Dr. William Marletta
Do We Really Need to Test for Slip Resistance?
The short answer is YES, absolutely!
This is why William Marletta Safety Consultants use the latest approved slip testing methods. Our equipment is calibrated and conforms to the established organizations of the American Society for Testing and Materials (ASTM) and the American National Standards Institute (ANSI) where possible.
Are purchasing state of the art BOT 3000-E and English XL slip testers costly? Is maintaining the equipment with required periodic calibration at the factory costly? Is testing time consuming? Is slip testing inconvenient at times when carrying heavy equipment to sites? You bet!
Real World Cases
But this equipment is necessary in many cases involving slip resistance. Why? Claiming that a surface is “slippery when wet” does not prove anything. Slip resistance testing measures the slip resistance of most floor surfaces—including surfaces that are wet or contaminated with other debris or liquids. With slip resistance testing, we can accurately measure the coefficient of friction to assess if a walking surface is slippery when wet or dry. The Scientific data we obtain from these tests are used to strengthen our arguments so that our evidence holds up in court.
The following case, William Friber, Plaintiff-Appellant-Respondent, v. The City of New York, Defendant-Respondent, LeSaga LLC, Defendant-Respondent-Appellant, shows the importance of slip resistant testing.
The Plaintiff fell on an exterior staircase during a rainstorm. According to the Defendant’s, “Mere wetness on a walking surface due to rain does not constitute a dangerous condition.” Had slip testing with a Bot 3000-E or English XL slip testing machine been done, this statement could have been contested. However, no testing was done and the Defendant’s motion for summary judgement was granted.
William Friberg, Plaintiff-Appellant-Respondent,
The City of New York, Defendant-Respondent, LeSaga LLC, Defendant-Respondent-Appellant.
Decolator Cohen & DiPrisco LLP, Garden City (Carolyn M. Canzoneri of counsel), for appellant-respondent.
Marshall Dennehey Warner Coleman & Goggin, P.C., New York (R. David Lane, Jr. of counsel), for respondent-appellant.
James E. Johnson, Corporation Counsel, New York (Eric Lee of counsel), for respondent.
Order, Supreme Court, New York County (Lyle E. Frank, J.), entered August 28, 2019, which granted the motions of defendants City of New York and LeSaga LLC for summary judgment dismissing the complaint and all cross claims as against them, unanimously affirmed, without costs.
Defendants established prima facie entitlement to judgment as a matter of law in this action where plaintiff was injured when, during the course of a rainstorm, he fell on a staircase outside of a building owned by LeSaga and occupied by the City. “Mere wetness on a walking surface due to rain does not constitute a dangerous condition” (Ceron v Yeshiva Univ., 126 AD3d 630, 632 [1st Dept 2015]).
Defendants also demonstrated their entitlement to summary judgment by submitting evidence that they did not have prior complaints about the steps or complaints about prior accidents (see Savio v Rose Flower Chinese Rest., Inc., 103 AD3d 575 [1st Dept 2013]; Chung v W. Hotel, 16 AD3d 356 [1st Dept 2005]). The City was not required to submit evidence demonstrating when it last inspected or cleaned the staircase, as plaintiff’s accident occurred during a rainstorm in progress (see Pippo v City of New York, 43 AD3d 303, 304 [1st Dept 2007]).
In response to defendants’ expert’s affidavit in which he opined that the steps complied with the Building Code and were not unsafe, plaintiff’s expert described the step on the staircase where plaintiff slipped as worn, concluding that it was dangerously slippery when wet. Because this conclusion is not supported by any empirical data obtained by scientific analysis, plaintiff fails to raise a triable issue of fact (see Silber v Sullivan Props., L.P., 182 AD3d 512, 513 [1st Dept 2020]; Clarke v Verizon N.Y., Inc., 138 AD3d 505, 506 [1st Dept 2016], lv denied 28 NY3d 906 ).
Plaintiff’s affidavit in which he stated that as he fell he tried to grab onto something but there was nothing there, failed to raise an issue of fact as to whether the lack of handrails caused his accident. The affidavit contradicted his testimony that he fell as a result of rainwater pooling on the steps, not because of the absence of a handrail.
(see Greco v Pisaniello, 139 AD3d 617, 618 [1st Dept 2016]; see also Mermelstein v East Winds Co., 136 AD3d 505 [1st Dept 2016]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: April 6, 2021
The lesson here is that the Plaintiff needed to perform valid slip testing to support his case. It is not sufficient that the expert concludes that a worn surface is slippery when wet. The Plaintiff’s expert provided no scientific data or testing to support his claims. This resulted in dismissal.
Next time you have a slip and fall case, be sure to test for slip resistance following national codes and standards. Looking for an expert witness who can help? Reach out to our certified safety professionals here.