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Brignoni v Big Bowl LLC
2011 NY Slip Op 32616(U)
October 4, 2011
Supreme Court, New York County
Docket Number: 114713/09
Judge: Joan A. Madden
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- NEW YORK
SUPREME COURT OF THE STATE OF NEW YORK
JOAN A. MADDEN
Index Number : 1 1471312009
INDEX N O .
MOTION SEQ. NO.
I SEQUENCE NUMBER. 001
MOTION CAL. NO.
- rnotlon to/for
Notice of Motion/ Order to Show Cause - Affldavlta - Exhiblts
Anawering Affidavlta - Exhibits
OCT 04 2011
COUNTY CLERKS OFFICE
a FINAL DISPOSITION
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BIG BOWL LLC d/b/a LEISURE TIME B O W ,
OCT 04 2011
In this personal injury action, defendant Big Bowl LLC d/b/a Leisure Time Bowl,
(“Leisure Time”) moves for summary judgment dismissing the complaint against it.
Plaintiff Irma Brignoni opposes the motion, which is denied for the reasons set forth
Plaintiff alleges that she sustained personal injuries on September 13,2009, at
Leisure Time’s bowling alley at 625 Eighth Avenue, New York, New York, while
attempting to retrieve a bowling ball which had been thrown down the lane. Specifically,
plaintiff alleges that, after her foot had crossed the foul line, the slippery condition of the
lane caused her to slip and fall to the ground, causing injury to her shoulder.
At her deposition plaintiff testified that on the date of the accident, family
members had taken her to Leisure Time’s bowling alley to celebrate her birthday.
Brignoni dep., at 15. Plaintiff testified that, at no time after entering the facility did any
Leisure Time employee offer warnings or explanations of the rules of the bowling alley,
and that no one told her that crossing the foul line was dangerous, nor did she see any
signs anywhere in the facility that warned bowlers of the slippery condition of the lanes.
u, 21, 28.
The family bowled for approximately one hour without incident.
u, 22. After
the family had finished bowling for the evening, plaintiff observed her young grandson
throw a ball down the same lane where they had just been bowling.
attempted to retrieve the ball by “speed walking” past the foul line in order to stop the
ball from going any further down the lane.
Id. Plaintiff does not recall how many steps
she had taken past the foul line; however, before she reached the ball, both feet left the
ground as she fell “up in the air,” landing on her left hand and a m fi,at 40,42.
Plaintiff alleges that due to Leisure Time’s negligence in failing to properly
maintain the lanes, and in failing to properly warn patrons of the slippery condition of the
lanes, she was caused to slip and fall and incurred a severe injury to her shoulder.
At his deposition, Albert Santana (“Santana”), a maintenance madporter
employed by Leisure Time, testified that he was working at the bowling alley on the
night of plaintiffs accident. Santana dep., at 6-8. Santana is responsible for, inter alia,
maintaining the approach area of the lanes, but does not do any work beyond the foul
Santana stated that he had spoken to plaintiff and others in her party right after
they had received their lane assignment.
Santana remembers explaining to
them how to use the console and how to order food and drinks, and also informing them
of the bowling alley’s rules, including that no one should go past the foul line because the
lanes were oiled and slippery. 1p. Santana further testified that, on more than 20
occasions, he had observed a bowler slip and fall after someone had stepped beyond the
foul line and tracked oil from the lane back to the approach.
Leisure Time’s head mechanic, Lawrence Kenny ((‘Kenny”), was also deposed
and confirmed that he was responsible for cleaning and maintaining the lanes. Kenny
dep., at 7. Kenny testified that after a cleaning machine is placed at the foul line, the
appropriate program is set, and the machine proceeds down the lane towards the pins,
then returns to the foul line.
The conditioning begins approximately four-
and-a-half inches from the foul line which, according to Kenny, is “basically industry
U Kenny testified that a low viscosity oil is used on the lanes since this is
the appropriate oil for the average Leisure Time bowler. d
at 35. Kenny further
testified that “every once in a while” people step over the foul line track oil from the lane
into the approach.
Leisure Time now moves for summary judgment, arguing that it has made a
prima facie showing that it neither created the allegedly hazardous condition which
caused the accident, nor had actual or constructive notice of the condition. Leisure Time
also asserts that the record establishes that it provided adequate warnings of the
condition, including a verbal warnings from an employee, and a conspicuous warning
about not crossing the foul line that was in place at the console where the plaintiff sat
throughout the evening. The sign reads, “Warning. Do not cross foul line! Condition on
lane beyond foul line is slippery. Report abnormal conditions to the desk person. Do not
operate bumpers! Contact desk person for assistance.” $ee, Leisure Time’s Exhibit 5.
