Fusilli v. Caldor, Inc.

226 A.D.2d 246, 641 N.Y.S.2d 259, 1996 N.Y. App. Div. LEXIS 3998

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 23, 1996
• Status: Published

Opinions

Order, Supreme Court, Bronx County (Bernard Burstein, J.), entered December 7, 1994, which denied defendants’ post-trial motion to dismiss the complaint for failure to establish a prima facie case at trial, affirmed, without costs.

Plaintiff sustained a fracture of the right ankle when she slipped while attempting to clean a wading pool. She testified that, after the pool was first used on June 30,1991, she tried to empty the water by pressing down on the side wall, as illustrated in the instructions, leaving approximately one inch of standing water. Before its second use on July 2, plaintiff stepped into the pool to clean around the rim. She did not, however, think that it was necessary to clean the bottom because the water was clear, the bottom did not appear discolored, and there was no slime discernable on the towel she had used; She again tried to drain the pool with the same result that an inch of water remained, making the pool too heavy to lift to spill out the rest of the water. While she was cleaning the pool before its third use on July 4, her right foot slipped on the bottom and she fell. Upon attempting to get up, she noticed that the bottom was slippery. She testified that, because this was her first pool, she was not aware how slick the surface of the liner could become because of the growth of algae. It is uncontested that the pool did not carry any warning concerning the danger of falls due to the slippery lining.

Plaintiffs expert witness stated that the material used in the lining is lacking in traction and that, when unchlorinated water is left in the sun, "algae will grow and will make the surface more slippery and dangerous.” Therefore, the pool should have been equipped with a device, such as a plug, to drain it completely. In addition, the product should have carried a warning, such as those carried by other wading pools, that the water should be kept clean and fresh and that the pool should be emptied daily. Defendant’s own witness conceded that leaving water in the pool for just a couple of days could cause the growth of microorganisms.

There was sufficient proof presented at trial that plaintiff had no actual knowledge of the danger of extreme slipperiness presented by the growth of algae, resulting from failure to completely empty and clean the pool after each use, and that such danger was neither open and obvious (cf., Baptiste v Northfield Foundry & Mach. Co., 184 AD2d 841, 843-844) nor remote or unforeseeable. While the slipperiness of wet surfaces may be a matter of general knowledge, the record reflects that the specific danger posed by a slick pool liner, further aggravated by algae formation, was not known to plaintiff. The court properly exercised its discretion in admitting the testimony of plaintiffs expert that the danger of algae growth was "not within the range of ordinary training or intelligence” (see, Dufel v Green, 84 NY2d 795, 797-798), and defendants waived objection to such testimony by failing to raise it at trial (CPLR 4017; Horton v Smith, 51 NY2d 798, 799).

We have considered defendants’ remaining contentions and find them to be without merit. Concur—Rosenberger, J. P., Ellerin and Rubin, JJ.