Visually Indistinct “Two-Surface” Floor Installations and Slip-Resistance Failures Create Triable Negligence Issues for Both Contractors and Premises Operators

1. Introduction

Macri v Fluor Enters., Inc. (2026 NY Slip Op 05301 [2d Dept Sept. 16, 2026]) arises from a slip-and-fall on a loading dock at an IBM-owned facility operated by Fluor Enterprises, Inc. The plaintiff alleged he was injured in October 2014 after slipping in a transition zone between (i) an area treated with added nonslip material and (ii) an untreated area that appeared similar.

The flooring system was installed about a month earlier by EMBE Home Solutions, Inc., also known as Certa Pro Painters (“Certa Pro”), using a Citadel Floor Finishing Systems product marketed as meeting minimum friction requirements for public floors. Critically, at IBM’s direction, additional nonslip material was applied only in a limited area described as primarily used by IBM’s chief executive officer.

The case centered on two recurring tort questions in premises/contractor litigation:

  • Contractor duty to a noncontracting third party (the plaintiff), particularly under the “launching a force or instrument of harm” doctrine.
  • Owner/operator liability absent prior notice, where the owner/operator allegedly created the hazard by directing a visually indistinguishable “two-surface” walking area without warnings.

2. Summary of the Opinion

The Appellate Division, Second Department modified the Supreme Court’s order. It held that summary judgment should not have been granted to:

  • Certa Pro (contractor), because plaintiff’s expert evidence raised triable issues that Certa Pro negligently applied the nonslip aggregate, failed to perform post-installation slip-resistance testing, and created an unsafe “two different types of walking surfaces” condition without a visual warning.
  • IBM (owner) and Fluor Enterprises (operator), because plaintiff raised a triable issue that they created the dangerous condition by directing installation of two walking surfaces that were not visually distinct.

The dismissal in favor of Fluor Corporation (the parent) remained undisturbed on appeal; the plaintiff’s argument about parent control was deemed unpreserved because it was raised for the first time on appeal.

3. Analysis

A. Precedents Cited

1) Contractor duty to third parties: Espinal and the “launch” exception

The court framed duty as the “threshold question” by citing Espinal v Melville Snow Contrs., 98 NY2d 136, 138, and reiterated Espinal’s core rule: “a contractual obligation, standing alone, will not give rise to tort liability in favor of a third party” (98 NY2d at 140). The decision then focused on the key Espinal exception relevant here: a contractor may owe a duty where it “launches a force or instrument of harm” through negligent performance.

The Second Department supported that application with Bruce v Edgewater Indus. Park, LLC, 169 AD3d 753, and Jackson v Bethel A.M.E. Church, 192 AD3d 868, emphasizing the contractor’s summary judgment burden: to eliminate material fact issues and establish conclusively that it did not negligently create the dangerous condition complained of. In practical terms, once a plaintiff presents competent evidence suggesting the contractor’s work itself introduced or amplified the hazard, summary judgment becomes difficult.

2) “Wax/polish/paint” slip cases: knowledge and negligent application

For claims tied to floor coatings, the opinion relied on a line of cases holding that liability does not arise merely because a floor is shiny or slippery; it hinges on negligent application or knowledge that the product could render the floor dangerously slippery:

  • Faiella v Oradell Constr. Co., Inc., 171 AD3d 1013 (quoting Walsh v Super Value, Inc., 76 AD3d 371): a defendant is not liable for application of “wax, polish, or paint” absent “actual, constructive, or imputed knowledge” that it could make the floor dangerously slippery.
  • Union v Excel Commercial Maintenance, 185 AD3d 869: reinforces that without evidence of negligent application or relevant knowledge, slip claims based on coatings fail.
  • Khaimova v Osnat Corp., 21 AD3d 401, and Kapoor v Randlett, 144 AD3d 984: “mere fact” of a smooth shiny/slippery floor does not support negligence or an inference of negligence.
  • Hernandez v BP Am., Inc., 123 AD3d 1095: used here to support the point that, on the initial showing, absence of knowledge evidence can defeat coating-based liability.

Importantly, these cases did not end the inquiry in Macri. They provided Certa Pro with its prima facie path to summary judgment—yet the plaintiff’s expert proof (discussed below) created triable issues as to negligent application/testing and hazardous design/transition, shifting the outcome.

3) Visually indistinct conditions and expert-supported hazard theories

The court cited Westbay v Costco Wholesale Corp., 200 AD3d 935, for the proposition that expert evidence can raise triable issues regarding the safety of flooring conditions and transitions. Here, plaintiff’s experts relied on Citadel training materials to argue that the installation created a deceptive hazard: two different traction zones that looked the same, with no visual cue to warn pedestrians of the transition.