Further, Leisure Time asserts that, as a voluntary participant in bowling which is
a sporting or recreational activity, plaintiff consented to those commonly-appreciated
risks which are inherent in and arise out of the nature of the activity generally, and which
flow from such participation. &e, Morgan v. State of New York, 90 N.Y.2d 471,484
(1 997); Benitez v. New York City Bd. of Educ., 73 N.Y.2d 650 (1989); Leslie v. Splish
at Adveptureland, 1 A.D.2d 320 (2003). In this connection, Leisure Time argues
that the oil used to maintain the lanes is not a foreign substance and constitutes a
commonly-appreciated risk that is inherent to the sport of bowling. In any event, Leisure
Time maintains that no notice of any alleged defect or foreign substance was ever given
or made by plaintiff or anyone on her behalf.
Thus, Leisure Time contends that as record demonstrates that there is no triable
fact as to its negligence, it is entitled to summary judgment dismissing the complaint.
In opposition, plaintiff contends that since the oiling and maintaining of the lanes
was under Leisure Time’s exclusive control, triable issues of fact exist as to whether
Leisure Time created the allegedly hazardous condition which caused plaintiffs injury.
Additionally, plaintiff argues that, based on Mr. Santana’s and Mr. Kenney’s testimony
acknowledging a persistent problem with bowlers tracking oil into the approach area, a
triable issue of fact exists as to whether Leisure Time had notice of a slippery condition
in the approach area.
L further support of her position, plaintiff submits the affidavit of John H. Hanst
(“Hanst”), a Recreational Hazards Forensic Expert who states that he has extensive
experience in recreational hazards, accident prevention and recreational safety. Hanst
opines that Leisure Time did not adequately warn of the slip and fall danger in the area
near the foul line since the sign on the console was too small and too inconspicuous to be
sufficient warning. Hanst Affidavit, at 4. Additionally, he opines that since the scoring
is computerized, an entire game can be played without anyone sitting at the console,
which means that the sign may be overlooked by a majority of bowlers.
further states since bowlers regularly track oil into the approach area, the danger of
slipping and falling is significant and foreseeable, I ,at 5 . Hanst believes additional
warnings should have been placed throughout the alley and near the lanes themselves.
Hanst also opines that the four-and-a-half inch area that remained un-oiled
beyond the foul line was not a sufficient distance to protect against a slipping hazard,
stating that the general guideline in bowling is to begin oiling at least six inches past the
Id.,at 4-5.He also states that use of a low viscosity oil used by Leisure Time
caused the area to becomes slicker and more slippery than it would be with medium or
high viscosity oil. L a t 5 . Hanst concludes that the lane in question was conditioned
with too much low viscosity oil, so that bowlers who inadvertently stepped over the foul
line would fall ‘‘asif they were slipping on a pond.”
On a motion for summary judgment, the proponent “must make aprimafacie
showing of entitlement to judgment as a matter of law, tendering sufficient evidence to
eliminate any material issues of fact from the face.. .” Winegrad v. New York U niv.
Med. Ctr., 64 N.Y.2d 85 1,852 (1985). Once the proponent has made this showing, the
burden of proof shifts to the party opposing the motion to produce evidentiary proof in
admissible form to establish that material issues of fact exist and require a trial. Alvarez
v. ProsDect Hosp L, 68 N.Y.2d 320,324 (1986).
In the instant case, even assuming arguendo that Leisure Time has made aprima
facie showing entitling it to summary judgment, plaintiff has controverted this showing
by providing evidence sufficient to raise triable issues of fact.
An owner or occupier of a premises who makes it available to the public is
obligated to use reasonable care to make the premise safe for its intended use.
van Kelton Amusernent Corp,, 228 N.Y. 396, 397 (1920); 85 N.Y.Jur.2d Premises
This rule applies to a proprietor of a bowling alley who has been held to a
owes a duty to his or her patrons to exercise ordinary and reasonable care to keep the
premises in a reasonably safe condition for its contemplated use. &,Xtelter v. Cordeq,
146 A.D. 300, 300 (2nd Dept 1911). Such proprietor is not, however, an insurer of their
See,Preston y. Newlw& Y.M.C.A., 271 A.D. 797 (2d Dept 1946).
