50% FAULT SHOULD NOT HAVE BEEN APPORTIONED TO PLAINTIFF IN THIS WET-FLOOR SLIP AND FALL CASE; THE WATER ON THE FLOOR WAS NOT OPEN AND OBVIOUS AND THE WARNING SIGN WAS NOT VISIBLE (FOURTH DEPT).

The Fourth Department, modifying the Court of Claims, determined there was no basis for apportioning 50% liability to the plaintiff in this wet-floor slip and fail case. The water on the floor was not open and obvious and the warning sign was not visible. Therefore plaintiff was not at fault for walking briskly, looking forward and not using the mats on the floor:

… [P]eople are “bound to see what by the proper use of [their] senses [they] might have seen” and act accordingly … . Here, however, the evidence at trial established that the wet condition of the floor was not open and obvious … and that the sign warning of a wet floor was not readily observable to claimant as he exited the elevator and proceeded, in a group, toward the front door … . As a result, there was nothing that would have alerted claimant to any danger in walking briskly, looking forward, and walking on the bare floor instead of the available mats.

… [W]e remit the matter to the Court of Claims to direct the entry of judgment in favor of claimant in accordance with the apportionment of 100% liability to defendant. Smiley v State of New York, 2020 NY Slip Op 06635, Fourth Dept 11-13-20