Fusilli v. Caldor, Inc.
Court: Appellate Division of the Supreme Court of the State of New York; April 23, 1996; New York; State Appellate Court
The Supreme Court of Bronx County, under Justice Bernard Burstein, issued an order on December 7, 1994, affirming the denial of defendants' post-trial motion to dismiss the complaint for failure to establish a prima facie case. The plaintiff sustained a right ankle fracture after slipping while cleaning a wading pool. On June 30, 1991, following the initial use of the pool, the plaintiff attempted to drain it by pressing down on the side, resulting in about one inch of standing water. During her second attempt to clean the pool on July 2, she did not clean the bottom, believing it was not necessary due to the clear water and lack of visible slime. On July 4, while cleaning again, she slipped on the bottom of the pool, which she later discovered was slippery due to algae growth—a fact she was not aware of because it was her first encounter with this type of pool. The pool lacked any warnings about the risks of slipping on the liner, and the plaintiff's expert testified that the liner material was not traction-enhanced. He also indicated that unchlorinated water left in the sun promotes algae growth, increasing slipperiness. The expert asserted that the pool should have included a drainage plug and clear warnings about maintaining clean water and daily emptying. The court found sufficient evidence that the plaintiff was unaware of the specific danger posed by the slippery liner due to algae, which was not obvious or foreseeable. The danger of wet surfaces is generally known, but the particular risks associated with this pool were not. The court allowed the expert's testimony, determining that the knowledge of such dangers was not within the plaintiff's ordinary experience, and the defendants had waived their right to object to this testimony during the trial. The defendants' additional arguments were deemed without merit. The decision was concurred by Justices Rosenberger, Ellerin, and Rubin.