Wade Clark Mulcahy LLP

In <em><a href="https://www.wcmlaw.com/wp-content/uploads/2021/07/Lopez-v.-1355-Morris-Ave-LLC-1.pdf">Lopez v. 1355 Morris Ave, LLC</a> </em>(1^st Dept. 2021), the First Department upheld a trial court’s decision to deny defendants’ motion for summary judgment. In some premises liability cases, a defendant can occasionally avoid liability if it shows that it warned the bystander of a dangerous condition, or that the bystander had knowledge of the dangerous condition prior to the accident. Here, however, plaintiff slipped and fell on a wet floor when defendants were mopping the floor at the time of the accident. Defendants moved for summary judgment arguing plaintiff knew that the floor was being mopped and knew the floor was wet prior thereto. The First Dept. in upholding denial of summary judgment, held defendants failed to establish that it cannot be held liable for the injuries plaintiff sustained because, even if they were relieved of their duty to warn her of a hazardous condition by the open and obvious nature of the wet floor, the defendants were not relieved of their duty to maintain the floor in reasonably safe condition. Moreover, an issue of fact existed because plaintiff testified that she saw the superintendent only cleaning the floor, not mopping it, and that she did not see the wet floor before she fell.  Whether or not she should have seen it would remain a triable issue of fact for a jury to determine. The First Dept. was also not convinced by defendant’s arguments that plaintiff was primarily at fault because she was not paying attention or holding the handrail when walking, because plaintiff did not need to show complete absence of her own comparative fault in order to defeat defendant’s motion for summary judgment on liability.

This case highlights the rigorous duty property owners are being held to keep premises free from dangerous conditions.  Of course, all floors must be mopped on occasion, and a wet floor invites liability in a slip and fall accident.  However, courts are making owners go further to floors safe from patron traffic with “reasonable means” perhaps such as blocking off the section of the wet floor.  Property owners would be prudent in using any available means possible to keep the public safe on their premises.

Thanks to Raymond Gonzalez for his contribution to this post. Should you have any questions, please feel free to contact <a href="mailto:tbracken@wcmlaw.com">Tom Bracken</a>.