Thursday, February 15, 2007

Q. Does defendant get summary judgment on these facts?

The infant plaintiff allegedly slipped and fell on a puddle of apple juice on the gymnasium floor of the defendant's premises and injured her ankle. The infant plaintiff testified at a deposition as to the size of the puddle, which was characterized by her attorney as being about the size of two legal pads. There was an apple juice box one or two feet away from the puddle, and the liquid on the floor was identical in color to the liquid on the box. She saw the box about two hours before the accident, but she only saw the liquid seconds before the accident.

The infant plaintiff was a member of the defendant's summer camp program, which provided breakfast, lunch, and snack. The infant plaintiff alleged that campers ate breakfast and snack in the gymnasium, and that the defendant was not in the habit of cleaning the gym after each meal.

On the day of the accident, the campers ate snacks on the floor, as was their custom. They played a game of tag. The accident occurred about two hours into the game of tag. Before she fell and injured herself, the infant plaintiff fell a couple of times, without sustaining an injury, over liquid on another part of the gymnasium floor. The infant plaintiff stated that defendant did not clean the gymnasium until the end of the day, and that there was "a big mess" in the gymnasium.

One of the camp supervisors stated that assistant counselors, who were teenagers, made sure that the gymnasium was clean after each meal. The janitors cleaned the gymnasium at the end of the day. The supervisor also stated that children were not allowed to play tag while they waited for their parents to arrive, and that if children were playing tag, they would have been stopped.

A. No, according to the Second Department in Rivera v. YMCA of Greater New York, decided on February 13, 2007. "A triable issue of fact exists as to when the defendant last cleaned and inspected the premises and whether it had constructive notice of the alleged hazardous condition."