Saturday, February 23, 2008

Slip and Fall on Snow and Ice

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Original Post: 

I recently co-authored an article on Snow and Ice Litigation for the New York State Trial Lawyer's Association Journal, Bill of Particulars, with a fellow associate, Sarah Bernett, and my firm's managing partner. Since there is about nine inches of snow on the ground right now (Here's a News Story), I thought this might be a good opportunity to post the article here.

Snow And Ice Litigation In New York State

The air is crisp, people are festive, holiday sales abound, and you are trying to remember exactly when it began to get really cold last year. For a plaintiffs’ attorney, this means that it is time to prepare for an influx of snow and ice cases. Snow and ice plaintiffs tend to approach their prospective attorneys with three pieces of information: I fell, I was hurt, this was the location. If you are lucky, they may bring photographs. Establishing liability, however, requires much more. Snow and ice litigation follows the same analytical framework as ordinary negligence: duty, breach, causation and damages. Because issues involving snow and ice are frequently litigated, however, and because this area is often subject to regulation, snow and ice litigation has numerous unique issues. This article discusses three of the more problematic issues: (1) how to prove liability against a property owner for failure to remedy a dangerous snow and ice condition; (2) who can be named as a defendant other than the property owner; and (3) what unique substantive issues arise when the defendant is a municipality.


Property owners’ duty to remedy a dangerous snow and ice condition is limited to snow and ice of which they have notice and a reasonable time to correct. Dickerson v. Troy Housing Authority, 34 A.D.3d 1003, 1004-1005, 825 N.Y.S.2d 162, 164 (3d Dept. 2006). In most situations (unless notice is admitted or there is some evidence tending to show actual notice), plaintiffs prove their case by establishing constructive notice. Climatology data, particularly hourly charts of temperature and precipitation from sources such as the National Oceanic and Atmospheric Association, are often extremely important in demonstrating constructive notice. Other factors that can be used to demonstrate constructive notice include: size, thickness and location of the ice. Gonzalez v. American Oil Co., 42 A.D.3d 253, 836 N.Y.S.2d 611 (1st Dept. 2007) (large thick ice adjacent to front door to establishment). Testimony, consistent with climatological data, that the ice was left unremedied for a significant period of time prior to the accident will be sufficient to create a triable issue of fact. Rodriguez v. 326-338 E. 100th St. Partners, 40 A.D.3d 439, 836 N.Y.S.2d 172 (1st Dept. 2007). In contrast, testimony by a plaintiff that the icy condition on which he or she fell consisted of "black ice" that was not apparent upon a reasonable inspection has been found fatal to a plaintiff's claim. Robinson, et al. v. Trade Link America, et al., 833 N.Y.S.2d 243, 833 N.Y.S.2d 243 (2d Dept. 2007); Raju v. Cortlandt Town Center, 38 A.D.3d 874, 834 N.Y.S.2d 211 (2d Dept. 2007).

Under the storm in progress doctrine, also known as the ongoing storm defense, a land owner is not required to clear snow and ice until a reasonable time after the storm ceases. Solazzo, Jr., et al. v. New York City Transit Authority, et al., 6 N.Y.3d 734, 810 N.Y.S.2d 121 (2005). A temporary lull in storm activity does not trigger the property owner's duty to clear snow and ice, Thompson et al. v. Menands Holding, LLC, et al., 32 A.D.3d 622, 624, 820 N.Y.S.2d 172, 173 (3d Dept. 2006), however, concomitantly, trace precipitation alone is insufficient to trigger the storm in progress doctrine. Dancy v. New York City Housing Auth., 23 A.D.3d 512, 806 N.Y.S.2d 630 (2d Dept. 2005).

There is no state-wide bright-line rule for how long an icy condition must exist in order to constitute constructive notice. In New York City, Administrative Code 16-123 gives property owners four hours after a storm ceases within which to clear any dangerous snow or ice condition, and until 11:00 a.m. where the storm occurs overnight. See Prince v. N.Y. City Hous. Auth., 302 A.D.2d 285, 756 N.Y.S.2d 158 (1st Dept. 2003). The Third Department has held that "it is unreasonable to require a landlord to discover ice within two to three hours of its formation on a late weekend evening when there is no precipitation, especially when that ice is not visible to people who were walking upon it." Boucher v. Watervliet Shores Assoc., 24 A.D.3d 855, 804 N.Y.S.2d 511 (3d Dept. 2005). The Fourth Department, however, has allowed a case to go to a jury where ice formed from a sudden temperature drop that occurred approximately three hours prior to the plaintiff’s fall. Bullard v. Pfohl's Tavern, Inc., 11 A.D.3d 1026, 784 N.Y.S.2d 265 (4th Dept. 2004). It is important, therefore, to establish early in your evaluation of a potential case the precise amount of time that elapsed between the last snowfall or temperature fluctuation and your client’s accident.

