The Rogak Report: 26 Jan 2007 ** Premises Liability - Wet Floors **
- NO SUMMARY JUDGMENT WHERE CHILD SLIPPED IN WET VESTIBULE AT SCHOOL ON
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."