Macri v Fluor Enterprises, Inc.
Categories
Attorneys and Parties
Brief Summary
Premises liability and contractor negligence arising from a slip-and-fall on a commercial loading dock after installation of a floor coating system.
The Supreme Court, Westchester County, granted summary judgment to EMBE Home Solutions, Inc., also known as Certa Pro Painters, International Business Machines Corporation (IBM), Fluor Enterprises, Inc., and Fluor Corporation, dismissing the complaint against all of them.
The Appellate Division reversed the dismissal as to Certa Pro, IBM, and Fluor Enterprises, but left intact the dismissal as to Fluor Corporation.
Although the defendants made prima facie showings, the plaintiff raised triable issues of fact through expert affidavits that Certa Pro may have negligently applied the flooring system and that IBM and Fluor Enterprises may have created a dangerous condition by directing installation of two visually indistinguishable walking surfaces with different slip resistance.
Background
The plaintiff alleged that he was injured in October 2014 when he slipped and fell on a loading dock at a facility owned by IBM and operated by Fluor Enterprises, Inc., a subsidiary of Fluor Corporation. One month earlier, EMBE Home Solutions, Inc., also known as Certa Pro Painters, had installed a new Citadel floor finishing system on the loading dock. At IBM's direction, additional nonslip material was applied only in one area primarily used by IBM's chief executive officer. The plaintiff allegedly fell in a transition area between the treated and untreated portions of the dock and claimed the defendants failed to maintain the floor in a reasonably safe condition and that Certa Pro negligently created the hazard.
Lower Court Decision
The lower court granted summary judgment to all moving defendants and dismissed the complaint insofar as asserted against them.
Appellate Division Reversal
The Appellate Division modified the order by denying summary judgment to Certa Pro, IBM, and Fluor Enterprises. The court held that, under Espinal v Melville Snow Contrs., a contractor may owe a duty to a noncontracting third party if it launches a force or instrument of harm. Certa Pro initially showed that it did not negligently apply the floor system and lacked actual, constructive, or imputed knowledge that the product would make the floor dangerously slippery. IBM and Fluor Enterprises initially showed they did not know the Citadel system was or might be dangerously slippery and were unaware of prior similar accidents. But the plaintiff's experts raised factual issues by relying on Citadel training materials and opining that Certa Pro failed to properly apply nonslip aggregate, failed to test slip resistance after installation, and created an unsafe condition by installing two different walking surfaces that looked the same without a visual warning. Those same facts raised a triable issue as to whether IBM and Fluor Enterprises created the dangerous condition by directing that configuration. The court did not disturb dismissal as to Fluor Corporation, and the plaintiff's argument that Fluor Corporation exercised dominion and control over Fluor Enterprises was rejected as unpreserved because it was raised for the first time on appeal. The cross-appeal was deemed dismissed pursuant to 22 NYCRR 1250.10(a) [rule permitting dismissal or deemed dismissal of certain appeals for procedural default].
Legal Significance
The decision reinforces that a contractor's contractual role alone does not create tort liability to a third party, but liability may exist where the contractor allegedly launches a force or instrument of harm through negligent work. It also confirms that in slip-and-fall cases involving wax, polish, or paint-like floor coatings, a defendant may avoid liability absent proof it knew or should have known the product could create dangerous slipperiness; however, expert proof regarding improper application, lack of testing, and creation of visually indistinguishable surfaces with different traction can defeat summary judgment. The ruling further recognizes potential liability for an owner and operator that direct installation choices creating a hazardous transition area.
Summary judgment is inappropriate in a floor-slip case where expert evidence supports that the contractor may have improperly installed the surface and that the owner or operator may have created a hazardous, visually indistinguishable transition between surfaces with different slip resistance.