The plaintiff, an adult male, tried ice skating for the first time on a Spring day at our client’s ice rink. He stepped out on the ice and while still holding on to the boards took a second step and fell backwards onto his posterior breaking his ankle which required surgery. He alleged that his skate slipped because he had stepped onto a wet spot on the ice and also that he was given the wrong size skates.
The claim that wet ice caused someone to fall is a claim we have seen over the years. This time we decided to hire an expert to test the claim. Our expert did coefficient testing on wet ice and dry ice before and after cleaning with a Zamboni and scientifically determined there was no significant difference between the slipperiness of wet and dry ice.
Our expert who also was a bio-mechanical engineer also determined by the plaintiff’s testimony that the cause of the fall was not the ice, but the fact that the plaintiff had taken a step while still holding onto the boards which would have caused his weight to trail behind his skates leading to to his fall on his posterior.
Our expert also noted that when one is stepping as opposed to skating with ice skates the blades are not engaged with the ice in a stable manner and it is extremely difficult to keep one’s balance even for an experienced skater, let alone a first timer. Our expert also observed that plaintiff spent no time attempting to acclimate to the ice, but immediately stepped away from the boards. These factors explained the accident without reference to an dangerous condition.
At plaintiff’s deposition we got him to admit that he never felt any change in the consistency of the ice prior to falling and thus argued his claim that wetness caused his fall was pure speculation. In fact, we asked him if he knew for a fact that wet ice was more slippery than dry ice and he said that he thought so, but did not know it for a fact.
With regard to the claim that he was given the wrong size skates, we argued that he could not say at his deposition whether or not the accident would have occurred with smaller skates and highlighted his testimony that the skates were fine to walk on off the ice.
Despite plaintiff submitting his own expert affidavit to the court which concluded that our client was negligent for allowing the ice to be wet and for providing the wrong size skates, the trial court found plaintiff’s expert’s affidavit to be without foundation and granted our motion for summary judgment dismissing the complaint for his failure to establish any defect which proximately caused the accident. The Appellate Division heard argument and agreed.
A claim of wet ice no longer sets forth a prima facie claim of negligence in New York.