Defendants, SPLISH SPLASH AT ADVENTURELAND, INC. (hereinafter referred to as ("SPLISH SPLASH"), moves for an order granting it summary judgment dismissing the action, pursuant to CPLR Rule 3212, on the ground that no triable issue of fact exists as to any liability on their part. Plaintiffs, CHRISTOPHER ORTIZ, by his mother and natural guardian, LYDIA ORTIZ, and LYDIA ORTIZ, individually, oppose the motion. The Court notes that plaintiffs previously stipulated to discontinue the action against REALTY INCOME CORPORATION and PALACE ENTERTAINMENT, INC., without prejudice, and the instant motion is, thus, limited to the alleged negligence of SPLISH SPLASH. The motion is determined as follows:

Background

This action arises out of an accident that occurred on July 1, 2002 at the SPLISH SPLASH water amusement park in Calverton, New York. It appears that plaintiff, LYDIA ORTIZ, brought her son, CHRISTOPHER, and his friend, Kevin, to SPLISH SPLASH in the morning and that the accident occurred in the afternoon, after they had been at the park for four (4) or five (5) hours and CHRISTOPHER had been on numerous other water rides. Plaintiffs assert that the accident occurred when CHRISTOPHER, eleven (11) years old at the time, was getting into position for a water ride known as "Shotgun Falls". Shotgun Falls is a water slide in which an individual climbs up approximately fourteen (14) feet to a tower which contains a "start tub", where [*2]the rider positions himself on the surface of the slide, and then slides down about thirty (30) feet to land in a pool of water about ten (10) feet deep. This water ride is a "body slide" that does not involve the use of rafts or tubes. CHRISTOPHER testified at his deposition, on June 28, 2006, that he was following instructions to lay down on the surface and slide to the bottom receiving pool when the accident occurred. He testified that "I stood in the pool waiting to go down the slide. I was getting prepared and the water took me. I banged my leg against the side of the tub, the slide you could say, and from there on I experience pain in my leg, right leg". He further testified that, at the point he was "taken" by the water, he was somewhere between standing and lying down and he continued down the slide because "[t]here was no way of stopping". He stated that, although he could ordinarily swim, he could not do so after he entered the receiving pool because of his injury. He claims that the lifeguard on duty at the bottom of the ride did not come to help him and his mother had to come to pull him out of the water.

The deposition of LYDIA ORTIZ reflects that, although she did not see CHRISTOPHER strike his leg, she saw him "coming down and I immediately felt there was something wrong by his expression in his face and the sound that came out of his voice". She testified that "he was fine as he was standing up and immediately as he was going down, I saw pain. I saw him yelling. I saw him like trying to grab for his leg. But the water force, he was going so fast". She stated that she jumped in the pool and pulled him out.

After CHRISTOPHER was removed from the pool, a SPLISH SPLASH employee radioed for an ambulance at the request of Ms. ORTIZ, and CHRISTOPHER was removed from the park on a stretcher and taken to Central Suffolk Hospital, where he was x-rayed and diagnosed with a broken tibia. LYDIA ORTIZ testified that she was told by the emergency room to take CHRISTOPHER to an orthopedic doctor and, thereafter, within two (2) days of the accident, she took him to Island Orthopedics in Massapequa, New York, where he was placed in a long leg cast, from his groin to the bottom of his foot, with only his toes showing.

On June 24, 2005, plaintiff commenced the instant negligence action with the filing of the summons and verified complaint, in which plaintiffs asserted causes of action for negligence and claimed that SPLISH SPLASH was negligent in the ownership, operation, maintenance, management, supervision and control of the subject water park. On or about August 30, 2005, issue was joined by service of the verified answer, in which defendants denied all of the allegations set forth in the complaint and asserted several affirmative defenses, including the defense that plaintiff assumed the risk of injury and that defendants neither created nor had notice of the alleged dangerous condition.

In the verified bill of particulars, sworn to December 21, 2005, plaintiffs claimed that "this accident occurred when the infant plaintiff CHRISTOPHER ORTIZ, was caused to slip and fall due to the water jets located in the start tub of The Shot Gun Ride' located at Splish Splash". Plaintiffs claimed, inter alia, that SPLISH SPLASH had actual and constructive notice of the dangerous, defective and hazardous condition on the Shotgun ride and negligently allowed the water jets located in the start tub to constitute a tripping and slipping hazard and negligently permitted the water jets in the start tub at the [*3]Shotgun ride to become and remain in a dangerous, defective and hazardous condition. Moreover, plaintiffs claimed that SPLISH SPLASH hired untrained personnel to supervise children and failed to provide appropriate supervision.

