Was Floor Properly Maintained to ASTM Standards?
Ronald R. Benjamin filed a negligence action seeking damages for injuries that he sustained when he slipped and fell while playing racquetball in a facility owned and operated by The Court Jester Athletic Club, Ltd.
The gravamen of Benjamin’s complaint was that the Club was negligent for its failure to properly maintain the racquetball court floor in conformance with the standards of the American Society of Testing and Materials by failing to keep the floor free of substances, by failing to regularly clean the floor, by failing to inspect the floor prior to use and by failing to assure that the floor was not slippery.
Following joinder of issue and discovery, the Club moved for summary judgment dismissing the complaint on the grounds that Benjamin was unable to identify the cause of his fall, lack of actual or constructive notice and assumption of the risk. Supreme Court granted the Club’s motion. Benjamin appealed.
A defendant moving for summary judgment in a slip and fall case must establish that its property had been maintained in a reasonably safe condition and that it neither created nor had actual or constructive notice of the dangerous condition that caused the plaintiff’s fall. A defendant can also demonstrate entitlement to judgment as a matter of law by establishing that the plaintiff cannot identify the cause of his or her fall without engaging in speculation. Even when a plaintiff is unable to identify the cause of a fall with certainty, a case of negligence based wholly on circumstantial evidence may be established if the plaintiff shows facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred. However, the proof must render other causes sufficiently remote such that the jury can base its verdict on logical inferences drawn from the evidence, not merely on speculation. And the doctrine of assumption of risk provides that a voluntary participant in a sporting or recreational activity consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation.
In support of its motion for summary judgment, the Club offered, among other things, Benjamin’s deposition testimony, affidavits of the racquetball players present on the court at the time of his fall, the expert affidavit of William B. Smith — a wood products engineer, professor and director of wood utilization service at the State University of New York, College of Environmental Science and Forestry — and the affidavit of the Club’s owner.
Benjamin testified that he started playing racquetball in 1971 and had played at least weekly since 2014. He further stated that there were no substances on the floor and the floor was not slippery. The other racquetball players averred that they did not observe any slippery, slick, sticky or unsafe conditions on the floor. The Club’s owner attested that it was the facility’s custom and routine to clean the floor every night by sweeping and mopping it with warm water. Additionally, he stated that he had owned the facility since 1995. During that time, there had been no complaints received regarding the condition of the racquetball court floor nor any reports of patrons falling prior to Benjamin’s fall.
Expert Smith opined, within a reasonable degree of scientific certainty, that there were no ASTM standards related to the maintenance of a racquetball court’s surface and, as such, that Benjamin’s claim that the floor was not in conformance with any particular ASTM standard was meritless,. And also opined that the Club’s cleaning procedures and resurfacing agent did not unreasonably increase the risk of slippage.
Based on the cumulative evidence, the Court found that the Club satisfied its prima facie burden regarding the condition of the court, lack of notice, lack of proximate cause and Benjamin’s assumption of the risk on the motion. Thus, it became incumbent on Benjamin to raise a triable issue of fact. But in opposition to the Club’s motion, Benjamin produced no expert testimony and relied heavily on hearsay documents.
However, Benjamin did point to a statement contained in one of his fellow player’s affidavit and alleged, for the first time in opposition to the summary judgment motion, that a build-up of dust caused him to fall. In support of that argument, Benjamin relied on and cited to online articles and blogs. It is well settled that a new or materially different theory of recovery, presented for the first time in opposition to a motion for summary judgment, cannot bar relief which is otherwise appropriate. And the Internet articles were inadmissible hearsay that could not properly be considered. Additionally, Benjamin’s fellow players attested that they did not observe any dust on the court and that Benjamin did not complain of any dust that day.
Considering the evidence presented on the issue and viewed in the light most favorable to Benjamin, the Court found that the theory that his fall was caused by dust was founded upon mere speculation and surmise rather than admissible evidence .
Finally, Benjamin failed to raise an issue in response to the Club’s assumption of the risk defense. The condition of the court was known to Benjamin as he had played on that day for over an hour, nor did he provide proof of any unassumed, concealed or enhanced risks.
Supreme Court properly granted the Club’s motion for summary judgment dismissing the complaint.