In DiVetri v. ABM Janitorial Serv., Inc., a porter working for an outside contractor providing cleaning services was using a hose to clean the sidewalk near the building entrance.  At the same time, plaintiff was arriving at work in the same building.  As plaintiff entered the building, she noticed her toes were wet from the water on the sidewalk but thought nothing of it.  She walked through the lobby towards the elevators, and after several steps, she slipped and fell on the marble floor causing injuries.

The First Department held that issues of fact existed as to whether defendants created a dangerous condition by using a hose during the course of cleaning the sidewalk without taking any precautions to keep water from being tracked onto the marble floor.  The property owners were required to use reasonable care in preventing slippery conditions from tracked-in water.  While reasonable care does not require a property owner to completely cover a lobby floor with mats to prevent injury from tracked-in water, it may require at least some mats.  Here, the court denied the property owner’s motion for summary judgment as there was a question of fact as to whether mats were placed in the lobby while the porter was cleaning the sidewalk.

The court also denied the cleaning contractor’s motion for summary judgment.  While the court held that the contractor does not generally owe a duty of care to the plaintiff, it does owe a duty to use reasonable care in not launching an instrumentality of harm.  Here, the porter’s actions of not putting down mats while hosing down the sidewalk may have launched an instrumentality of harm causing the plaintiff’s injuries.

The court rejected the open and obvious defense.  The court held that even if condition was open and obvious, that only relates to the duty to warn, and does not relate to the duty to maintain in a reasonably safe condition.

This case demonstrates that it is difficult to escape liability when no precautions are taken to prevent tracked-in water on a slippery floor.  The value of using weather inclement mats when any water is involved, not just when it is raining , is priceless.

Thanks to Anne Henry for her contribution to this post. If you have any questions, please email Paul at .