On December 20, 2008, plaintiff slipped and fell in the Dutchess County Jail. Consequently, plaintiff commenced a negligence action against the county jail and other county defendants. Specifically, plaintiff alleges that the "slippery shower surface" was a defective condition and the shower area should have had mats, grips, non-skid floor coverings and guard rails (see Moving Papers, Ex E ¶4). After joinder of issue, defendants now move for summary judgment dismissing the complaint.

In support of the motion, defendants submit, inter alia, plaintiff's deposition testimony (id. at Ex E). On the date of the incident, plaintiff was housed on Unit 23 in the Dutchess County [*2]Jail. The unit contained four showers which were cleaned nightly and during afternoon lock down. Each shower stall had a changing room which was separated by a 3 - 4 inch "lip" (id. at p 44). Plaintiff, wearing flip flops, chose the shower with the best water pressure. Before entering the shower stall, he noticed that it was "wet everywhere" (id. at p 47), but he did not mop the floor. Inmates were not required to clean the showers before or after use, but had the right to do so. Nor did plaintiff insure that the shower curtain was completely on the inside of the shower stall. "I never thought of taking the shower curtain and pulling it inside [the shower stall]." (id. at p 47). After showering for 10 to 15 minutes, plaintiff slipped upon exiting the shower stall. He grabbed the shower curtain but fell, landing on his back in between the shower stall and the changing area.

In opposition, plaintiff submits, inter alia, an affidavit in which he avers that there was "poor drainage" in the shower area and "there was often water all over the floor in the Unit 23 bathroom." In addition, non-skid strips were outside the doors of the shower stalls but not in the changing areas (see Szakolczay Affidavit in Opposition ¶2). Plaintiff claimed that on the day of the incident, "[t]here was a large puddle of water, at least 1/8 inch deep, covering the entire floor of the changing area" (id. at ¶4).

Defendants argue that plaintiff slipped on an open and obvious condition that is not inherently dangerous, as a matter of law. Therefore, contrary to plaintiff's contention, defendants do not need to demonstrate, as part of their initial burden of proof on the motion, that they had no notice, actual or constructive, of the wet floor.

It is well-settled that a landowner must act reasonably in maintaining property in a reasonably safe condition in view of all the circumstances (see Basso v Miller, 40 NY2d 233 [1976]). However, "there is no duty to protect or warn against an open and obvious condition which, as a matter of law, is not inherently dangerous [internal quotations and citations omitted]" (Errett v Great Neck Park Dist., 40 AD3d 1029, 1029 [2d Dep't 2007]; cf. Grgich v City of New York, 2 AD3d 680 [2d Dep't 2003]). Contrary to plaintiff's contention, this issue may be decided on summary judgment.^[FN1] Indeed, in Cupo v Karfunkel (1 AD3d 48, 53 [2d Dep't 2003]), the Appellate Court specifically stated: "We do not suggest that a court is precluded from granting summary judgment to a landowner on the ground that the condition complained of by the plaintiff was both open and obvious and, as a matter of law, was not inherently dangerous." Here, the water on the floor of a shower was both open and obvious, and not an inherently dangerous condition (see Jackson v State of New York, 51 AD3d 1251 [3d Dep't 2008]; Howe v County of Nassau, 13 Misc 3d 138[A] [App Term, 9th and 10th Jud. Dists. 2006]).

Moreover, where the facts demonstrate "that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is just as reasonable and probably that the injury was the result of one cause as the other, plaintiff cannot have a recovery, since he has failed to prove that the negligence of the defendant caused the injury" (Ingersoll v Liberty Bank of Buffalo, 278 NY 1, 7 [1938]; accord Gibson v The State of New York, 13 Misc 3d 1244[A] (Court of Claims 2004]). Here, viewing the facts as plaintiff presents [*3]them, it is just as likely that the water in the shower stall accumulated as a result of plaintiff not cleaning out the shower stall before he took a shower, not insuring that the shower curtain was fully inside the shower stall, and taking an excessively long shower. Moreover, water in a shower stall is an inherent condition which could be reasonably anticipated (see e.g. Maldonado v City of New York, 29 Misc 3d 1072 [Sup Ct Kings County 2010]).

Accordingly, defendants have met their initial burden on the motion. The burden then shifted to plaintiff to raise a triable issue of fact. However, plaintiff's self-serving affidavit, standing alone, is insufficient to raise a triable issue of fact as to the nature of the condition (see e.g. Doyaga v Teleeba, Inc., 35 AD3d 798 [2d Dep't 2006]; Davis v Brightside Fire Protection Inc., 275 AD2d 298 [2d Dep't 2000]).

Accordingly, defendants' motion for summary judgment is granted and the complaint is dismissed.

The Court read and considered the following documents upon this application:

PAGES NUMBERED

1.Notice of Motion.........................1-2

Affirmation-Meenagh.................1-11

Exhibits............................A-L

Memorandum of Law...................1-10

2.Affirmation in Opposition-Burke..........1-23

Exhibit.............................A

3.Reply Affirmation-Meenagh................1-7

The foregoing constitutes the amended decision and order of the Court.

Dated:Poughkeepsie, New York

August 12, 2013

ENTER

HON. JAMES D. PAGONES, A.J.S.C.