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The Rogak Report: 26 Jan 2007 ** Premises Liability - Wet Floors **

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  • Lawrence Rogak
    NO SUMMARY JUDGMENT WHERE CHILD SLIPPED IN WET VESTIBULE AT SCHOOL ON RAINY DAY Carey v. Babylon Mem. Grade School, 2007 NY Slip Op 50103(U) (Supreme Court,
    Message 1 of 1 , Jan 26, 2007
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      Carey v. Babylon Mem. Grade School, 2007 NY Slip Op 50103(U) (Supreme
      Court, Suffolk County) (Mayer, J.)

      Plaintiffs alleged that on March 6, 2003, the sixth-grade infant
      plaintiff, Melissa Carey, was injured when she slipped and fell on
      a "negligently maintained wet floor" while she was entering the
      Babylon Memorial Grade School. In their motion for summary judgment
      the defendants essentially argued that they had no prior actual or
      constructive notice of the alleged defective condition, and that the
      plaintiffs' expert disclosure failed to raise a triable issue of fact
      regarding such alleged condition.

      Produced for deposition on behalf of the defendants were head
      custodian, Carlos Ponton, and his assistant, William DesJardin.
      Although Mr. Ponton was not working on the date of the accident, his
      duties were to be carried out by Mr. DesJardin in Mr. Ponton's
      absence. As head custodian, Mr. Ponton testified that he knew that
      during days of inclement weather the floor in the foyer area where
      the accident occurred would become wet because of the students
      walking into the building from outside. As a result, the area would
      need to be mopped. Mr. Ponton also testified that on days the weather
      was inclement and rainy, he was responsible for placing "wet floor"
      signs at every school entrance. Similarly, Mr. DesJardin, whose
      responsibilities included safety of the children, testified that
      during rainy or snowy days, he would be required to place wet floor
      makers in the wet areas. Mr. DesJardin further testified that when it
      rains, or even if it is just wet outside, he places wet floor signs
      in the entrance areas so that when the children step onto the floor
      they know it may be wet.

      The Court held, "It is undisputed that there was snow and rain on the
      ground outside the area on the day of the accident. According to the
      testimony of the infant plaintiff, however, there were no 'wet floor'
      signs in the area at the time her accident occurred. Based on this
      evidence, and the fact that Mr. Ponton was not at work on the date of
      the accident, questions of fact exist for jury determination as to
      whether or not the defendants' staff followed its own safety
      procedures by placing the wet floor signs in or about the entrance
      area on the date of this accident."

      "Questions of fact also exist concerning whether or not the
      defendants' policies and procedures were reasonable under the facts
      known to the defendants at the time of the plaintiff's accident. In
      this regard, Mr. DesJardin testified he was aware that the children
      congregate in the vestibule area where the accident occurred, and
      that they come through the subject entrance very quickly, walking
      fast and pushing to get into the building with their heavy packs on.
      He also testified that when the children enter the building, their
      first step is onto the tile floor where water is known to accumulate
      from the children's feet. Nevertheless, Mr. Ponton and Mr. DesJardin
      both testified that a mat is never placed between the doors in that
      vestibule area, nor is one ever placed immediately outside the doors.
      Furthermore, although both Mr. Ponton and Mr. DesJardin were aware of
      the accumulation of water, neither would mop the area until after
      school started, when the children were already in their classrooms.
      These issues raise questions of fact for determination by a jury
      regarding the reasonableness of the defendants' placement of mats (or
      lack of certain mats), regarding allowing children to congregate in
      the subject area, and regarding their mopping policies and

      "Summary judgment in favor of a defendant is not appropriate where
      there is proof that the area outside is wet and that the defendants
      were aware that the area inside might be wet (see, Kormusis v Jeffrey
      Gardens Apartment Corp., 31 AD3d 392, 817 NYS2d 655 [2d Dept 2006]).
      This is particularly true where, as here, there is proof that the
      defendants were aware that water was being tracked into the building
      and that the floor in area of the accident might be wet, as shown by
      the placement of floor mats in other areas of the building (id).
      Accordingly, based on the foregoing, summary judgment for the
      defendants is denied."

      Larry Rogak
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