In support of the motion for summary judgment, counsel submits the deposition transcript of James Cleary, the Vice President of SPLISH SPLASH, who testified that SPLISH SPLASH did not design or construct "Shotgun Falls" and that, since the date it was installed in 1994 until the date of the subject accident in 2002, there had been no structural changes to the ride, and that he was unaware of any prior complaints, problems or similar accidents on the water ride. He testified that there are warning and instruction signs posted throughout the water park, and at the entrance of "Shotgun Falls", which describe the proper way to ride the attraction "in a laying position [with] legs crossed", and that the instructions are repeated verbally over loudspeakers placed throughout the line to the slide, and that staff member/lifeguard's positioned at the start of the slide also provide instructions. Mr. Cleary gave a detailed description of how to safely and properly ride the attraction and stated that the ride began when the patron is "called forward" by the lifeguard/attendant, steps into the start tub, folds his or her legs, lays down and scoots forward. He claimed that the slide and gravity would take it from there. Mr. Cleary related that, after the park closes to the public, the maintenance crew inspects each slide, including "Shotgun Falls", and the following morning, before the park opens to the public, the maintenance crew completes a similar inspection including a check of the water quality to make sure the water pumps were working properly. Mr. Cleary contends that, if there is a problem, it is corrected before opening the ride to patrons. He states that "Shotgun Falls" has never been shut down by the authorities and that the aquatic staff at SPLISH SPLASH regularly inspected the attraction and, as a final check, rides the attraction before the park opens to the public.

With respect to the water jets at "Shotgun Falls", Mr. Cleary testified that, at the start of the ride, a small volume of water enters the flume through multiple "orifices" with sufficient water to lubricate the tub and slide so that patrons can go down the slide. He described the water flow as a "gurgle" and he testified that the water flow was not "under any high pressure". He stressed that SPLISH SPLASH never had any problems with the water coming out of the "orifices" in other than a "gurgle", and that the water pump was designed by one of several other entitles to pump only so many gallons. It is Mr. Cleary's position that SPLISH SPLASH did not create the pump or the water pressure and there is no evidence that the pressure was inconsistent or at a dangerous level at the time of the accident.

In its Memorandum of Law, SPLISH SPLASH argues that it has made a prima facie showing that it is entitled to judgment as a matter of law in that it has demonstrated that it neither created nor had notice of an allegedly defective or dangerous condition on the "Shotgun Falls" water slide. It contends that plaintiffs cannot establish that SPLISH SPLASH owed plaintiff a duty of care, that it breached this duty and that the resulting injury was proximately caused by the breach. Moreover, counsel for SPLISH SPLASH asserts that any putative duty of care was negated, as a matter of law, by plaintiff's assumption of the risk. Counsel points out that plaintiffs are not sure how CHRISTOPHER injured himself, but believe that he may have hit his leg on the side of [*4]the water slide. Counsel urges that there no evidence whatsoever that the slide was dangerous or defective, and no proof that SPLISH SPLASH created or had notice of any dangerous or defective condition. Counsel for SPLISH SPLASH claims that there are no material of issues of fact that must be tried by a jury and that plaintiffs' conclusory allegations that he was not helped by the lifeguard/attendants is belied by CHRISTOPHER's admission that he did not call for help when he first injured his leg and did not tell the attendant in the receiving pool that he could not swim. It is SPLISH SPLASH's position that plaintiffs' presumption that the ride was unsafe in any way is speculative and unfounded and that it is entitled to summary judgment as a matter of law, citing Segretti v Shorenstein Co., East, L.P., 256 AD2d 234, 682 NYS2d 176 (1st Dept. 1998), which holds that mere speculation regarding causation is inadequate to sustain a cause of action for negligence.

