Was Club Liable for Injury Caused by Puddle in Locker Room?
Jason Briggs brought a premises liability action seeking to recover for personal injuries he sustained when he was allegedly caused to slip and fall in the shower locker room at the workout at a Planet Fitness gym. Briggs contended he finished his workout and went into the locker room to shower as he normally did. He undressed and prepared to take a shower in the middle stall. He was barefoot. He testified he walked into the shower area and was attempting to go into the middle (third) shower. Briggs claimed he slipped and fell in the area just before he got into the shower stall. He testified that, after he fell, he took three photographs of a puddle that was about one foot by two feet and approximately three to four feet from the shower shall. He believed the accident occurred just before 9:00 p.m.
Briggs testified that he did not see the puddle before he fell and, when asked if he stepped in the puddle, he responded “1 would assume so.” When further questioned if he did not know that he stepped into the puddle, he responded “I don’t know because I didn’t see the puddle, my eyes were looking where 1 was going.” Briggs testified that the surrounding ground near the puddle was mostly wet all over. After his fall, Briggs got dressed and went to the front counter to advise staff of his injury.
Planet Fitness’ shift supervisor on duty that night was John Taylor. The accident was very salient to Taylor because he was in the process of being promoted, had classes that night after his shift at 9:30 p.m and remembered the accident very well because “not a lot of big things happen there.” He testified to Planet Fitness’ policy requiring a walkthrough to clean and to inspect the premises every 20 to 30 minutes. Rounds were generally required at 8:30 p.m. 9:00 p.m. and 9:30 p.m. Taylor recalled he did the 9:00 p.m. round because he was leaving at 9:30 p.m. and he was responsible for the round thirty minutes prior to his shift ending. He said rounds took about 10 minutes and he had a habit of starting his walkthrough three minutes before the time, which in this case would have been 8:57 p.m. He remembered performing the round and seeing Briggs duffel bag on the floor and his locker open. He normally would have taken the duffel bag to the front desk based on Planet Fitness’ policy on loose objects in the locker room, but he did not do that when there was a person showering because he assumed that it was their duffel bag.
Taylor remembered dry mopping the shower area. He observed Briggs “getting into the shower” in the third stall. He recalled that the shower was on, the curtain was open, and Briggs was de-robed and doing something on his phone, possibly texting. He specifically knew who Briggs was because they had talked about sports and the fact that Briggs had a “Yankees” tattoo on his shoulder but wore Boston Red Sox t-shirts, both were New England Patriot fans and they talked sports. However, he did not speak to Briggs at the showers that night. Taylor returned to the front desk at approximately 9:07 p.m. — 9:08 p.m. when he signed the maintenance log.
Taylor testified that at approximately 9:15 p.m. Briggs came out and reported the accident. He remembered the time because he had to go to class at 9:30 p.m. and remembered thinking that this would not take less than 15 minutes, implying he would be late. Taylor went in and only saw water in front of the third shower stall that was consistent with a person coming out of the shower and drying off, not necessary a puddle. The other four shower stalls and areas were dry. He took photographs and attached the pictures to the incident report. Overall, Taylor did not believe that Briggs fell going into the shower but either coming out of the shower when wet or was injured somewhere else. He based his opinion on the fact that Briggs told other employees different stories, his observations of Briggs about to step into the shower and the timeframe of his walkthrough, seeing Briggs about to step into the shower and Briggs coming out.
Planet Fitness’ general manager, Justin Milian, worked that day but was not at the facility at the time of the accident. He testified that the walkthroughs were generally done every 30 minutes, but usually they would send someone in there every 10 to 15 minutes to check. On the night of the accident, Milian testified both the 8:30 p.m. and 9:00 p.m. walkthroughs and forms were completed. He remembered receiving a call from Taylor about Briggs’s fall at 9:00 p.m.
