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IN THE CONTEXT OF A SLIP AND FALL, “FAILURE TO WARN” OF A DANGEROUS CONDITION AND “FAILURE TO MAINTAIN A PREMISES IN A REASONABLY SAFE CONDITION” ARE DISTINCT CAUSES OF ACTION AND A PLAINTIFF MAY PROCEED ON ONE OR BOTH THEORIES; IN THIS “NEGLIGENT MOPPING” “EXCESS WATER ON THE FLOOR” CASE, THE “FAILURE TO WARN” CAUSE OF ACTION WAS PROPERLY DISMISSED, BUT THE “FAILURE TO MAINTAIN THE PREMISES IN A REASONABLY SAFE CONDITION” CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT). ​

​The Fourth Department, reversing (modifying) Supreme Court in this slip and fall case, noted that a “failure to warn” of a dangerous condition, and a “failure to maintain a premises in a reasonably safe condition” are distinct causes of action and a plaintiff may proceed on one or both theories. Here the “failure to warn” cause of action was properly dismissed. But the “failure to maintain the premises in a reasonably safe condition” cause of action should not have been dismissed. It was alleged mopping was negligently done leaving excess water on the floor:

… [D]efendants had the initial burden on their motion of establishing that they did not create the allegedly dangerous condition and that they did not have actual or constructive notice thereof … . We conclude that defendants failed to meet that burden inasmuch as they failed to establish that they did not create the allegedly dangerous condition by negligently mopping the area and leaving excess water on the floor … * * * Failure to warn of an alleged hazard is a separate and distinct theory of liability from the failure to maintain premises in a reasonably safe condition, and a plaintiff may proceed on one or both of those theories … . Brennan v Kandon, LLC, 2026 NY Slip Op 04685, Fourth Dept 7-24-26

Practice Point: In the context of a slip and fall, “failure to warn” and “failure to maintain the premises in a reasonably safe condition” are distinct causes of action and a plaintiff may proceed on one or both.​

 

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