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March 3, 2015

Pardalis & Nohavicka Premises Liability Update: "Photogrammetry" Defeats Trip And Fall Claim Against Splish Splash Park, L.I.

Plaintiff filed a lawsuit in the Bronx 12 days after a trip and fall accident allegedly caused by a defect in a walkway at  Splish Splash, a Long Island amusement park. There was a disagreement as to the depth of the hole: plaintiff claimed that it was 2 to 2 and 1/2 inches in depth. Splish Splash filed a motion for summary judgment driven by their expert, a licensed professional engineer, whose background included the study of land surveying and photogrammetry, the latter being the process of determining dimensions and relationships of physical  objects from photographs. Based on the photographs provided by plaintiff, the defense expert determined that the defect could be no greater than 3/4 of an inch in depth. The court noted that, "The plethora of outdoor walks, subject to the insults of nature, seems vastly different from an indoor vestibule of a multiple dwelling, and a defect of the same size might, under all the circumstances, be actionable in latter but not in the former." The Bronx court dismissed the case noting that "with regard to the broken concrete, the photos show a modest crows' feet pattern of cracks that could well have resulted from the step of a heavy person."

The capstone of the decision was phrased by Justice Mark Friedlander as follows: "In the end, much depends on the photographs provided, which may sometimes stand irrefutable by even the wordiest brief."

The decision is Plaskett v Splish Splash at Adventureland, Inc. at
http://www.courts.state.ny.us/reporter/pdfs/2014/2014_33416.pdf

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