Accident on Lane 47 of Babylon Bowling

This was originally posted on the SGR Blog.

Did Proprietor Create/Allow Dangerous Condition?

Judi Nelson sued to recover damages for injuries she allegedly sustained when she tripped and fell at AMF Babylon Lanes, a bowling alley located at 430 Sunrise Highway, West Babylon, New York. In her bill of particulars, Nelson alleged that she tripped and fell due to a “defective and dangerous condition” at lane number 47.

AMF moved for summary judgment in its favor, arguing that it did not create the alleged dangerous condition, and did not have actual or constructive notice thereof. In support of its argument, AMF submitted copies of the pleadings, transcripts of the parties’ deposition testimony, transcripts of three nonparty witnesses’ deposition testimony, a copy of a “customer incident report,” and a compact disk containing video footage.

Nelson testified that he was participating in a bowling tournament at the AMF Babylon bowling alley. She indicated that she was a “very good tournament bowler” and had participated in tournaments for approximately five years prior to the incident. She stated that bowling tournaments are held at many different bowling alleys and that prior to bowling on a lane, she would often “test” the lane to find out whether her foot was “going to stick or not,” “[b]ecause if you stick, you’re going to fall.” She testified that such testing would help her decide whether or not to wear a “slider sock” while playing on a lane, and explained that a slider sock is a piece of cloth that is affixed to the front portion of a player’s bowling shoe, allowing it to glide on the floor. She stated that she was familiar with AMF Babylon’s lanes from participating in prior tournaments there, and knew that her foot would “stick on them,” which informed her decision to wear a slider sock on the date of her accident.

Nelson testified that she usually bowled tournaments in a six-member group and that one of the group’s members, “Vinny,” was usually tasked with inspecting the “approach” area of the bowling lane, between the chairs and the foul line. She stated that he would inspect it and rub his foot over the area, a practice that she observed in a video recording of the accident and acknowledged that a second, unknown male from her bowling group also inspected the same area prior to her accident.

Regarding the circumstances of her fall, Nelson indicated that she “picked up [her] ball, went to throw it … [and] just went down.” She testified that she did not know what caused her to fall until afterwards, when she observed that a 4 to 6 inch piece of wood was protruding from the floor of the approach to what she believed was lane 46, having been pulled up by her toe sleeve. Asked to explain further, Nelson stated that she assumed there was a splinter in the wood flooring and that as her foot slid into it, her shoe became caught on the splinter, pivoting her forward and exposing the splintered piece of flooring. Upon questioning, Nelson denied seeing the splinter at any time prior to her fall, and acknowledged that three people, including one person who also used a slider sock, bowled successfully on the lane prior to her fall. Asked what became of the large splinter, Nelson indicated that AMF employees took it and “ran with it.”

Anthony Mahoney testified that he was employed by AMF as an operations manager and that his duties included overseeing the day-to-day operations of the AMF Babylon bowling alley. He stated that AMF employed a facilities manager and three mechanics who performed maintenance and made any necessary repairs to the bowling lanes. Questioned as to the inspection practices at the bowling alley, Mahoney indicated that there was a general practice of oiling the lanes, sweeping out the gutters, and using a dust broom on the “approach area and the settee area,” especially before tournaments. He testified that such preparations were supervised by him, but were mainly performed by the bowling alley’s facilities manager and mechanics. Mahoney stated that, after the mechanics completed their tasks, he performed a visual inspection of each lane.

Mahoney testified, on the date of the incident, lanes 33 through 56 were reserved for the tournament, which was to commence at approximately 7:00 p.m. He indicated that while the bowling alley had opened at 11:00 a.m., he arrived at 4:00 p.m. to begin his shift. He stated that preparation of lanes 33 through 56 for the tournament would have commenced at approximately 5:00 p.m., after which he inspected each lane, finding nothing wrong. He further stated that he had not received any complaints of splintered wood at the approach to any of the lanes prior to the accident. He testified that Nelson’s accident occurred in the area of lanes 47 and 48. Nelson handed him an approximately one-inch piece of wood, claiming that it was what caused her fall, prompting him to perform an inspection of the area and stated that “the lane looked fine” to him, but that one of the alley’s mechanics, Eric Falkstrom, also inspected the location. Mahoney indicated that he observed Falkstrom rub the area with a rag.

