The First Department, over a two-justice dissent, determined defendant was not entitled to summary judgment in a slip and fall case. Plaintiff alleged he slipped on water in a locker room in the vicinity of a swimming pool and showers. The majority rejected the argument that water in the locker room was necessarily incidental to the use of the locker room (the dissent’s argument):
[D]efendant cannot obtain summary judgment here by relying on the cases cited by the dissent, in which this Court dismissed personal injury claims arising out of slipping on water in gyms based on the reasoning that “water was necessarily incidental to the use of the area” (Noboa-Jaquez v Town Sports Intl., LLC, 138 AD3d 493 [1st Dept 2016]; Dove v Manhattan Plaza Health Club, 113 AD3d 455 [1st Dept 2015], lv denied 24 NY3d 901 [2014]). In Dove, the plaintiff “slipped and fell on water located on the tile floor around the indoor pool of defendants’ health club,” prompting this Court to observe that “the presence of such water was necessarily incidental’ to the use of the pool” … . In Noboa-Jaquez, the plaintiff slipped on the tiled floor in the area of the gym’s showers, and this Court applied the same reasoning as in Dove to hold that “[t]he mere presence of water on a tiled floor adjacent to the gym’s showers cannot impart liability, particularly since water was necessarily incidental to the use of the area” … . Neither of those holdings stands for the broader proposition that any water on a tiled floor anywhere in a locker room must preclude a claim for negligence because water is “necessarily incidental” to the entire locker room’s intended use. From the evidence before us, it does not appear that plaintiff was in the shower area, and he had clearly left the pool area. Grossman v TCR, 2016 NY Slip Op 06114, 1st Dept 9-21-16
NEGLIGENCE (WATER ON LOCKER ROOM FLOOR WAS NOT NECESSARILY INCIDENTAL TO USE OF THE AREA, DEFENSE MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED)/SLIP AND FALL (WATER ON LOCKER ROOM FLOOR WAS NOT NECESSARILY INCIDENTAL TO USE OF THE AREA, DEFENSE MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED)