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Storm In Progress Defense Under New York Law

By: Kristen Mowery, Law Clerk

Under New York law, courts recognize an exception to the ordinary duty of care owed—that is, to keep the landowner’s premises reasonably safe of dangerous or hazardous conditions—known as the storm in progress doctrine.  Brandimarte v. Liat Holding Corp., 158 A.D.3d 664, 664-65 (N.Y. App. Div. 2018); Gervasi v. Blagojevic, 158 A.D.3d 613, 613 (N.Y. App. Div. 2018).  According to the storm in progress rule, plaintiffs are precluded from recovering for injuries that occur on a landowner’s property and are caused by the accumulation of snow and ice.  Smith v. Christ’s First Presbyterian Church, 93 A.D.3d 839, 839-40 (N.Y. App. Div. 2012).  The exception shields landowners from liability where the storm is ongoing because “shovel[ing] snow while continuing precipitation or high winds are simply re-covering the walkways as fast as they are cleaned [would] render[] the effort fruitless.”  Powell v. MLG Hillside Assocs., 290 A.D.2d 345, 345 (N.Y. App. Div. 2002).  Thus, landowners are afforded a reasonable time following the cessation of a storm to remedy the dangerous condition the storm created. Id.

Where a defendant presents sufficient evidence that the storm was ongoing during the time of the injury, she is entitled to judgment as a matter of law. See id. at 345 (“Where the evidence is clear that the accident occurred while the storm was still in progress, defendants may avail themselves of the rule as a matter of law.”); see also Sherman v. New York State Thruway Auth., 27 N.Y.3d 1019, 1021 (N.Y. 2016); Smith, 93 A.D.3d at 839; Marchese v. Skenderi, 51 A.D.3d 642, 642 (N.Y. App. Div. 2008). Furthermore, as the party moving for summary judgment, a defendant “ha[s] the burden of establishing, prima facie, that it neither created the snow and ice condition nor had actual or constructive notice of the condition.” Smith, 93 A.D.3d at 839.

Defendants can satisfy this prima facie burden by presenting testimonial or deposition evidence of witnesses, experts, or the plaintiff herself.  See Sherman, 27 N.Y.3d at 1021.  The most persuasive evidence, however, is “the analysis of a licensed meteorologist.”  Powell, 290 A.D.2d at 345.  In Powell, one of the leading New York cases on the doctrine, plaintiff’s meteorologist presented climatological charts to show that approximately two inches of snow had fallen overnight, but that “precipitation had tailed off to less than one-tenth of an inch (the equivalent of less than 0.01 inches of rain) per hour” by 6:00 a.m. the following morning.  Id. at 346.  Because the fall occurred around 9:15 a.m., and because the custodian was not brought to the scene until anywhere from 8:00 a.m. to 9:40 a.m., the court concluded that the defendants failed to act with the appropriate degree of care once the storm ceased and their duty of care arose.  Id. at 345-46.  To this end, the court noted, “[o]nce there is a period of inactivity after cessation of the storm, it becomes a question of fact as to whether the delay in commencing the cleanup was reasonable.”  Id. at 346.

In 2016, the highest New York court supported its decision to affirm the Appellate Division’s grant of summary judgment for defendants with defendant’s uncontroverted evidence of plaintiff’s own testimony and a certified weather report.  Sherman, 27 N.Y.3d at 1021.  Sherman involved a New York State Trooper who sought recovery from the New York State Thruway Authority following a fall on an icy sidewalk outside the plaintiff’s barracks.  Id. at 1020.  Defendant presented plaintiff’s deposition, in which plaintiff testified that “‘an ice storm’ had taken place the night before the accident, and an ‘intermittent wintry mix’ of snow, sleet and rain persisted the next morning until 6:50 a.m., when claimant arrived at the trooper barracks for work.”  Id. at 1021.  Because there was continuous precipitation at the time of the accident around 8:15 a.m., that had been ongoing since the night before and involved near freezing temperatures, the court concluded that defendant was entitled to the storm in progress defense and thus, not liable as a matter of law. Id.

Landowners must keep their premises free of dangerous conditions, including those caused by snow, ice, and freezing rain.  However, New York law recognizes the need to allow for a reasonable period of time before the obligation to clear walkways arises.  Where a storm is still ongoing and an unfortunate accident occurs, the injured party can only recover if it shows the landowner’s duty arose following the storm’s cessation, and that the landowner failed to remedy the dangerous situation within a reasonable time.  New York courts will grant summary judgment and dismiss a plaintiff’s complaint where landowners present prima facie evidence, especially from a certified meteorologist, that the storm was ongoing at the time of the injury.  As one New York opinion expressed, “in the absence of proof that the plaintiff slipped and fell as a result of something other than snow, the plaintiff has no cause of action against the defendants.” Marchese, 51 A.D.3d at 643.

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