Nonparty Vincent Lore testified, that after viewing the surveillance video of the accident scene, he saw nonparty Scott Teitler inspect the approach to lane 47 at approximately 7:17 p.m. He stated that he saw himself take a practice throw of his bowling ball on lane 47 at approximately 7:21 p.m., saw Teitler throw a ball down the same lane directly after him, and that neither encountered any issues with the approach. Lore indicated that following Nelson’s fall, he inspected the middle of the approach to lane 47 and observed a one-inch wide, four-to-six-inch long piece of wood flooring was “curled up.” Lore testified that this was the first time he had seen the piece of flooring in that condition and further testified that there was no water, liquid, gum, or any other substance in the area.

Nonparty Eugene DeFazio testified that he is Nelson’s “significant other,” and that he was present at the time of her incident. He stated that he did not observe any splintered wood at the approach to lane 47 prior to Nelson’s fall, nor had he seen splintered flooring at the approach of any bowling lane in his 51 years of experience. Asked to describe the splinter of wood that was exposed after Nelson’s fall, he indicated that it was six inches long and tapered from approximately one-inch wide down to a point. He testified that it was he who filled out the accident report on Nelson’s behalf, because she was unable to write at the time.

Nonparty Scott Teitler testified that he was a member of Nelson’s bowling group on the incident date, he had been a bowler for 42 years, and had been employed by “many” bowling alleys in the past. Despite his years of experience, he had only seen splintered wood on a bowling lane’s approach “[m]aybe once or twice,” and that on those occasions it was impossible to see the splinter until after it had been pulled up by something. Upon being shown video footage of the accident area at 7:17 p.m. and 7:19 p.m., he testified that he saw himself performing a pre-bowling inspection of lanes 47 and 48, and did not find anything out of the ordinary. The video footage advanced to 7:21 p.m. Teitler saw himself throw a ball down lane 47 without incident, immediately prior to Nelson’s fall. Asked if he was “a hundred percent sure that had [he] seen something sticking up from the approach [prior to [her]] fall] that [he] would have told somebody,” he responded “yes.”

The owner or possessor of real property has a duty to maintain the property in a reasonably safe condition so as to prevent the occurrence of foreseeable injuries. In a premises liability case, a defendant real property owner who moves for summary judgment has the burden of making a prima facie showing that it neither affirmatively created the hazardous condition nor had actual or constructive notice of the condition and a reasonable time to correct or warn about its existence.

But a defendant has constructive notice of a hazardous condition on property when the condition is visible and apparent, and has existed for a sufficient length of time to afford the defendant a reasonable opportunity to discover and remedy it. When a defect is latent and would not be discoverable upon a reasonable inspection, constructive notice may not be imputed. The question of whether a reasonable time has elapsed may be decided as a matter of law by the court, based upon the circumstances of the case. And to meet its prima facie burden on the issue of lack of constructive notice, the owner must offer evidence as to when the area around the issue was last cleaned or inspected before the accident.

The Court found that AMF established a prima facie case of entitlement to summary judgment in its favor. AMF demonstrated, prima facie, that its employee, Mahoney, inspected the accident location at some time between 4:00 p.m. and 6:45 p.m. AMF further demonstrated, prima facie, through the deposition testimony of the witnesses, that it did not create a dangerous condition; did not receive any complaints of a dangerous condition; and any dangerous condition was not “visible and apparent.” Specifically, each of the deposed witnesses denied seeing anything unusual at the approach to lane 47 alley prior to Nelson’s fall. In essence, AMF established, prima facie, that the alleged dangerous condition, if any, was a latent defect and not able to be discovered absent extraordinary measures. The burden then shifted to Nelson to raise a triable issue of fact.

But Nelson failed to raise a triable issue. In opposition, she submitted only her attorney’s affirmation who argued that AMF’s evidence was inadmissible; AMF had not proved, as a matter of law, that it did not create or negligently fail to discover the dangerous condition; and triable issues remained as to whether Nelson assumed the risk of the unsafe, hidden, trap of the broken shard in the approach area.

The Court found the arguments regarding the admissibility of the submitted deposition transcripts, the video footage, and the “customer incident report” to be unavailing. Each of the deposition transcripts submitted to the Court was accompanied by a certification page signed by the relevant stenographer–and Nelson did not contest their accuracy. And the video and incident report both were identified and authenticated by witnesses at their depositions.

As to the alleged dangerous condition, Nelson did not adduce any evidence that such condition was detectable prior to her slide sock exposing it by force. And the failure to make a diligent inspection constitutes negligence only if such inspection would have disclosed the defect. Here, not only did the witnesses deny observing any visible defect in the approach to lane 47 prior to Nelson’s fall, multiple people walked and bowled on that surface without sensing cracked or splintered wood.

The motion by AMF for summary judgment dismissing the complaint was granted.

Comments are closed.