Wet Floor Signs Not Enough to Avoid Liability for Slip-and-Fall

Where a school custodian had placed wet floor signs on a small area of one side of a hallway but mopped the entire hallway, the trial court’s finding that the school was liable to a teacher who slipped and fell outside her classroom was affirmed on appeal.

In Robertson v. Clarksville-Montgomery County School System, No. M2017-02492-COA-R3-CV (Tenn. Ct. App. June 28, 2018), plaintiff was a teacher at defendant school. Plaintiff filed suit after she injured herself when she left her classroom to attend a staff meeting and almost immediately slipped on the wet floor in the hall. According to plaintiff, there were two wet floor signs on the opposite side of the hallway in close proximity to one another, but she did not see them before falling. Plaintiff further asserted that even if she had seen them, she would have believed that they indicated that the area between the signs was wet, not the entire hallway.

At trial, two school custodians testified that there was liquid in the hallway near the lockers on the day of the injury, and that one of the workers placed two wet floor signs near the liquid and then mopped between the signs. This area was on the opposite side of the hallway from plaintiff’s classroom door. The worker then mopped the entire hallway, including the side by plaintiff’s door, but did not move the signs at all. One of the custodians testified that she knew plaintiff was in her classroom, but neither custodian warned plaintiff that the entire floor had been mopped.

After a bench trial, the trial court “found that the custodians did not place the wet-floor signs in such a way as to give [plaintiff] adequate warning” that the floor was wet from mopping, “particularly since the custodial staff knew that she was still in her classroom and had the opportunity to warn her orally but failed to do so.” The trial court found defendant 75% at fault, and assigned 25% of the fault to plaintiff “because she was negligent in failing to see the sign directly in front of her.” The Court of Appeals affirmed that defendant was liable, but reassessed defendant school 100% of the fault.

On appeal, the first issue was whether defendant school was immune from suit under the Governmental Tort Liability Act (GTLA). Pursuant to the GTLA, immunity is not removed when a government employee is performing a “discretionary function.” (Tenn. Code Ann. Section 29-20-205). Although “discretionary function” is not defined, courts have developed the planning-operational test to determine whether immunity should be removed. “Decisions that rise to the level of planning or policy-making are considered discretionary acts which do not give rise to tort liability[.]” (internal citation omitted). Act that are “merely operational,” on the other hand, “do not give rise to immunity.” (internal citation omitted).

The Court of Appeals ruled here that the trial court was correct in holding that the “decision of where to place the wet-floor signs was operational in nature,” and thus the school was not immune from suit. The Court ruled that “the failure of the custodians to warn [plaintiff] or place the wet-floor signs in the area around where [plaintiff] fell cannot be characterized as a planning decision reflecting a course of conduct by those in charge of formulating the policy.”

Next, the Court analyzed whether the trial court rightly determined that the “custodians acted negligently in causing [plaintiff’s] fall.” There was video evidence in this case, which the Court reviewed. Considering the evidence and testimony, the Court reasoned:

[Defendant] claims that the custodians’ conduct with respect to the placement of the wet-floor signs was reasonable under the circumstances… The evidence simply dos not support [this] contention. On the surveillance video, [one custodian] can be seen placing the two wet-floor signs around a relatively small area on the far left side of the hallway right in front of a row of lockers. He begins by mopping the area in between the signs, but then he mops the entire length of the hallway along the right and left sides. However, [the custodian] did not move the wet-floor signs to indicate that a much larger area had been mopped.

Based on this evidence and the lack of warning to plaintiff, the Court affirmed the finding that defendant was liable for negligence.

Finally, the Court reviewed the apportionment of 75% fault to defendant and 25% to plaintiff. The Court of Appeals found that plaintiff should not have been assigned any fault. The Court pointed out that the trial court found that the placement of the signs would not have alerted plaintiff to the wet floor, and thus plaintiff’s failure to see the sign did not contribute to her fall. Further, the Court noted that plaintiff was “not distracted, was walking normally,” and that she fell almost immediately upon leaving her classroom. The Court therefore reversed the apportionment of fault to plaintiff and ruled that defendant was 100% at fault.

Judge Gibson wrote a dissent in this case, where she agreed that the school was not immune under the GTLA, but was of the opinion that the custodians acted reasonably. She noted that two wet-floor signs were in the hallway and that the policy did “not require signs on every square foot of the hallway.” Further, she stated that if the school was at fault, plaintiff’s fault was still “more than fifty percent,” as she “did not act reasonably in failing to see a wet-floor sign directly across the hallway from her classroom door and another a few feet away.”

While it can be difficult to get an apportionment of fault reversed on appeal, this case shows that it is possible. Here, the plaintiff’s lawyer did a good job of presenting the testimony and video evidence in a way that best supported his client.