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How can a slip and fall claim be prosecute if someone fell in a public shower of the fitness center in New York State?

Forest Hills, NY |

A long-term member of the fitness center (intended for family use) slipped and fell upon entering a public shower room (which had no mats). A Member slipped and fell due to a slippery substance nearby a moderate pool of water. A member was not barefoot and was wearing shower slippers. Male shower room also had no shower stalls and tiles were slippery. The rails were around the wall only (it was impossible to grab the rails if someone fell in the middle of the shower area. Member sustained severe personal injuries. Are there any successful NY Supreme Court Cases and/or case Laws that can be used against the landlord/tenant. What is the responsibility of the maintenance people? Is prior written Notice required or the maintenance people should have reasonably be on notice?

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Attorney answers 6

Posted

While there is a good argument to be made that there should have been rubber mats down, the defendants will counter that 1) showers are slippery 2) the danger was open and obvious and 3) the injured person assumed the risk of slipping by entering an obviously wet shower. Now, this combination may obviate the club's duty to warn, and in some cases may even cause a judge to dismiss the plaintiff's case on a motion for summary judgment. The best case scenario would be that the pltf lawyer defeats summary judgment and gets past a motion to dismiss at trial at the close of plaintiff's evidence. This would allow the case to get to a jury, where the jury would assign a percentage of fault to the health club and to the plaintiff. Any award the plaintiff receives will be reduced by the percentage of fault he bore. I'm sorry that the person sustained serious injuries. I urge you to contact a lawyer in your area. You may find one through this site.

I may be contacted at 212-553-9300.

Andrew Lawrence Weitz

Andrew Lawrence Weitz

Posted

there is also an argument to be made that the shower should have been closed until rubber mats were put down

Asker

Posted

Thank you for your response as it was very helpful regarding a prior notice. Would you refer me to a statute that specifies that?. I am very interested in reading it. Thank you.

Asker

Posted

The mats were placed after he fell. There were no mats prior to his fall which makes me belief that they had no intentions of doing so.

Andrew Lawrence Weitz

Andrew Lawrence Weitz

Posted

notice as it applies to this situation is a common law principle. that is, it is a concept developed through case law. when dealing with a municipality, though, there is almost always a prior written notice law that is codified in a statute. the cases dealing with notice are legion. you can probably google "case law notice in (state)" and find cases. there are different kinds of notice, actual, constructive, etc.

Asker

Posted

Will look into it. Thank you.

Andrew Lawrence Weitz

Andrew Lawrence Weitz

Posted

let me know if you need help

Asker

Posted

Does Article 165 (C) OF THE NYS Health Department apply here?

Andrew Lawrence Weitz

Andrew Lawrence Weitz

Posted

I think you mean Article 165 of the NYC health code. was this fitness center in one of the five boros? 165 was amended in 2009 to cover "spray grounds" for sanitary reasons. the statute t large governs the number and configuration of showers in all bathing areas, including anyplace a steam and sauna is located. there is nothing really about mats.

Asker

Posted

You are right My appologies its Article 165 of NYC Health Code. It says nothing about mats but it says that the floors must be kept in slip resistant condition. The floor at that facility is made of tiles and is extra slippery. Also people on wheel chairs come there if that changes anything regarding construction of the shower area.

Posted

Sorry for the members situation. That said, a very difficult claim to prove with a serious issue of potential comparative negligence. Speak with a few lawyers who specialize in personal injury litigation. Try to retain the one you are most comfortable with and confident. Don't delay and don't speak with the health facility (or their insurer). Good luck.

Personal injury cases only; I'm good at it; you be the Judge! All information provided is for informational and educational purposes only. No attorney client relationship has been formed or should be inferred. Please speak with a local and qualified attorney. I truly wish you and those close to you all the best. Jeff www.nyelderinjurylaw.com

Asker

Posted

Thank you.

Jeffrey Mark Adams

Jeffrey Mark Adams

Posted

your welcome

Posted

Slip and falls in showers are tough cases, but contact one of the personal injury lawyers above in your state to investigate.

Asker

Posted

One more detail. A wall to wall mats have been placed about 2 -3 weeks after the fall. Does that change anything?

Andrew Lawrence Weitz

Andrew Lawrence Weitz

Posted

no. that is known as a subsequent remedial measure, and it is inadmissible.

Andrew Lawrence Weitz

Andrew Lawrence Weitz

Posted

that is known as a subsequent remedial measure and is inadmissible.

Asker

Posted

Is there a law, rules or regulations that state that mats have to be placed in public showers or fitness center.showers? Or its optional?

Andrew Lawrence Weitz

Andrew Lawrence Weitz

Posted

a cursory look at the Public Health Law (ny) and the General Business Law (ny) does not show they are required. however, the requirement may be elsewhere.

Asker

Posted

So basically any fitness center may get away with slip and fall accidents sustained in the shower?

Posted

At first glance it appears that it would be very difficult to prove negligence against the club. However, if the injuries are significant, I would personally go to the scene of the accident and inspect it myself. Moreover, if I concluded that there was at least a question of fact as to whether the shower area posed a danger to the members, and that the owner of the club either knew or should have known of that "danger", then I would immediately retain an expert to inspect the scene and render a written report as to the specifics of how the club was negligent. Assuming the club is not a governmental entity, no prior notice is required.

Andrew Lawrence Weitz

Andrew Lawrence Weitz

Posted

unless there is a defect in design and/or construction, your expert's opinion would likely be within the ken of the average juror and, thus, inadmissible. if the expert is offered to give an opinion as to the coefficient of friction of a wet rubber mat vs a wet tile floor, the same argument would pertain. that is, the fact that wet rubber mats are less slippery than wet tile floors is within the ken of the average juror. now, an expert who could opine that the shower should have been closed if the mats were missing, you would have a good witness. for this one would ideally have a health club manager. additionally, you old have to demand all of the club's manuals. training policies and cleaning logs there's more, but this is a start.

Asker

Posted

Thank you.

Posted

I agree with my colleagues. Your argument would have to be that the fitness club and/or the owner of the property failed to properly maintain the shower area in a safe condition. That would include providing appropriate handrails, mats, warnings, and inadequate tiles, among other potential arguments. Also, sometimes companies such as Cintas, maintain and replace mats on a regular basis. As such, they could be partially liable too.

With all of that being said, the obvious counter argument is that the shower area is slippery when wet. As such, the member is more than 50% at fault. If thats true, then his claim is barred.

Depending on the fitness club's records (i.e. were there prior falls or complaints and the club took no action), will likely be a crucial factor.

If the injuries are severe, its worth investigating. Don't do it yourself. Don't wait until the fitness club's records are missing. Immediately seek an experienced personal injury attorney who offers free 30 minute consultations, such as myself.

Good luck.

The above is general information only and is not legal advice. The information provided does not form an attorney-client relationship, and should not be relied upon to take or refrain from taking any action. I am not your attorney until we sign a retainer agreement.

Asker

Posted

Thank you Mr. Simon.

Posted

There is no prior written notice requirement, but it will have to be proved that the facility knew or should have known of whatever dangerous condition caused you to fall. You should definitely consult with a NY personal injury attorney ASAP so he can ascertain the facts in more depth and go to the scene so that the danger posed can be accurately assessed. Until this is done, there is no way to tell if you case is worth pursuing.

Asker

Posted

Thank you.

David Ian Schoen

David Ian Schoen

Posted

Good Luck.

Asker

Posted

Thanks.

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