowling alley of the same name, negligently allowed a bowling ball bag — belonging to and set down by fellow patron and defendant Everett Freed — to remain on the concourse.
Rogers tripped on the bag en route to the restroom, and as a result, she claimed to have fractured her clavicle, pelvis and multiple ribs.
At her deposition, Rogers acknowledged that Freed placed the bag on the concourse and that she had no idea how long the bag had sat on the floor. Notably, she agreed that an incident report narrative, prepared just after the fall, was accurate; the document stated that the plaintiff tripped over the bag and ball. Rogers also admitted that she was looking up while she was walking and had no trouble seeing where she was going. Meanwhile, Herrill’s general manager — who walked the alley floor 20 to 40 times per day — was in the area just 10 minutes prior to the plaintiff’s fall and saw no bag on the concourse.
HRRV moved for summary judgment on Herrill’s behalf, on the grounds that it did not breach any duty owed to the plaintiff; the record confirmed that Herrill did not cause or contribute to the plaintiff’s fall or have actual or constructive notice of the condition that did. In fact, there was no record of similar prior incidents, no reason to supplement Herrill’s already-sufficient maintenance procedures and no indication that Herrill staff knew of the bag until after the plaintiff fell.
In a fact intensive decision, Justice Karen Murphy, sitting in Supreme Court, Nassau County, granted Herrill summary judgment on all claims. Because written discovery and depositions revealed no remaining material issues of fact, the case was ripe for judgment on the merits, and the court found that Herrill did not cause, create or have notice of the condition that caused the plaintiff’s injuries. The testimony from Herrill’s general manager was particularly instrumental in helping Herrill establish that it did not have notice, meeting its burden on summary judgment. Interestingly — and despite the plaintiff’s acknowledgment that she tripped over a bowling ball bag — the court further found certain ambiguities in the plaintiff’s testimony, and concluded that the plaintiff, in sum, did not actually know what caused her to fall. As a result, the court dismissed all of the plaintiff’s claims.
Rogers v. Herrill Bowling Corp; Supreme Court, Nassau County; Index No. 604589/2015; October 23, 2017. HRRV’s (www.hrrvlaw.com) Steven H. Rosenfeld and Andrew J. Curtin represented Herrill Bowling Corp.
