The opinion of the court was delivered by: VINCENT L. BRODERICK
VINCENT L. BRODERICK, U.S.D.J.
This diversity of citizenship case arises out of a "slip and fall" personal injury sustained by plaintiff. Plaintiff brings this action against ARA Services ("ARA"), a contractor hired by International Business Machines Corporation ("IBM"), plaintiff's employer, to clean and wax floors; ARA filed a third party complaint against IBM for indemnification or contribution.
Each party has moved for summary judgment under Fed.R.Civ.P. 56. I grant both ARA and IBM's motions. The plaintiff's motion is denied. The Clerk is directed to close this case.
The controlling facts are simple. The plaintiff was an employee of IBM at its Management Development Center in Armonk, New York. IBM contracted for ARA to provide both management and hospitality services, which included floor cleaning, at the Center.
On the evening of December 16, 1991 ARA stripped and rewaxed a tile floor in the building where plaintiff worked. On the morning of December 17, 1991 plaintiff went to see her supervisor, whose office was carpeted and adjacent to the area of hallway which had been waxed the night before by ARA. Immediately after plaintiff left the supervisor's office and stepped into the hallway, she slipped and fell, sustaining extensive injuries including a broken hip and wrist.
Plaintiff claims in this lawsuit that in waxing the hall floor, ARA employees also spattered wax on the carpeting in the offices adjacent to the hall, including the office of Mr. Lopez. Plaintiff does not claim that the waxed tiled floor directly caused her fall, but rather that while visiting the supervisor's office her shoe was coated with wet wax which had been spattered there the night before, and that this caused her to slip and sustain her injuries.
In this diversity suit, New York law is applicable; New York precedent holds that "the fact that a floor is slippery by reason of its smoothness or polish...does not give rise to a cause of action or...an inference of negligence." Swartz v. Rose, 40 A.D.2d 1028, 1028-1029, 338 N.Y.S.2d 961 (2d Dept 1972); see Galler v. Prudential Ins Co, 99 A.D.2d 720, 721, 472 N.Y.S.2d 334 (1st Dept 1984); Lowrey v. Cumberland Farms Inc., 162 A.D.2d 777, 778, 557 N.Y.S.2d 689 (3d Dept 1990); Gootman v. Village of Haverstraw, 200 A.D.2d 829, 606 N.Y.S.2d 411 (3d Dept 1994). For ARA or IBM to be liable there must be at least some evidence indicating that polish or wax was negligently applied or that there was improper maintenance of the floor. Swartz v. Rose, supra at 1028-1029; Galler v. Prudential Ins Co, supra at 721.
Under New York law, to prevail plaintiff must produce evidence which tends to show a dangerous condition and that a defendant either created the condition or had knowledge, actual or constructive, of its existence. Lowrey v. Cumberland Farms Inc., 162 A.D.2d 777, 778, 557 N.Y.S.2d 689 (3d Dept 1990); Paciocco v. Montgomery Ward, 163 A.D.2d 655, 656, 557 N.Y.S.2d 997 (3d Dept 1990).
Although plaintiff asserts that ARA negligently applied the wax to the floor by allowing it to spatter on the carpet of adjacent offices, and in doing so, caused her to fall, plaintiff offers no evidence to support this claim. Plaintiff presents no proof that any wax or solvent was actually present on the carpet or that wax was spattered. The only support for such a conclusion is that there was "discoloration" on the carpet and one co-worker stated there was a "waxy, greasy feeling." No analysis of the ...