In opposition to the motion, counsel for plaintiffs' submits the recent affidavits of CHRISTOPHER and his mother wherein CHRISTOPHER claims, for the first time, that, when he landed in the deep pool at the bottom of the ride, he "screamed for help but the lifeguard didn't help at all. My mother had to jump in to save me". Moreover, he states that he was taken into the force of the water very quickly in the slide, while he was trying to go from the starting pool to the slide, and struck his leg on the side of the slide, breaking it. He contends that he had nothing to hold onto that would have allowed him to resist the force of the water, like a handrail, nor any help from the lifeguard who was standing nearby. He suggests that, if the water was more moderate, he would have been able to lower himself into the ride more slowly and would not have been hurt. LYDIA ORTIZ reiterates her son's version of the events and asserts "[t]here is no doubt that my son hurt himself when he was swept by the water pressure while entering the slide and broke his leg when he struck it on the side of the slide. This happened because the force of the water and the lack of help from the lifeguard at the top of the slide or some sort of handrail or other sturdy object to grab onto while lowering himself into the ride". Ms. ORTIZ acknowledges that "Shotgun Falls" "is basically a slide that a person goes down after climbing up a ladder and that "[t]he riders come down the slide very fast".

In the Memorandum of Law, counsel for plaintiffs states that the entire ride was defective because the water pressure took plaintiff before he was ready, and because there was nothing to hold onto such as a lifeguard or a simple handrail or grip at the top of the ride, which would have protected the infant plaintiff from the force of the water. Counsel further argues that the claim that CHRISTOPHER assumed the risk is without merit because the force, that was more than a "gurgle", took plaintiff by surprise and there was nothing to hold onto. Indeed, he suggests that res ipsa loquiter should apply. It is plaintiffs' position that SPLISH SPLASH has not demonstrated that it is entitled to judgment as a matter of law and that questions of fact exist to require a trial. Counsel claims that defendant has not provided a sworn statement from a witness that the pump was operating properly at the time of the accident but, instead, relies on the policy and general descriptions of its President, without any sworn testimony as to what happened on that particular day. Counsel agrees that CHRISTOPHER was wearing a bathing suit and that the slide had to be slippery for it to work, but claims that the accident was caused by water pressure that was able to "take" this eleven (11) year old boy while he [*5]was lowering himself into the starting tub, and by the failure of the lifeguard to help him into position and by the failure of SPLISH SPLASH to provide a handhold. Counsel argues that the ride was not "as safe as it appeared to be" and that CHRISTOPHER did not assume the risk of a dangerous condition over and above the risk inherent in the subject activity, citing Loewenthal v Catskill Funland, 237 AD2d 262, 654 NYS2d 169( 2nd Dept.1992). Counsel suggest that SPLISH SPLASH's negligence can be seen in allowing the water pressure to become so great as to sweep away a child who was trying to enter the tube before he could get into position and in failing to have the lifeguard help the infant into position or to have a handhold which could assist the child. Counsel for plaintiff urges that the motion for summary judgment be denied. The Court notes that no expert affidavit is annexed with respect to the water jets at the "Shotgun Falls" slide, nor any affidavit from the manufacturer of the equipment.

Applicable Law

The standards of summary judgment are well settled. CPLR Rule 3212 directs that

"...the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact". In viewing motions for summary judgment, the focus of the Court's concern is issue finding, not issue determination, and affidavits should be scrutinized carefully, in a light most favorable to the party opposing the motion. Judice v D'Angelo, 272 AD2d 583, 709 NYS2d 427 (2nd Dept 2000); Robinson v Strong Memorial Hospital, 98 AD2d 976, 470 NYS2d 239 (4th Dept. 1983); Steven v Parker, 99 AD2d 649, 472 NYS2d 225 (4th Dept. 1984).

To grant Summary Judgment it must clearly appear that no material and triable issue of fact is presented... This drastic remedy should not be granted where there is any doubt as to the existence of such issues... or where the issue is "arguable"...

Courts have consistently applied the doctrine of assumption of risk in circumstances such as those before the Court which operates to relieve owners and operators of sporting venues from liability for inherent risks of engaging in a sport or recreational activity. Morgan v State of New York, 90 NY2d 471, 685 NE2d 202, 662 NYS2d 421 (C.A. 1997). It is SPLISH SPLASH's position that plaintiff voluntarily participated in the water slide rides at the amusement park and, therefore, assumed the risks inherent in sliding down slippery slopes from high off the ground into receiving pools at the bottom of the ride. SPLISH SPLASH claims there was an obvious risk of injury that plaintiff assumed as they were apparent and reasonably foreseeable consequences of engaging in the activity. Morgan v State of New York, supra .

