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Water Tracked In from Sidewalk Cleaning Raised Question of Fact About Creation of a Dangerous Condition in a Slip and Fall Case—Open and Obvious Condition Relieves Owner of Duty to Warn But Not Duty to Keep Premises Safe

The First Department determined there were questions of fact about whether the independent contractor which cleaned the sidewalks adjacent to defendants’ office building created the dangerous condition.  The sidewalks were cleaned by hosing them down.  It was alleged that water tracked in from the sidewalks created a slippery condition, causing plaintiff’s fall.  The court noted that an open and obvious condition relieves the owner of a duty to warn, but does not the duty to maintain the premises in a reasonably safe condition:

In this case a jury could reasonably conclude that the defendants created a dangerous condition in the course of cleaning the sidewalk by hosing down the perimeter of the building without taking precautions to keep water from being tracked onto the marble lobby floor. Slippery conditions created by defendants in the course of cleaning a premises can give rise to liability … . Tracked-in water that creates a slippery floor can be a dangerous condition … . While reasonable care does not require an owner to completely cover a lobby floor with mats to prevent injury from tracked-in water …, it may require the placement of at least some mats … . Since there is evidence supporting a conclusion that there were no mats on the floor near the entrance, there is an issue for the jury concerning whether the defendants exercised reasonable care, including whether they took reasonable precautions against foreseeable risks of an accident while cleaning the sidewalk during a busy work morning.

Defendants’ contention that the water on the sidewalk was open and obvious does not warrant summary judgment dismissing the complaint. An open and obvious condition relieves the owner of a duty to warn about the danger, but not of the duty to maintain the premises in a reasonably safe condition … . DiVetri v ABM Janitorial Serv Inc, 2014 NY Slip Op 05494, 1st Dept 7-24-14

 

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Constructive Condition Precedent Properly Fashioned by Court

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