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OUT-OF-POSSESSION LANDLORDS FAILED TO DEMONSTRATE THAT THE SLANTED FLOOR OF THE IN-GROUND POOL WAS NOT A DANGEROUS CONDITION AND THAT THEY DID NOT HAVE CONSTRUCTIVE NOTICE OF THE WAY THE POOL WAS BUILT, THE LANDLORDS’ MOTION FOR SUMMARY JUDGMENT IN THIS DIVING ACCIDENT CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department determined the products liability cause of action against the builder of an in-ground swimming pool (Swim Tech) properly survived summary judgment and further determined the out-of-possession landlords’ motion for summary judgment should not have been granted. Plaintiff dove into the pool and struck his head on a slant portion of the pool wall/floor. With respect to the property owners’ liability, the court wrote:

An out-of-possession landowner who has assumed the obligation to make repairs to its property can be held liable for injuries caused by a dangerous condition if it is established that the landowner created or had actual or constructive notice of the condition … . Whether a dangerous condition exists on property so as to create liability on the part of a landowner depends on the particular circumstances of each case and is generally a question of fact for the jury … . ” [T]he owner of a private residential swimming pool has a duty to maintain the pool in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury and the burden of avoiding the risk'” … . A landowner also has the duty to warn of potentially dangerous conditions that are not readily observable … . ” To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit [the defendants] to discover and remedy it'” … .

Here, the owners failed to establish, prima facie, that the slanted wall in the deep end of their pool was not dangerous or that they lacked constructive notice of the condition … . McDermott v Santos, 2019 NY Slip Op 03039, Second Dept 4-24-19

 

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