Was Owner Liable for Injury Near Ball Return?

Every case that arises from a recreation/sports-related injury must address several threshold questions. First, was the premises maintained in a reasonably safe condition? Second, did the owner have actual or constructive notice of an unsafe condition? Lastly, did the unsafe condition cause or contribute to the injury? A recent case, involving a hand injury at a bowling alley, addressed all 3 questions.

Jaime Muscato sued Spare Time Entertainment alleging a slip-and-fall at a bowling alley located on Route 9 in Clifton Park, New York. And claimed negligence in maintaining the premises, in that the floor near the ball return was excessively slippery, causing her to fall and sustain injury to her hand. Spare Time moved for summary judgment.

In a slip-and-fall case, a defendant moving for summary judgment bears the initial burden of showing that it maintained the premises in a reasonably safe manner and neither created the dangerous condition nor had actual or constructive notice of the condition. If the requisite showing is made, the burden of proof then shifts to plaintiff to show the presence of questions of fact requiring trial.

Spare Time offered the deposition testimony and affidavit of Regional Manager James Tenda to establish that they neither created nor had notice of the slippery condition complained of by Muscato. Tenda described the methods used to maintain the floors in the bowling alleys and pointed out that they had no prior complaints about slippery floors.

However, Tenda’s testimony and affidavit dealt only with their general cleaning and inspection practices. Tenda did not speak to what was or was not done on the date of the claim. Nor could he, since he had not been at the location since the month prior to the incident. Testimony as to general cleaning and inspection practices was not sufficient to make a prima facie showing that Spare Time lacked constructive notice. The photographs annexed for Tenda’s affidavit were not useful, as he asserted no personal knowledge as to when they were taken and his statement that they accurately depicted the floor area in on the date of the incident was also made without personal knowledge.

Spare Time also argued that Muscato was unable to identify the cause of her fall. Pointing to her deposition testimony that when she noticed that the floor was slippery, she did not look at the floor to see what was making it slippery. She also pointed to statements in the non-parties’ depositions who did not specifically know what caused Muscato to fall.

All of the witnesses, however, testified that the floor in the ball return area was unusually or excessively slippery. In addition, Muscato testified that she thought it could be the same substance used to keep the bowling lanes slippery. Non-party witness Jeffrey Brooks stated he thought there may have been additional wax on the floor. In addition, Brooks submitted an affidavit in which he stated that the floor was coated with what appeared to be the same oil used on the bowling lanes.

While a plaintiff’s complete inability to identify the cause of their fall can be fatal to their claim, a plaintiff can offer circumstantial evidence from which negligence can reasonably be inferred without specifically identifying a cause. Muscato offered the theory that oil used on the bowling lanes was the source of the slipperiness that caused her fall.

Tenda testified to that process, which notably included moving the oiling machine from lane to lane in the area adjacent to the ball returns. Viewing the record here in a light most favorable to Muscato as the non-moving party, the case fell more in line with the position that, while she and the non-party witnesses did not specify the substance that caused the slippery condition, Muscato’s claim was deductive, rather than speculative.

Spare Time next asserted that Muscato voluntarily assumed the risk of injury associated with the sport of bowling. Assumption of risk deals with common risks of a particular sport that are known, apparent, or reasonably foreseeable and is generally a question for the fact-finder. Here, Tenda testified that the floor in the area of the ball returns should have no finish on it and should be cleaned only with a dry mop using no cleaning compounds. Muscato did not assume the risk that oil meant for the bowling lanes would be present in the ball return area, which should by Spare Time’s own admission be clean and dry.

Spare Time’s motion for summary judgment was denied.