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Caution: Slippery When Wet
By Jae H. Cho
Visualize the following scenario: a wet floor in a building, wherein a person is walking, oblivious to the
wet floor. She slips and falls, suffering injuries requiring medical attention. Is the property owner legally
obliged to pay for her injuries? If your answer is “yes,” you view the scenario through the eyes of a
customer. If your answer is “no,” your view is more like that of a property owner. However, if your answer
is “it depends,” you are evaluating the scenario with the eyes of a lawyer. Whether the property owner is
legally obligated to pay for the injuries depends on whether the owner knew about the wet floor,
and more importantly, it depends on why the injured person was on the premises.
Duty of Property Owners
In New Jersey, a property owner has a duty to exercise reasonable care to guard against any dangerous
condition of which the owner knows, or should have discovered. Thus, when a floor is wet and the owner knows
about it but does nothing, the owner becomes liable to a person who is injured by a slip and fall as a result
of the wet floor. Conversely, if the owner did not know or should not have known about the condition, the
owner is not liable.
The situation, however, becomes problematic when the injured person is not a customer of the property owner,
but rather, an independent contractor of the owner, such as a janitor or security guard. Many property owners
find value in outsourcing certain maintenance or incidental work to independent contractors. Who is legally
responsible for a janitor’s injuries after he slips and falls while walking to a closet to put away supplies?
Similarly, who would be responsible for a security guard’s injuries resulting from a slip and fall while he
was attending to his rounds? The answer to these questions depends on the extent of their duties.
Duty to Independent Contractors
Recently in McEwan v. U.S., the Federal District Court of New Jersey analyzed and clarified New Jersey
law in regards to the imposition of liability on property owner for injuries sustained by an independent
contractor.
The McEwan plaintiff brought an action against the property owner for injuries sustained as a result
of a slip and fall. The plaintiff worked for a company that contracted with the property owner to undertake
maintenance duties including mopping up floors whenever they became wet. The property owner knew that the
floor frequently became wet or damp during the summer months and required repeated mopping. In one of those
summer months, the plaintiff was walking towards a closet to put away supplies when she slipped, fell, and
suffered injuries. The court analyzed New Jersey landowner cases and determined that negligence is determined
by the degree to which the landowner participated in, actively interfered with, or exercised control over
the manner or method of the work being performed at the time of the injury. The court articulated New Jersey
law: the landowner is generally not responsible for injuries sustained by an independent contractor’s
employees in course of his assigned duties because an independent contractor is hired to carry on activity
which by its very nature involves a peculiar or high risk of harm to the contractor’s employees.
Accordingly, after finding that the landowner did not participate in, actively interfere with or exercise
control over the manner or method of plaintiff ’s work, the duty to maintain the floor free from hazards
rested with the plaintiff and, regardless of the source of water, the landowner could not be liable.
It is interesting to note that despite the property owner’s knowledge of frequent wet floors, such knowledge
did not constitute constructive notice.
Janitors as Independent Contractors
A recent New Jersey state court appellate decision expressed a similar sentiment to the McEwan case.
There, an employee of a hospital slipped and fell in the lobby during the winter months. The property owner
conceded that the lobby floors frequently became wet from the snow and ice brought in by patients and
visitors. The employee brought an action against the cleaning company, an independent contractor of the
property owner, for negligence in maintaining the floors. The Appellate Division found that in order to
impose liability on the cleaning company, the company needed actual or constructive notice of the wet floors,
regardless of the source of water. Again, it is interesting to note that despite the cleaning company’s
knowledge of frequent wet floors, such knowledge did not constitute constructive notice.
Security Guards As Independent Contractors
Many property owners and businesses engage the services of security guards through the hiring of independent
contractors. In many cases, the duties of a security guard are contractual. Although New Jersey’s two
published cases finding property owners liable to security guards who slipped and fell in the course of their
duties, the distinguishing fact in those cases is that the property owners had actual notice of a
dangerous condition and failed to remedy it in a timely manner. But what about a case where the property
owner did not have notice of a dangerous condition and the security guard slipped and fell? The McEwan
case provides a strong sense that property owners will not be liable to an injured security guard who
slipped and fell in the course of her duties because such injuries are likely to result from the very hazards
she was hired to guard against.
Basically, the duties of a security guard are to report any potential problems or hazards and to prevent
theft, vandalism or trespassing. The security guard is the first line of defense for property owners in
detecting potential hazards. Hence, the security guard’s duties include maintaining a watchful eye for wet
floors and spills.
Liability to Independent Contractors
Of course, the property owner should bear in mind that she cannot participate in, actively interfere with,
or exercise control over the manner or method of the work being performed by the independent contractor at
the time of the injury. For example, the lending of equipment, such as a ladder, to an independent
contractor may subject the property owner to liability if the injury is somehow related to that equipment.
Property owners’ employees sent to assist the independent contractor may subject the property owner to
liability. And in the context of exercising control, the property owner cannot instruct the independent
contractor how to do her job.
Conclusion
Although a property owner may not be able to avoid a lawsuit from being filed against her for slip and fall
injuries, the property owner can increase her protection by entering into a wellarticulated contract with
the independent contractor that includes a strong indemnification clause and mandatory insurance coverage.
The selection of a competent independent contractor is also crucial. As the nuances of premise liability are
easily stumbled over and the legal verbiage of contracts can be slippery, Hill Wallack LLP’s
experience can effectively assist property owners from falling into the depths of premise liability.
Jae H Cho is an associate in the General Litigation,
Employment & Labor Laws and Trusts & Estates Practice Groups
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