In Westbay v Costco Wholesale Corp., the court decided a slippery issue.

Having alleged personal injuries after falling in the parking lot of a store owned by the defendant Costco Wholesale Corporation, the plaintiff, Dennis J. Westbay, asserted that he slipped on a painted portion of the rain-splattered asphalt 20 feet from Costco’s entrance.

Costco then began a third-party action for contractual and common-law indemnification against Appell Striping and Sealcoating, Inc.---the company that had painted and re-striped a portion of the store's parking lot two months prior to the plaintiff's accident. Appell moved for summary judgment dismissing the third-party complaint and Costco subsequently initiated a cross-motion to dismiss plaintiff’s complaint.

In New York, "a defendant may not be held liable for the application of `wax, polish, or paint to a floor . . . unless the defendant had actual, constructive, or imputed knowledge' that the product could render the floor dangerously slippery."

While the court found that Costco established that it did not have actual, constructive, or imputed knowledge that the subject paint could render the walkway slippery, the court noted that plaintiff cited Appell’s "application bulletin," which acknowledges the inherent danger present when painted surfaces become wet, and explicitly states that the paint "should not be used to paint large areas subject to pedestrian traffic." As a result, the court found that given the size of the painted area outside the store’s entrance, there was indeed a triable issue of fact as to whether Costco should have known that the product could render the parking lot slippery.

Accordingly, the Appellate Division, Second Department, reversed the order granting Costco’s cross-motion for summary judgment dismissing the plaintiff’s complaint.