Staff at a Chicago zoo had known “for years” that concrete floors were made slippery by dolphins throwing water at dolphin show spectators but did nothing to correct the problem, the attorney for a woman suing the zoo tells On Point.

“It's a known problem in the industry,” attorney Edward G. Proctor (Munday & Nathan, Chicago) said in his first public comments on Allecyn Edwards' controversial slip-and-fall lawsuit against the Chicago Zoological Society.

Edwards, 60, alleges that she slipped and fell in the spectator stands at the Brookfield Zoo's indoor dolphin arena in August 2008. According to Proctor, she was treated in the hospital for “multiple fractures.”

A wet and slippery condition caused by water from splashing dolphins might appear so “open and obvious” that Edwards has no legal leg to stand on. The “open and obvious” defense to premises liability claims applies when “both the condition and the risk are apparent to and would be appreciated by a reasonable person in the plaintiff's position exercising ordinary perception, intelligence, and judgment.”

But Proctor says the danger of slipping on the floors in the zoo's dolphin arena was caused by more than just water -- and the zoo's staff is liable for their "conscious disregard" of that danger.

“The conscious disregard comes from knowing how slippery these floors can get and how people have slipped and fallen, some with injuries,” he argues. One dolphin trainer, he says, told him he has seen dolphin show spectators slip and fall on a “daily basis.”

Edwards' complaint, which seeks at least $100,000 in damages, blames her fall only on the water thrown into the stands by the dolphins. The zoo staff “recklessly and wilfully trained and encouraged the dolphins to throw water at the spectators in the stands[,] making the floor wet and slippery,” it alleges.

Proctor -- who is planning to file an amended complaint -- says there was actually "all this other stuff being thrown onto the concrete [which] really makes it a slippery surface.”

“The dolphins are in salt water, which erodes the concrete surface,” he explains. “That erosion makes the surface slippery.” In addition, the water contains “dolphin waste products,” algae and polymers, contributing to the formation of a “black slime.”

Water parks, he notes, apply a traction agent called “gunnite” to concrete to prevent guests from slipping and the Brookfield Zoo should have taken similar precautions to make the dolphin show arena slip-resistant, such as applying epoxy to or putting “graded mats” on the floor.

In Buchaklian v. Lake County Family YMCA, 732 N.E.2d 596 (2000), an Illinois appeals court said “The law generally assumes that persons who encounter conditions such as fire, height, and bodies of water will take care to avoid any danger inherent in such conditions.” But it still ruled that a defect in a mat in the shower area of a locker room was not so obvious that a woman who tripped over it could not sue the property owner.

“We refuse to hold that invitees, as a matter of law, are required to look constantly downward,” the court found.

Proctor says Edwards was distracted as she left the arena with a crowd of people after the dolphin show and could not be expected to watch her every step. “It's certainly obvious that the animals are making everything wet ... but [the danger] is not so obvious when you're exiting in a herd,” he argues.

The reaction to the case has, predictably, been one of outrage, with one Chicago Tribune reader saying, “This is the kind of case that we need 'tort reform' for.” But Proctor's comments suggest the case is more nuanced than depicted in initial media reports and could come down to expert testimony about such matters as concrete erosion, slip resistance and algae accumulation.

The Brookfield Zoo earlier this year suspended dolphin shows until further notice to focus on the care and treatment of an ailing dolphin. The dolphin was euthanized in April but the shows have yet to resume.

By Matthew Heller
9/1/09