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CONTRACTOR WHICH WAXED THE FLOOR WHERE PLAINTIFF ALLEGEDLY SLIPPED AND FELL DID NOT OWE PLAINTIFF A DUTY OF CARE BECAUSE IT WAS NOT DEMONSTRATED THE CONTRACTOR LAUNCHED AN INSTRUMENT OF HARM (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the contractor which waxed the floor where plaintiff allegedly slipped and fell did not owe a duty of care to the plaintiff because it was not demonstrated the contractor launched an instrument of harm (Espinal factor):

“Because a finding of negligence must be based on the breach of a duty, a threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party” (Espinal v Melville Snow Contrs., 98 NY2d 136, 138). Generally, a contractual obligation, standing alone, will not give rise to tort liability in favor of a third party … . “A contractor may be said to have assumed a duty of care and, thus, be potentially liable in tort, to third persons when the contracting party, in failing to exercise reasonable care in the performance of its duties, launches a force or instrument of harm” … . “Where such a duty is alleged, a defendant contractor moving for summary judgment has the burden of eliminating all material issues of fact, and establishing conclusively, that it did not launch a force or instrument of harm by negligently creating the dangerous or defective condition complained of” … .

“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” … . “In the absence of evidence of a negligent application of floor wax or polish, the mere fact that a smooth floor may be shiny or slippery does not support a cause of action to recover damages for negligence, nor does it give rise to an inference of negligence” … . Union v Excel Commercial Maintenance, 2020 NY Slip Op 03942, Second Dept 7-15-20

 

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