An interesting twist in the storm in progress doctrine occurs when a plaintiff claims to have slipped on an old ice accumulation during or shortly after a more recent storm. In these circumstances, plaintiffs often argue that the ice they fell on was "dirty," and thus most likely left over from an earlier storm. See Cooke v. City of New York, 300 A.D.2d 338, 751 N.Y.S.2d 536 (2d Dept. 2002); Musso v. Macray Movers, 2006 NY Slip Op 7151, 822 N.Y.S.2d 305 (2d Dept. 2006) (summary judgment inappropriate where owner could not say that ice had not been on the ground for several days). In such situations, the outcome will depend on what evidence, such as photographs, testimony and climatology data, the plaintiff can offer to support their claim that they slipped on old ice. Compare Lerner v. Luna Park Hous. Corp., 19 A.D.3d 553, 797 N.Y.S.2d 126 (2d Dept. 2005) (triable issue of fact as to whether ice-patch existed before snow storm during which plaintiff was injured) with Small v. Coney Is. Site 4A-1 Houses, Inc., 28 A.D.3d 741, 814 N.Y.S.2d 240 (2d Dept. 2006) (where storm was in progress at the time the plaintiff fell, the plaintiff's testimony that he fell on old ice he had observed a day or so earlier was purely speculative).


In addition to the most obvious defendant, the property owner, it is important to realize that persons other than the property owner may be responsible for your client's injuries. The property owner's duties to correct dangerous snow and ice conditions often overlap with the duties of third-parties. The most obvious example is when a property owner is on notice, and thus under a duty to correct, a dangerous icy condition that a third party created or exacerbated. See Backiel v. Citibank, N.A., 299 A.D.2d 504, 751 N.Y.S.2d 492 (2d Dept. 2002). Third parties, generally a building management or maintenance company, may also adopt the owner's remedial duty where the contractor's obligations under its agreement with the building owner wholly displace the owner’s snow removal obligation. See Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 140-141, 746 N.Y.S.2d 120, 123 (2002) (delineating three scenarios where contractual obligations may give rise to tort liability) citing Restatement (Second) of Torts § 324A; cf. Mahaney v. Neuroscience Ctr., 28 A.D.3d 432, 814 N.Y.S.2d 175 (2d Dept. 2006). Property owners are often said to have a "nondelegable duty... to provide safe ingress and egress,” and thus are not relieved of liability by the fact that they delegated their snow removal obligations to an independent contractor. Olivieri, et al. v. GM Realty Company, LLC, 37 A.D.3d 569, 830 N.Y.S.2d 284 (2d Dept. 2007). There is some authority in the First Department, however, stating that a land-owner may fully delegate its snow removal responsibility to a tenant so as to obviate its potential liability. Feiler v. Greystone Bldg. Co., 302 A.D.2d 221, 754 N.Y.S.2d 634 (1st Dept. 2003). “[O]ne who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully." H. R. Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 167 (1928).

Thus, the property owner or any other party may be held liable for creating a dangerous condition, which can range from the most obvious examples such as dumping ice in a busy parking lot or sidewalk, See Orr v. Spring, et al., 288 A.D.2d 663, 665, 732 N.Y.S.2d 697, 700 (3d Dept. 2001); Althorf v. Wolfe, 22 N.Y. 355 (1860), to less obvious examples such as negligent shoveling that packs the snow into a sheet of ice, Jablons v. Peak Health Club, Inc., 19 A.D.3d 369, 796 N.Y.S.2d 174 (2d Dept. 2005). Snow removal and building maintenance contractors are frequent culprits of negligence that renders a walkway more hazardous, See Keese v. Imperial Gardens Assoc., LLC, 36 A.D.3d 666, 828 N.Y.S.2d 204 (2d Dept. 2007) (question of fact where snow removal contractor left snow piled in such a way that when it melted a sheet of ice formed on a walkway); Martinez, et al. v. City of New York, 20 A.D.3d 513, 514, 799 N.Y.S.2d 252 (2d Dept. 2005); Salvanti v. Sunset Industrial Park Associates, 27 A.D.3d 546, 813 N.Y.S.2d 110 (2d Dept. 2006), but anyone who creates or exacerbates a dangerous condition will thereby incur liability. In those cases where it is the owner who is alleged to have created or exacerbated the condition, it may appear that you have a second basis for liability; it is important to remember, however, that the storm in progress doctrine still applies, and a negligent attempt to remove snow during an ongoing storm will not create liability. Wheeler v. Grande'Vie Senior Living Community, 31 A.D.3d 992, 819 N.Y.S.2d 188 (3rd Dept. 2006).