With respect to the issue of assumption of risk, Turcotte v Fell, 68 NY2d 432, 510 [*6]NYS2d 49, 502 NE2d 964 (C.A. 1986), placed professional athletes participating in sporting events into the category of "primary" assumption of risk, which limited defendant's duty to exercising due care to make the conditions as safe as they appear to be. "If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty". Turcotte v Fell, supra . Relieving an owner or operator of a sporting venue from liability for the inherent risks of engaging in the sport is justified when a consenting participant is aware of the risks, has an appreciation of the nature of the risks and voluntarily assumes the risks. Morgan v State of New York, supra ; see, Maddox v City of New York, 66 NY2d 270, 496 NYS2d 726, 487 NE2d 553 (C.A. 1985). In Maddox, a professional baseball player was held to have impliedly assumed the risk of injury, as a matter of law, where he knew of the poor condition of the field, was aware of the potential for injury, but continued to participate in the game. In Morgan, a bobsledder's claim was dismissed on assumption of risk grounds where the participant had twenty years of bobsledding experience prior to the accident and was thoroughly familiar with the bobsled course, having raced it many times, and where the course did not present additional or heightened risks beyond those inherent in the highly dangerous sport.

The Court of Appeals in Morgan v State of New York, supra , and many cases to follow, extended the Turcotte principle to non-professional athletes and held "that, by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the sport generally and flow from such participation... [A]wareness of the risk is not to be determined in a vacuum. It is, rather, to be assessed against the background of the skill and experience of the particular plaintiff". Morgan v State of New York, supra , (citations omitted); Gambel v Town of Hempstead, 281 AD2d 391, 721 NYS2d 385 (2nd Dept. 2001). Furthermore, the doctrine encompassed risks associated with the construction of the playing field, and any open and obvious conditions thereon. Gambel v Town of Hempstead, supra ; Maddox v City of New York, supra . However, participants were not deemed to have assumed the risks of reckless or intentional conduct or concealed or unreasonably increased risks. Morgan v State of New York, supra .

Assumption of the risk has been applied to cased involving water park and amusement park attractions. In Leslie v Splish Splash, 1 AD3d 320, 766 NYS2d 599 (2nd Dept. 2003), the plaintiff's claim of personal injury that occurred on a water slide was barred due to plaintiff's assumption of the risk. Plaintiffs reliance on Lowenthal v Catskill Funland Inc., supra , is misplaced. Therein, the Court held that an amusement park customer injured in a go-cart assumed the risk of the activity and cannot recover for his injuries. Courts have found that infants, comparable in age to CHRISTOPHER, have assumed the risk of the sporting activity where, the risk was inherent in the activity. See, Auwarter v Malverne Free School District, 274 AD2d 528, 715 NYS2d 852 (2nd Dept. 2000) (defendant school district entitled to summary judgment because infant plaintiff assumed the risk that he could fall or be injured when he engaged in play on the playground); Milea v Our Lady of Miracles Roman Catholic Church, 290 AD2d 424, 736 NYS2d 84 (2nd Dept. 2002) (nothing presented to substantiate that the subject slide constituted a dangerous condition "over and above" the usual dangers inherent in attractions at a water park).

For res ipsa loquitor to apply, "(1) the event must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or [*7]instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff". (Morejon v Rais Construction Co., 7 NY3d 202, 818 NYS2d 792, 851 NE2d 1143 [C.A. 2006]; Corcoran v Banner Supermarket, Inc., 19 NY2d 425, 280 NYS2d 385, 227 NE2d 304 [C.A. 1967], citing Prosser, Torts, §39 at 218 [3rd Ed.]).

In an action for negligence, the law provides that a defendant is not an insurer, and negligence may not be inferred solely from the happening of an accident, but rather claimant must prove that the defendant breached a duty of care owed to claimant and that the breach of duty proximately caused the claimant's injury. Valentine v State of New York, 192 Misc. 2nd 706, 747 NYS2d 282 (Court of Claims, 2002). Patrick v Bally's Total Fitness, 292 AD2d 433, 739 NYS2d 186 (2nd Dept. 2002), instructs that, while the owner or possessor of property has a duty to maintain the property in a reasonably safe condition and may be held liable for injures arising from a "dangerous condition" on the property, liability attaches to the owner or possessor only if the owner possessor created the condition or had actual knowledge or constructive notice of it, and a reasonable time to remedy it. 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 defendant's employees to discover and remedy it". Gordon v American Museum of Natural History, 67 NY2d 835, 501 NYS2d 646, 492 NE2d 774 (C.A. 1986).