Planet Fitness witnesses testified there was a slip and fall caution sign in the shower area. There was photographic evidence of the sign. Briggs testified he had seen that sign in the shower area, but he did not remember if he saw it on the date of the accident or some other time. After Briggs went to the hospital, Planet Fitness’ recovered the duffel bag that Taylor saw during his 9:00 p.m. round in the locker room. That duffel bag was Briggs’s bag.
Planet Fitness moved for summary judgment on several grounds, including that the gym complied with building or maintenance codes and the tiles had the proper friction coefficient, to which Planet Fitness contended Briggs’s expert disclosure and report failed to competently rebut. Planet Fitness indicated that Briggs’s bill of particulars did not allege Planet Fitness created the alleged condition or that Planet Fitness had actual notice, and further that the club did not have constructive notice of a dangerous condition considering that Planet Fitness’ employees did a walkthrough and round “minutes” from when Briggs fell. Planet Fitness also highlighted that there were wet and slip/fall warnings in the locker room, particularly the shower area, which Briggs did not dispute. Planet Fitness further argued the gym was not obliged to place down mats. In fact, when experimenting in the past, they found that mats actually made the surface more slippery.
Briggs opposed the application but also cross-moved to strike Planet Fitness’ answer on spoliation. The claim of spoliation argued that Planet Fitness’ improperly deleted the surveillance video of the lobby, as well as the maintenance check sheets, when litigation was reasonably foreseeable. Briggs contended that the material was a fact that would prove or disprove whether Planet Fitness’ employees performed the 9:00 p.m. round. and whether the accident occurred before or after the 9:00 p.m. round. Briggs also contended that Planet Fitness did not test or have evidence of the friction coefficient. nor did the gym address the improper locker room/shower floor slope issue raised by Briggs’s expert. Further, Briggs alleged that Planet Fitness failed to put down mats to create a slip-resistance surface. Briggs’s expert provided examples of what he alleged Planet Fitness should have done.
Planet Fitness’ submitted a reply and opposition to the cross-motion, arguing that Briggs’s expert never made a site visit and used an improper building code to conjure a slope issue on the floor. Planet Fitness’ rebutted the spoliation argument and asserted that, notwithstanding the 9:00 p.m. walkthrough, it was uncontroverted that Planet Fitness’ employees performed the walkthrough round at 8:30 p.m. which was approximately 30 minutes before Briggs’ accident, according to Briggs who testified he fell a little before 9:00 p.m. Therefore, Planet Fitness contended that 30 minutes was also insufficient for the club to have constructive notice. Briggs’ submitted a reply in further support, largely furthering their argument on spoliation.
To establish a prima facie entitlement to judgment as a matter of law, a moving party must present proof in admissible form to demonstrate the absence of any triable issues of fact as to each and every allegation in the complaint and bill of particulars. And the movant must come forward with competent proof refuting the allegations of the complaint as amplified by the bill of particulars.
In a premises liability matter, to establish a prima facie entitlement to summary judgment, Fitness was required to show that its property was maintained in a reasonably safe condition and that it neither created nor had actual or constructive notice of the allegedly dangerous condition. To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit the owner’s employees to discover and remedy the condition.
A defendant may demonstrate a lack of constructive notice by offering evidence as to when the area in question was last cleaned or inspected relative to the time when the accident occurred. Generally, 20 to 40 minutes has been an insufficient amount of time to demonstrate constructive notice in similar matters.
Even assuming that water was present on the shower room floor, the mere fact that a floor or walkway becomes slippery when wet does not establish a dangerous condition. A wet floor, especially in a bathroom where one can expect some water to make its way out of the shower to the floor, is not enough, standing alone, to establish negligence. And the presence of a normal amount of water would not establish a want of reasonable care. Therefore, absent competent evidence of a defect in the surface or some deviation from relevant industry standards, the mere fact that Briggs fell on a floor that was inherently smooth, and thus slippery, would impose no liability.
