G&S WINS APPEAL DISMISSING COMPLAINT OF HEALTH CLUB MEMBER WHO FRACTURED HIP IN FALL – SECOND DEPARTMENT, APPELLATE DIVISION
Our client health club was sued when a member fractured her hip falling in a whirlpool room allegedly due to an excessively wet floor Plaintiff underwent two surgeries as a result. We moved for summary judgment on the theory the water condition was incidental to the whirlpool. We also argued that plaintiff’s claim the water was excessive should have been disregarded by the court since she did not observe the condition before she fell. We similarly argued that the affidavits of plaintiff’s witnesses should also have been disregarded since they did not witness the condition contemporaneously with the accident. After the court denied our motion, G&S appealed to the Second Department which reversed, agreeing that the water which caused plaintiff’s accident was incidental to the use of the whirlpool room and therefore not actionable. The Court also agreed with the defendant that the affidavits of the plaintiffs’ witnesses should have been disregarded.