Rain, sleet, and snow are on the way, and with them come wet floors in stores, supermarkets, and restaurants. When someone slips on a wet floor, the store is the obvious place to look. A November 5, 2026 decision of the Appellate Division, First Department, is a reminder that the store may not be the only one responsible.
The Store: Did It Create the Hazard or Know About It?
A store does not guarantee that its floors will always be dry. A "defendant [is] not required to cover all of its floors with mats, nor to continuously mop up all moisture resulting from tracked-in rain." But it "may be held liable for an injury proximately caused by a dangerous condition created by water, snow, or ice tracked into a building if it either created the hazardous condition or had actual or constructive notice of the condition and a reasonable time to undertake remedial action" (King v Damiano Corp. of Canarsie, 242 AD3d 969 [2d Dept 2025]).
"Constructive notice" means the store should have known. In the Court of Appeals' words, "a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it" (Gordon v American Museum of Natural History, 67 NY2d 836 [1986]). Our post on slip-and-fall injuries on commercial property covers the basics.
The Landlord: Generally Out, With Exceptions
Many stores and restaurants rent their space from the building's owner. A landlord that has leased the space and turned over control to the tenant is called an "out-of-possession landlord." Such a landlord "is generally not liable for negligence based on the condition of the demised premises 'unless [it] is either contractually obligated to make repairs and/or maintain the premises or has a contractual right to reenter, inspect and make needed repairs at the tenant's expense and liability is based on a significant structural or design defect that is contrary to a specific statutory safety provision'" (De Paz v 4221 Broadway Owner LLC, 213 AD3d 551 [1st Dept 2023]).
In plain words, the landlord may stay in the case if the lease made it responsible for repairs, or if it kept a right to come in and make repairs and the problem is a serious structural or design defect that breaks a specific safety law. Our Decision Day entry on Mella v Russian Samovar shows a landlord that was out of the case, and our entry on Cutter v Bayard's Ale House shows one that stayed in.
A Leaking Roof and a Puddle
In Love v Chang Li Supermarket, Inc. (2026 NY Slip Op 06527 [1st Dept Nov. 5, 2026]), a woman alleged that she slipped on a puddle in a supermarket. She testified that water was dripping from the ceiling when she fell, and that photographs of missing and water-stained ceiling tiles accurately showed the area above where she fell.
The lower court let the landlord out of the case. The First Department reversed. The landlord, "an out-of-possession landlord, failed to establish prima facie that it was not contractually obligated to repair or maintain the premises." The lease "imposed the duty to make structural repairs to the premises, including repairs to the roof," on the landlord, and the landlord "failed to establish that a leak in the roof did not create the puddle on which plaintiff slipped and fell." Evidence in the record also indicated that the landlord had repaired the roof for leaks before the accident.
Her own motion against the supermarket did not succeed, because "triable issues of fact exist as to whether Chang Li had actual or constructive notice of the puddle." The store's video did not prove that the manager saw the puddle, or that it had been there long enough to establish constructive notice as a matter of law. Her claim against the store remains for trial. Our Decision Day entry on Love has more on the decision.
"You Should Have Seen It"
Stores and landlords sometimes argue that a puddle was plain to see. But an "open and obvious" condition does not by itself end the case. Even if it relieves a defendant of the duty to warn, the defendant is "not relieved of its duty to maintain its premises in reasonably safe condition" (Lopez v 1355 Morris Ave, LLC, 195 AD3d 488 [1st Dept 2021]). In Love, whether she "was comparatively negligent for failing to see the puddle is for the jury to consider."
If an injured person is found partly at fault, "[t]he amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which caused the damages" (CPLR 1411(a)). The 2026 bar on recovery for a plaintiff who is more at fault applies to motor vehicle cases, not to falls in stores.
Why the Lease Matters
The lease between the landlord and the store may decide who had to fix what. In our experience, an injured shopper typically has no access to that lease before a lawsuit, and it may have to be obtained in the case. The landlord's repair history may matter as much as the store's cleaning records.
What to Do After a Fall in a Store or Restaurant
- Get medical care, and follow your doctor's advice.
- Look up as well as down. If you are able, photograph the floor, the ceiling, any drips, stains, or missing tiles, and any mats or warning signs.
- Report the fall to the manager, and write down the manager's name.
- Write down the names and phone numbers of witnesses.
- Ask in writing that the store keep its video. Video can be recorded over in a matter of weeks; see our Decision Day entry on Fernandez v Port Authority.
- Keep the shoes and clothes you were wearing, as they were.
- Talk to a lawyer early. If the property belongs to the City or another public entity, a Notice of Claim is generally due within 90 days (General Municipal Law ยง 50-e(1)(a)). In some circumstances, your time to act may be even shorter.
If you were hurt in a fall in a store, supermarket, or restaurant, contact The Eskesen Law Firm for a free consultation. Calls are answered live 24 hours a day, 7 days a week.
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