An emerging area of snow and ice liability is the liability of common carriers. In Malawer v. N.Y. City Transit Auth., 6 N.Y.3d 800, 812 N.Y.S.2d 438 (2006), the Court of Appeals held that a bus driver has a duty to provide passengers with a safe location to disembark from the bus. See also Hickey v. Manhattan & Bronx Surface Transit Operating Authority, 163 A.D.2d 262, 558 N.Y.S.2d 543 (1st Dept. 1990). Presumably the analysis would be identical for a taxi driver, but as of yet there is no case law addressing whether taxi drivers have a similar duty.


Where the property owner is a municipality, a unique set of issues apply. In New York City, for example, the City removed its potential liability for clearing public sidewalks (except for sidewalks adjacent to one-, two- or three-family houses) by placing the obligation to remove snow and ice from public sidewalks onto the adjacent property owner. See NYC Admin. Code 7-210. Even where the municipality is obligated to remove snow or ice, that obligation is limited by the municipalities’ available resources. Thus, in determining whether a municipality failed to remedy a dangerous snow or icy condition, the courts will embark on "a factual evaluation of the several factors impacting on the City's actual ability, given physical and climatic conditions, and its capital and labor resources, to have cleared the location of ice and snow," Murdock v. City of New York, 272 A.D.2d 249, 250, 708 N.Y.S.2d 89, 90 (1st Dept. 2000), and "evidence of a municipality's reliance on property owners to perform this duty and of its efforts to enforce the ordinance within a reasonable time is relevant in determining whether the municipality breached its duty." Garricks v. City of New York, 1 N.Y.3d 22, 27, 769 N.Y.S.2d 152, 155 (2003). Whereas private property owners are required to clear ice and snow conditions within hours of a storm, municipalities, depending on the severity of the storm, may be accorded several days to complete snow and ice removal. Martinez v. Columbia Presbyterian Med. Ctr., 238 A.D.2d 286, 287, 656 N.Y.S.2d 271, 272 (1st Dept. 1997) (New York City not obligated to clear snow within 48 hours where two large snow storms struck the city within a relatively brief period of time).


* A picture is worth a thousand words. If the client has not done it already, get out and take pictures of the location as soon as possible.

* Obtain climatology records to establish the temperature, the date of the last snowfall and whether it was snowing at the time of the accident. Also, if the interpretation of climatology data becomes a contested issue, a good meteorological expert can make or break your case.

* Be sure to establish the location of the accident as precisely as possible. A small difference in location can have very large consequences.

* Be aware that there may be third parties who are liable for your client’s injuries. Demand snow removal contracts, leases and maintenance contracts, and be sure to review them before the statute of limitations expires.

* Notice is important. Ask your client whether he or she observed the dangerous condition in the past, or if they know anyone who may have observed the condition at an earlier time; and be aware that the notion that a slip and fall case is stronger if the plaintiff observed the dangerous condition at an earlier date or time is counterintuitive for many people.

* It is not enough to merely allege that someone created or exacerbated a dangerous condition, you need some evidence to support that allegation.

* Municipal regulations vary. If you are unfamiliar with the municipality in which your client was injured, be sure to review the local laws and ordinances.

* Be wary of suing a municipality unnecessarily. If there is no basis for liability, including a municipality in your lawsuit unnecessarily will be a waste of time and money (both your own, and the tax payers’).


* A Slip and Fall Lawyer Comments On The December 2009 Blizzard
How to Protect Your Legal Rights If You Slip and Fall On Snow and Ice
Should I Hire An Attorney?


  1. great article.quick question: in nyc, if the property owner does not remove the snow,can they be liable for slip & fall injuries that occur on their property?

  2. I had a bad slip and fall at Esso, Imperial Oil property on 7 Dec 2010. It was 7:30 in the morning and it looked like they threw their mop water out the front door. I didn't see the big round patch of ice which felt like grease was on top of it. I went down, with my right leg going to the right. I sprained my ankle real bad and hurt my knee. I didn't go to the hospital. A man picked me up and he reported it, I think I was on camera right out the front door. I slowly walked a block and a half home. He would not give me insurance paper for over a month to file to the insurance company. The East Indians totally ignored me so I called a lawyer and he took my case over the phone after I explained everything to him. I had just used my Visa card before the accident as their was proof of me being there. I am still waiting on my lawyer.