Waxing Litigious

The New York Appellate Division for the First Judicial Department has held that a high society slip-and-fall case has enough evidence to move forward

Plaintiff [Comtesse Suzanne de Paris], a long-time member of defendant, Women’s National Republican Club, arrived at an event at the club between 5:00 and 5:30 p.m on September 7, 2011. She would go to the club maybe twice per week. Although this was the beginning of cocktail hour, plaintiff, who walked with a cane, was “not a drinker” and had only a “sip” of wine. Sometime between 7:30 and 8:00 p.m., she went into the restroom. According to plaintiff, the floor was made of “old marble.” When she took her first step with her right foot, and with her cane on the floor, she fell…

The [lower] court found that defendant made a prima facie showing that it did not create the hazardous condition, through the testimony of its employees that it never waxed the floor of the bathroom where plaintiff fell. The court rejected plaintiff’s assertion that her description of the floor as “over waxed” gave rise to an inference that defendant created the defect. The court also found plaintiff’s testimony, that she saw and felt the wax, to be “mere speculation” and insufficient to constitute evidence that the floor was waxed. The court also found that, even if plaintiff established the presence of wax, there was no evidence that defendant was responsible for its presence on the floor, and there was no evidence of how long it had existed, to raise an issue of fact as to constructive notice. With regard to plaintiff’s assertion that defendant created the defect, and so notice was irrelevant, the court again noted that plaintiff’s assertion that she slipped on wax was “pure speculation and based on her belief that the defendant waxes the floor in the ladies room.” Thus, given that the only evidence here regarding defendant’s negligence was speculation, the court granted defendant’s motion for summary judgment dismissing the complaint. We now reverse…

Here, there is a triable issue of fact as to whether there was a slippery substance on the bathroom floor that caused plaintiff to fall notwithstanding defendant’s assertion that it never used wax in that particular bathroom. Contrary to the motion court’s findings, plaintiff’s proof was not speculative and was sufficient to defeat the motion, because she set forth a specific reason for the slippery condition on the floor, namely a build-up of wax (see Galler v Prudential Ins. Co. of Am., 63 NY2d 637 [1984]; Gracchi v Italiano, 290 AD2d 484 [2d Dept 2002]; Baisley v Rose, 35 AD2d 841 [2d Dept 1970]). Indeed, as noted above, she “saw a big line, the dent of my shoe in the wax all the way that I fell,” suggesting that her shoe gouged out some of the waxy substance where she fell. This was more than just leaving a streak (see Galler v Prudential Ins. Co. of Am., 99 AD2d 720 [1st Dept 1984], affd on different grounds 63 NY2d [*2]637 [1984] [insufficient evidence of negligent waxing of floors, where plaintiff’s shoe made a streak on floor near where she fell]), which would happen regardless of the condition of the floor. Villa v Property Resources Corp. (137 AD3d 454 [1st Dept 2016]), recently decided by this Court, is also not dispositive. There, plaintiff merely felt a wetness on her pants and hands that smelled like wax or ammonia, while here, plaintiff saw the dent of her shoe in the waxy substance (see also Aguilar v Transworld Maintenance Servs, 267 AD2d 85 [1st Dept 1999], lv denied 94 NY2d 762 [2000] [plaintiff’s claim that she felt wax was insufficient to defeat summary judgment]).

There is a dissent from Justice Andreas. 

The majority concludes that “plaintiff’s proof was not speculative and was sufficient to defeat the motion, because she set forth a specific reason for the slippery condition on the floor, namely a build-up of wax.” In reaching this conclusion, the majority finds that Villa (127 AD3d 454) and Aguilar (267 AD2d 85) are inapposite because here plaintiff asserts that she ” saw a big line, the dent of my shoe in the wax all the way that I fell,’ suggesting that her shoe gouged out some of the waxy substance where she fell.” However, plaintiff admits that she did not see any wax on the floor before she fell and did not check her shoe for wax after she fell. Moreover, she did not personally see the ladies’ room floor waxed that day or at any time before and there were no photographs, wet clothes, or witnesses that could corroborate her conclusory assertions. Nor did plaintiff have any knowledge of the products used to clean the floor (see Galler v Prudential Ins. Co. of Am., 63 NY2d 637 [1984], affg 99 AD2d 720 [1st Dept 1984] [“evidence insufficient to establish prima facie that what plaintiff slipped on was a wax residue” where plaintiff noticed a two foot streak on the floor where she fell and testified that, when she was leaving the hospital to which she had been taken after the accident, she saw a nurse scraping what looked like wax off of her shoe]).

Some background on the plaintiff

Comtesse Suzanne de Paris is a descendent of Charlemagne of the Imperial Providence of France (742-814). Charlemagne was the Holy Roman Emperor of France, Rome and Germany. Her noblesse oblige is inspiring, as she has dedicated her life to making people all over the world, of all walks of life, from housewives to world leaders, look and feel healthier and younger through flawless skin.

Comtesse Suzanne de Paris has been an international skin care teacher and consultant utilizing her unique therapeutic treatment techniques and inventions for the past 40 years. She has taught every client that has walked through her doors along with countless cosmetologists according to her world renowned skin care system.

(Mike Frisch)