4) Preservation on appeal

The opinion cited Dolores v Grandpa's Bus Co., Inc., 189 AD3d 1539, to reject plaintiff’s argument (raised for the first time on appeal) that Fluor Corporation failed to establish it did not exercise dominion and control over Fluor Enterprises. The citation underscores a routine but powerful appellate rule: arguments not raised below are generally not considered.

B. Legal Reasoning

1) Certa Pro: summary judgment defeated by evidence of negligent performance and a created hazard

Certa Pro initially satisfied the contractor-friendly framework: it showed it did not negligently apply the system and lacked knowledge that the Citadel product could render the floor dangerously slippery. Under Walsh v Super Value, Inc. and related cases, that would normally support dismissal.

The plaintiff, however, raised triable issues through expert affidavits alleging multiple specific failures:

  • Improper application of nonslip aggregate (suggesting defective workmanship rather than mere slipperiness).
  • Failure to test slip resistance after installation (an omission implying the hazard could have been detected and addressed).
  • Creation of a deceptive transition: two different walking surfaces “which appeared identical,” with no “visual warning” separating them.

Those allegations, if credited by a factfinder, fit the Espinal v Melville Snow Contrs. “launches a force or instrument of harm” exception: the contractor’s work may have created the hazardous condition rather than merely failing to protect against a preexisting one. That is why the Second Department held summary judgment should have been denied as to Certa Pro.

2) IBM and Fluor Enterprises: no prior notice required where the defendant may have “created” the condition

IBM and Fluor Enterprises established a classic “no notice” defense: they did not know and had no reason to know the Citadel system was dangerously slippery and had no knowledge of similar prior accidents. The court acknowledged that prima facie showing under Walsh v Super Value, Inc. (76 AD3d at 376-377).

The plaintiff nevertheless avoided dismissal by raising a different theory—creation of a hazard—namely that IBM and Fluor Enterprises directed installation of two different walking surfaces on the same dock that were not visually distinct. The court held that this created a triable issue under Walsh v Super Value, Inc. (76 AD3d at 377-378): even without notice of slipperiness, a defendant can face liability if it affirmatively created the dangerous condition.

3) Fluor Corporation: dismissal preserved by lack of appellate preservation

The plaintiff attempted to revive claims against the parent company by arguing on appeal that Fluor Corporation failed to show it did not control the subsidiary’s operations. The court did not reach the merits, holding the contention unpreserved under Dolores v Grandpa's Bus Co., Inc.

C. Impact

  • “Two-surface” transitions become a focal hazard theory. The decision highlights litigation risk when a walking area includes adjacent surfaces with materially different traction characteristics but no visual delineation (striping, signage, texture contrast, or other cues). Plaintiffs may frame such designs as deceptive rather than merely slippery.
  • Contractors face exposure despite “product meets standards” marketing. Even if a product is marketed as meeting minimum friction requirements, contractors may still face triable issues based on application methods, aggregate placement, and post-installation testing.
  • Owners/operators cannot rely solely on “no prior accidents” where they directed the configuration. The case reinforces that lack of notice is not dispositive if the plaintiff can show the defendant created the dangerous condition—here, by directing selective nonslip treatment that produced an indistinguishable transition zone.
  • Appellate preservation remains outcome-determinative. Arguments about parent-subsidiary “dominion and control” must be raised in the trial court to be usable on appeal.

4. Complex Concepts Simplified

  • Summary judgment: A pretrial ruling granted only when there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law. Here, expert evidence created disputes requiring a jury.
  • Duty of care: A legal obligation to act reasonably to prevent foreseeable harm. Without duty, there is no negligence claim.
  • Espinal rule (contractors and third parties): A contractor usually is not liable in tort to people who are not parties to the contract—but may be liable if its work “launches a force or instrument of harm,” i.e., if negligent performance creates or worsens a dangerous condition.
  • Actual/constructive/imputed knowledge:
    • Actual: the defendant actually knew.
    • Constructive: the defendant should have known (condition visible/apparent and existed long enough).
    • Imputed: knowledge attributed by law (e.g., through an agent or circumstances).
  • Created condition vs notice: If a defendant created the dangerous condition, a plaintiff may not need to prove the defendant had notice of it—the creation itself can supply the basis for liability.
  • Preservation: An appellate court generally will not consider arguments not raised in the trial court.

5. Conclusion

Macri v Fluor Enters., Inc. underscores that slip-and-fall liability can turn less on whether a floor product was “supposed” to be slip-resistant and more on how it was applied, whether it was tested, and whether the overall design created a deceptive transition between traction zones. The decision also illustrates that owners/operators may face trial even without prior notice when evidence suggests they directed the hazardous configuration. Finally, it serves as a reminder that appellate arguments—such as parent-company control theories—must be preserved in the trial court to be heard.