The Swimming Pool : Part 2

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Q: Last summer, I slipped and fell in the locker room of the pool at the County Park.  My son had slipped off a bench.  I went to grab him and fell against a corner of the bench, hitting my thigh.

When we got home, I called the County to complain.  I let them know that the benches are too high.  The lady said that she was filling out an accident report.

I am sure that an excessive amount of water had accumulated.  This must have caused a slick and slippery condition, and that is why I fell.

After some time, I experienced back and leg pains and even underwent surgery for removal of a herniated disc.  Now, I would like to sue.

A: Under New York General Municipal Law § 50-e, with limited exceptions, a person who contemplates suing a public corporation is required to serve a ‘notice of claim’ within ninety days after the claim arises.  Since you do not say that you filed a notice of claim, permit me to infer that you did not.

Under the statute, upon application, a court has discretion to extend the time to serve a notice of claim, generally by no more than a year.  In determining whether to grant an extension, the court must consider whether the public corporation nevertheless had “acquired actual knowledge of the essential facts constituting the claim” within the ninety days that you let pass.  The court should determine “whether the delay in serving the notice of claim substantially prejudiced the public corporation in maintaining its defense on the merits.”

When you called the County, on the first of the ninety days, apparently you emphasized the height of the benches, from a child’s perspective.  Your conversation is memorialized in an accident report.  This report is one of the first things your attorney will want to see.

However, if that is all you told the County, then the County will argue that you did not alert them to the excessive amount of water that you now contend had caused your fall.  The County could not send a photographer before the water would have dried up – to photograph what the County believes was a dry-enough floor.  The County will say that it was substantially prejudiced in maintaining its defense.

In between an imperfect accident report and the lengthy delay in initiating court proceedings, your attorney will have a challenge.  But lawyers, like all of us, surmount challenges every day.  Good luck.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

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