New York in winter can be dangerous for pedestrians. Although property owners in many New York cities have a duty to clear sidewalks abutting their property, New York law does not require them to remove accumulation during a “storm in progress,” and it gives them a reasonable amount of time after the storm stops to clean the sidewalk.
The Supreme Court in New York County recently considered whether the storm in progress rule would prevent recovery in Bagnoli v. 3GR/118 LLC. This case arose from a slip and fall on a sidewalk. The injured man and his wife filed suit against the owners of the property abutting the sidewalk. The defendants moved for summary judgment, arguing that they did not have a duty to remove the snow or ice on the sidewalk, pursuant to the storm in progress rule. The plaintiffs argued that there was not a storm in progress at the time of the fall, and even if there was a storm in progress, the fall was the result of the defendants’ failure to remove accumulation from an earlier storm.
A defendant can support a motion for summary judgment based on the storm in progress rule by submitting “certified climatological data” that shows there was an ongoing storm at the time of the accident. A plaintiff, however, can succeed in countering the motion by showing the accident resulted from accumulation caused by an earlier storm and that the defendants had actual or constructive notice of the snow or ice but failed to clear it.
The defendant submitted appropriate evidence showing there was a light freezing rain at the time of the fall. The court found that freezing rain was a storm in progress.
The plaintiff saw several ice patches of varying size at the time of his fall and described them as oval and white. The person with him at the time described them as oval with an “off-white to gray” color. The court found these descriptions raised issues of fact regarding whether the accumulation that caused the fall was from the ongoing storm or an earlier storm. The court noted that previous cases have held that a plaintiff’s statement that the ice was dark and dirty was sufficient to raise issues of fact regarding whether the ice had been there long enough that the defendant should have discovered and removed it.
The plaintiff’s expert stated that the precipitation was so light that it would not require an umbrella and that it did not create visible or appreciable ice on the ground. The plaintiff’s expert stated that there had been a snow storm three days before the fall that left several inches of snow on the ground, but there had not been any snowfall in the following two days.
The court found that, although the defendant met its initial burden to show prima facie entitlement to summary judgment, the plaintiffs successfully raised triable issues of fact regarding which “storm” caused the accumulation the plaintiff slipped upon and whether the fall was the result of the defendants’ negligence. The court denied the defendants’ motion for summary judgment.
Our New York slip-and-fall accident attorney knows the importance of obtaining appropriate expert opinions in cases involving snow or ice. Although, as the court noted, testimony that the snow or ice looked dirty or old may be sufficient to defeat a motion for summary judgment, expert opinions, such as those provided by the plaintiff here, can help show that the storm in progress was unlikely to have caused the accumulation in question.
The Law Offices of Nicholas Rose, PLLC offers free consultations. Call 1-877-313-7673.
Bagnoli v. 3GR/118 LLC, July 8, 2016, New York Supreme Court, New York County
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