BABY IT’S COLD OUTSIDE . . .
AND TIME FOR A LOOK AT
SOME RECENT DECISIONS OF
THE COURT IN SNOW AND ICE CASES
While there are many cases, each with a different spin on a snow and/or ice condition, this article will focus on just a few. These two cases are from New York City but the legal principles apply state-wide. How would you rule?
In the first case, the injured party/plaintiff (P) allegedly slipped and fell on ice which was underneath snow. This occurred while he was walking on a public sidewalk in Manhattan. P commenced a lawsuit against the defendant (D), the abutting property owner (not against the City of New York) alleging negligence. D moved to dismiss the claim, asserting that there was a storm in progress and therefore D could not be responsible. The trial court granted the motion, dismissed the case and P appealed.
In a different case, P testified that she slipped and fell as she was exiting a bus owned and operated by the New York City Transit Authority (D) because the step was covered with a slushy condition. P and the bus driver, who worked for D, both stated that there was snow all over the ground from a storm that had ended earlier that day. Weather records submitted by the Transit Authority demonstrated that a snow storm had started the previous night and ended earlier in the day of the accident and had left about 6 inches of snow on the ground. The bus driver also testified that passengers track snow onto the bus on their shoes and boots as they boarded. D moved to dismiss the case and that motion was denied. The Transit Authority appealed.
If you were part of the appellate court, how would you decide these two apparently similar cases?
In the case with the pedestrian who fell in Manhattan, the appellate court reversed and allowed the plaintiff’s case to proceed. Under the storm in progress rule, a property owner will not be held responsible for accidents occurring as the result of the accumulation of snow and ice on its premises until an adequate period of time has passed following the end of the storm so as to allow the owner an opportunity to remove or otherwise lessen the hazards caused by the storm. If the storm is ongoing, however, and a property owner elects to remove the snow, it must do so with reasonable care or it could be held liable for creating or making worse a natural hazard created by the storm. In this case, the plaintiff included her own affidavit as well as an affidavit from her weather expert which raised a triable issue of fact as to whether any snow removal efforts which the defendant undertook before the accident either created or made worse the ice condition which allegedly caused the plaintiff to fall. This the Court ruled is something that should be decided by a jury, not by a judge.
In the accident involving the bus, the plaintiff did not fare as well. The Court stated that “common carriers” are not obligated to provide a constant remedy for the tracking of water onto a bus during an ongoing storm or for a reasonable time thereafter. The Court continued that it would be unreasonable to expect the bus company to constantly clean the front steps of a bus. Additionally, the plaintiff’s own weather expert agreed that the condition on the bus steps resulted from the six inches of snow left on the ground by the storm that had ended several hours before the happening of the accident. Accordingly, the claim was dismissed.
There are many issues related to snow and ice conditions. What about the responsibility of snow plowing contractors? The general rule is that a limited contract to provide snow removal services does not make the contractor liable for your personal injuries as someone who is just walking through. If the snow and ice contractor enters into a “comprehensive and exclusive” property maintenance obligation which would entirely absorb the duty of the property owner to maintain the premises safely, then the snow removal contractor may be liable. This type of contract is, however, not the type normally entered into between a property owner and a snow removal contractor. These contracts typically require that the snow removal contractor respond only when there is an accumulation of two or more inches of snow or an accumulation of ice.
The rights and responsibilities of everyone involved in the snow and ice condition, whether you are walking, driving or a property owner, can and will vary and are very fact intensive.
If you are involved in a snow and/or ice accident, you should contact a seasoned personal injury attorney.
Robert M. Lefland is Senior Counsel and primary attorney in charge of Personal Injury at J&G. He can be reached by calling 866.303.9595 toll free or 845.764.9656 and by email . He is available by appointment on Saturday’s. If you need his immediate attention, you can reach him on cell.