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It is notoriously hard to win a premises liability case on summary judgment, but we do so often, and here we did it again. Plaintiff, an adult water park patron, was sliding down the “Grand Prix Splashway” water slide when her “foot hit into a piece of concrete” at the bottom end, just before she splashed into the pool at the bottom of the slide, causing her ankle to twist violently, resulting in a trimalleolar fracture. She testified at her deposition that “it looked like something was sticking out just a tiny bit at the end of the slide.” Whatever this object was, it did not cause her slow down. She also testified that when her body went into the pool, her feet were still facing straight ahead and “definitely” went into the water. She was wearing “water shoes” at the time.

Zoom Flume’s manager testified that his own crew built the Grand Prix Splashway in the mid 1990s out of lumber, foam, vinyl and glue. The sliding surface is a vinyl coating with foam and wood underneath. There is no concrete associated with the construction. There is a ride attendant at the top of the slide who instructs patrons how to slide. Each lane on the slide has water jets that send water down the slide. The manager is a co-owner and is informed of all accidents at the park. This plaintiff’s incident was the first associated with this slide. The ride is inspected annually by the New York State Department of Labor, and the last inspection was one month prior to this accident; the ride passed inspection.

This testimony by defendant, held the Court on our motion for summary judgment, met defendant’s initial burden by showing that defendant neither created nor had actual or constructive notice of a dangerous or defective condition on the slide, and further, “that plaintiff assumed the risks inherent in riding such water slide. Thus, the burden shifted to the plaintiffs to raise a triable issue of fact sufficient to defeat the motion.”

In opposition to the motion, plaintiffs submitted the affidavit of an expert who stated that “defendants failed to properly monitor the level of water in the slide and failed to properly monitor the footwear that the patrons were utilizing.” If defendants had “followed standard protocol,” this injury “could have been prevented,” he said. But “significantly,” held the Court, plaintiff’s expert “never inspected the Grand Prix Splashway water slide and appears to base his opinions and conclusions on his review of plaintiff’s Bill of Particulars, the examination before trial transcripts, photographs, and his discussions with the plaintiff.” However there is no indication that the photographs reviewed by the expert “fairly and accurately represent the condition of the slide on the day of plaintiff’s accident.” While the expert “states with engineering certainty that water slides require a certain level of water to safely transport the participant from the top of the slide to the water below, he does not indicate what the required level of water on a water slide should be and he makes no reference to any applicable industry standards and/or practices regarding the appropriate or safe level of water on a water slide.”

Additionally, the expert’s opinion that the plaintiff was traveling at a “‘higher rate of speed... most likely... due to a low level of water on the slide’ is based solely on plaintiff’s testimony that there was ‘a couple of inches of water’ on the slide, that she was going ‘very fast,’ and that she reached the bottom of the slide before her daughter or her daughter’s friend, and not on any personal observations or inspections of the slide....” And the expert’s opinion that “‘it appears that plaintiff’s rubber water shoes interacted with the rubber coating on the sides of the slide caused an adhesion’ is conclusory and based on nothing more than plaintiff’s description of the injury.”

“The duty owed by an owner of premises where a sporting or recreational activity takes place is a duty to exercise cae to make the conditions as safe as they appear to be.

Thus, the owner of such premises will be relieved from liability for inherent risks of engaging in a sport or recreational activity on its premises when a consenting participant is aware of the risks, has an appreciation of the nature of the risks, and voluntarily assumes the risks. If the risks of the activity are fully comprehended or perfectly obvious, the plaintiff has consented to them and the defendant has performed the duty,” held the Court.

Here, “plaintiff acknowledged in her recent affidavit [in opposition to our motion] that she understands that there are risks associated with using water slides.[and] has presented no competent evidence from which it could be concluded that the defendants concealed or unreasonably enhanced the danger, engaged in recklss or intentional conduct, or created conditions which were unique or above those inherent in riding a water slide.” Summary judgment was granted to defendant.