Thus, if an injury is caused by a defect in the approach or sliding area of a bowling alley,
liability must be predicated on the negligence of the proprietor in causing or creating the
defect, having actual or constructive notice of a defect, andor negligently failing to
discover the defect. Kames v. Cobqes Bowl& Arena. &, 2 A.D.3d 1034 (3rd Dep’t
2003); Overton v. Leisure Time Recreation, 280 A.D.2d 655 (2d Dept 2001); Stelter v.
Cordes, 146 A.D. at 300.
Here, Leisure Time argues that although it oiled the lanes, and thereby created the
condition which caused plaintiff to fall, oil on the lane does not constitute a foreign
substance. Rather, Leisure Time argues that it is entitled to summary judgment as the oil
that caused plaintiffs accident is an example of a commonly-appreciated risk that is
inherent to the sport of bowling, in which plaintiff voluntarily participated, and an open
and obvious condition.
Leisure Time’s position is without merit. The assumption of risk to be implied
from participation in a sport with awareness of the risk “is generally a question of fact for
a jury [and] dismissal of a complaint as a matter of law is warranted [only] when on the
evidentiary materials before the court no fact issue remains for decision by the trier of
fact.” m d p x v. City ofNew York 66 N.Y.2d 270,279 (1985).
Although Leisure Time argues that plaintiff assumed the risks associated with
bowling, it is well settled that a participant in a recreational activity will not be deemed to
have assumed the risk if, due to another’s negligence, the risks “were unique and resulted
in a dangerous condition over and above the usual dangers inherent in the activity” ,&
&os v. Town of Colonie, 256 A.D.2d 900 (3rd Dep’t 1998). Here, the expert affidavit
submitted by plaintiff raises triable issue of fact as to whether Leisure Time enhanced the
risk of injury through its negligence in oiling the lane four-and-a-half inches past the foul
line as opposed to six inches, and by using low viscosity oil.’ See Garafolo v. A.M.F,
White Plains Bowl, 277 A.D.2d 283 (2d Dept 2000)(bowling alley is not entitled to
summary dismissal in cases where the bowling patron alleges a slip and fall accident due
to misapplied oil or conditioning wax on the bowling 1ane);Conm v. Clover Lanes, 199
A.D.2d 1067 (4‘hDept 1993)(triable issue of fact existed as to whether bowler assumed
the risk of injury when she stepped over foul line and slipped and fell on oil applied to
Next, in light of Mr. Santana’s and Mr. Kenny’s testimony that they regularly saw
bowlers slip and fall as a result of oil applied to the alley, a jury must decide whether
Leisure Time had notice of a dangerous condition and whether the warnings provided
’In contrast to the cases relied upon by Leisure Time ( M a w v, Rosedale Enters., 60
A.D.3d 401 (1’‘ Dept 2009) and the expert affidavit submitted in this action is sufficiently
probative to be considered.
were sufficient to satisfied its duty to plaintiff. Rothnn v. AMF Babylon Lanes, 30
A.D.3d 398 (2d Dept 2006); Tfiavlos v. Coram Countrv Lanes,
,56 A.D.3d 661 (2d
Furthermore, while it may be argued that plaintiff was negligent in seeking to
recover the ball past the foul line, any such negligence would not serve to eliminate
Leisure Time’s liability. Gonzalez v, pLsc Interior Const., 83 A.D.3d 418,419 (lSt
201 1); Smith v , m , 274 A.D.2d 885 (3d Dept 2000).
Finally, it cannot be said as a matter of law that the oil used to condition the lanes
was an open and obvious condition. In any event, “that a defect may be open and
obvious does not negate a landowner’s duty to maintain its premises in a reasonably safe
condition, but may raise an issue of fact as to the plaintiffs comparative negligence.”
44 A.D.3d 842,843 (2d Dept 2007).
Accordingly, as there are triable issues of fact as to whether plaintiffs injuries
were caused by Leisure Time’s negligence, Leisure Time’s motion for summary
judgment must be denied.
In view of the above, it is
ORDERED that the motion for summary judgment by defendant Leisure Time
Bowl is denied; and it is further
ORDERED that a pre-trial conference shall be held in Part 11 room 35 1,60
Centre Street, New York, NY, on October 27,201 1, at 2: 15 pm.
OCT 04 2011
COUNTY CLERKS OFFICE