In Acunia v. New York City Department of Education, the plaintiff was an eighth grader who slipped and fell while playing basketball in the school gymnasium. The Department of Education moved for summary judgment which was granted by the Supreme Court in Bronx County.

The plaintiff appealed and the First Department affirmed finding that, although plaintiff does not bear the burden of identifying the precise cause of his slip and fall, mere speculation is inadequate. The court noted that, the fact that a floor is slippery by reason of its smoothness or polish, in the absence of any proof of the negligent application of wax or polish, does not give rise to a cause of action, or even an inference of negligence.

At his deposition, the plaintiff testified that the waxed floor was not wet, that he did not see any accumulation of wax on the floor and he never experienced any slipperiness prior to his accident. Based on this testimony, the court found that, absent proof of negligent application of wax or polish, the fact that floor was slippery because of its smoothness or polished state did not rise to a cause of action.

Thanks to Katusia Lundi for her contribution to this post.

http://www.courts.state.ny.us/reporter/3dseries/2009/2009_09537.htm