After a careful reading of counsel's submissions, it is the judgment of the Court that SPLISH SPLASH has established its prima facie entitlement to summary judgment and that plaintiffs' have failed to raise a material issue of fact sufficient to defeat the motion. Plaintiffs' opposition to the motion consists of little more than an attorney's hearsay affirmation and recent affidavits of the plaintiffs that attempt to raise issues of fact that do not exist. SPLISH SPLASH has established that it breached no duty to plaintiffs and that it neither created nor had actual or constructive notice of an alleged "dangerous condition" on the "Shotgun Falls" water slide. The testimony of its Vice-President, with personal knowledge of the slide, established that each attraction at SPLISH SPLASH was inspected twice a day, by maintenance and aquatics crews, that signs, warnings and instructions were posted throughout the park about the proper use of the slide, and that he was unaware of any prior accidents or complaints regarding the "Shortgun Falls" ride or the water pressure at the attraction.

Plaintiffs' attorney lacks personal knowledge of the facts and circumstance underlying the action, and his assertions with respect to the operation of the slide and the proper water pressure is of no probative value. (Cf., Jantzen v Leslie Edelman, Inc., 206 AD2d 40, 614 NYS2d 744[2nd Dept. 1994]; Olan v Farrell Lines, Inc. 105 AD2d 653, 481 NYS2d 370 [1st Dept. 1984]; Gardner v Schuster, 91 AD2d 625, 456 NYS2d 807 [2nd Dept. 1982]). Conspicuously absent from the opposition to the motion is an affidavit from an expert: to support plaintiffs' arguments. All that plaintiffs have presented is speculation and conjecture which is insufficient to defeat a motion for summary judgment. (Friends of Animals v Associated Fur Manufacturers, 56 NY2d 1065, 416 NYS2d 790, 390 NE2d 298 [C.A. 1979]). Their depositions do not reflect any mention of the accident being the result of "water pressure" on the slide and their recent affidavits in opposition to the motion for summary judgment appear to be submitted in an attempt to alter their deposition testimony [*8]and are insufficient to defeat the motion, as a matter of law.(See, Smith v Taylor, 279 AD2d 566, 719 NYS2d 686 [2nd Dept. 2001]).

The Court rejects plaintiffs argument that the doctrine of res ipsa loquitor should apply. Plaintiffs have failed to demonstrate each element of the theory and their pleadings and bill of particulars are silent regarding res ipsa loquitor. Plaintiffs do not know what caused the accident but speculate that it was due to the water pressure. They have not demonstrated that a defect in the water pressure existed at the time of the accident, nor demonstrated that SPLISH SPLASH was negligent or that CHRISTOPHER's own actions did not contribute to the injury. It is the view of the Court that this accident could have occurred without any negligence on the part of SPLISH SPLASH. "Mere speculation as to the cause of the [accident], where there can be many causes, is fatal to a cause of action". Manning v 6638 18th Avenue Realty Corp., 28 AD3d 434, 814 NYS2d 178 (2nd Dept. 2006).

Additionally, the court finds that CHRISTOPHER assumed the risk inherent in riding the water slides at the SPLISH SPLASH amusement park. He testified that he knew SPLISH SPLASH was a park with "slides and other different water attractions" and that he had been at the park for several hours and had been on similar rides earlier in the day. The Court concludes that the infant plaintiff was aware of the risk of injury when he voluntarily chose to ride down the slide and he was old enough to read the warning signs and instructions for the proper use of the slide and that he assumed the risk. No evidence has been presented that the alleged dangerous condition was concealed or that the slide presented an unreasonably increased risk. (Leslie v Splish Splash, supra ). Accordingly, it is hereby

ORDERED, that SPLISH SPLASH's motion for summary judgment is granted and the action is dismissed.

All further requested relief not specifically granted is denied.

This constitutes the decision and order of the Court.

Dated: September 17, 2007

_________________________

WILLIAM R. LaMARCA, J.S.C.

TO:

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