THERE WAS A QUESTION OF FACT WHETHER THE DEFENDANT DEPARTMENT STORE SHOULD HAVE BEEN AWARE THE PAINT USED ON THE PARKING LOT SURFACE BECAME SLIPPERY WHEN WET AND WAS NOT APPROPRIATE FOR PEDESTRIAN-TRAFFIC AREAS (SECOND DEPT). ​

The Second Department, reversing Supreme Court in this slip and fall case, determined there was a question of fact whether the department store, Costco, should have been aware that paint used in its parking lot was slippery when wet:

“A defendant may not be held liable for the application of ‘wax, polish, or paint to a floor . . . unless the defendant had actual, constructive, or imputed knowledge’ that the product could render the floor dangerously slippery” … . Here, Costco established, prima facie, that it did not have actual, constructive, or imputed knowledge that the subject paint could render the walkway slippery … .

In opposition, however, the plaintiff raised a triable issue of fact … . The plaintiff relied on, among other things, an “application bulletin” for the traffic marking paint used by Appell [the company hired by Costco], which was annexed to the expert report submitted by Appell … . The application bulletin acknowledges the inherent danger present when painted surfaces become wet, and explicitly states that the paint “should not be used to paint large areas subject to pedestrian traffic.” Considering the size of the painted area outside of the store entrance, there was a triable issue of fact as to whether Costco should have known that the product could render the parking lot slippery. Westbay v Costco Wholesale Corp., 2021 NY Slip Op 07023, Second Dept 12-15-21