The Court found that Planet Fitness met the moving burden by and through the deposition testimony of the parties, particularly Briggs and Taylor, that constructive notice was not met. But more important. Planet Fitness’ also established that there was no dangerous or defective condition on the ground. The mere fact the ground was “wet and slick” did not give rise to a dangerous or defective condition. In addition, Briggs argued that the Planet Fitness should have used mats and that the Planet Fitness did use mats in one area but not in the area where the Briggs fell. However, the argument about mats was speculative as a method of protecting Briggs from falling. That was rebutted by Planet Fitness, which also demonstrated by and through their expert that the tile used on the flooring had a coefficient of friction when wet that was higher than what the relevant standards required. As such, the Court was satisfied both that Planet Fitness had demonstrated there was no dangerous or defective condition and that the gym did not have constructive notice.
Once Planet Fitness made such a showing, the burden shifted to Briggs to produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact. Suspicions, expressions of hope or unsubstantiated allegations or assertqions are insufficient. In deciding a motion for summary judgment. the trial court must view all evidence in the light most favorable to the party against whom such judgment is sought and, where there is any doubt as to the existence of a triable issue of fact, it should deny the motion since the goal is issue finding rather than issue determination. And courts are to view the evidence in light most favorable to the nonmoving party, affording that party the benefit of all reasonable inferences, and to ascertain whether a material, triable issue of fact exists.
The Court found that Briggs failed to raise a question of fact or credibility. First, the entire spoliation argument was a red herring. It was not an argument developed prior to the close of disclosure and appeared made to attempt to escape judgment. Second, Briggs’s cross-motion and opposition neglected to argue as to the dangerous nature—or lack thereof—of the wet condition on the floor. Briggs’s own deposition testimony indicated that he was unsure that he stepped in the puddle that caused him to fall, as he “would assume” that he did but he did not know if he did: that was, of course. manipulated in the affidavit in opposition that he did slip in the puddle. But nowhere in Briggs’s cross-motion or opposition did he adequately establish that the floor was a dangerous condition more than a condition that was slippery when wet. His deposition testimony even was that the ground was generally “mostly all wet,” which further underscored that he was indeed in a bathroom shower where the floor gets wet. Without anything more, that was is insufficient to impose liability.
Moreover, Briggs was without competent evidence of the alleged defect or a deviation of the relevant industry standards to establish anything more than the bathroom floor was slippery when wet. Briggs’s expert did not test or have any rebuttal to the coefficient of friction other than offering blanket statements that the tile was not tested—which it was. Briggs’s expert also opined that there was a defective slope of the bathroom floor, which he conjured from looking at three grainy cell phone photographs of the floor, as he did not make a site visit. The alleged deviation was 2%– but it was impossible to know how he derived this percentage from looking at the same photographs the Court did. Moreover, as Planet Fitness’ indicated in their reply papers. Briggs’s expert cited to the wrong section of code that was inapplicable and the Court agreed. Briggs’s expert response, report, and affidavit in opposition was not competent.
Furthermore, as alleged in Planet Fitness’ reply, even if Planet Fitness conceded to Briggs s timeframe that he slipped and fell before the 9:00 p.m. walkthrough. according to Planet Fitness’ employees that would mean the last walkthrough ended around 8:30 p.m. That was uncontroverted. Viewing the facts in a light most favorable to Briggs, affording him the benefit of all reasonable inferences, the Court could not conclude that 30-45 minutes or less was a sufficient time to demonstrate constructive notice to Planet Fitness.
In searching the record. the Court found no grounds to impose liability on Planet Fitness. While the Court acknowledged the argument by Briggs regarding spoliation, that would not rise to the level of striking the answer. Nor would the evidence alleged to have been provided been dispositive. This was a slip and fall, the ultimate issue was first whether the condition itself was dangerous. defective, or otherwise hazardous. Briggs utterly failed to demonstrate water on the bathroom floor by a shower stall was a dangerous or defective condition, or that Planet Fitness had constructive notice of the condition. The Court never reached spoliation because it could not find the predicate dangerous condition.