Maurice Recchia, New York Law Journal
May 20, 2016
The New York Court of Appeals on May 5, 2016, addressed the "storm in progress" doctrine in a case that involved a winter rain storm in progress.
A Brief Background
The "storm in progress" doctrine was clearly stated by the Court of Appeals in 2005 in Solazzo v. New York City Transit Authority: "A property owner will not be held liable in negligence for a plaintiff’s injuries sustained as a result of an icy condition occurring during an ongoing storm or for a reasonable time thereafter."1
The issues raised by Solazzo then are: What constitutes an "ongoing storm," and, what constitutes a "reasonable time thereafter"? On the question of a "reasonable time thereafter," in New York City there are special rules. In a case cited by the Solazzo court, the Court of Appeals had previously affirmed a First Department case defining this as some 30 hours after a bad storm had hit New York City in 1982.2 This gave rise to a new New York City Administrative Code provision, Section §16123 which requires city landowners and others to begin clearing snow within four hours after snow stops falling (with the exception that the four-hour clock won't start between 9 p. m. and 7 a.m.).3
In upstate New York, the Fourth Department held in 2014 that there was an issue of fact sufficient to defeat a defense motion for summary judgment where the proof submitted demonstrated that four hours had elapsed between the last fall of freezing rain and the plaintiffs slip and fall accident causing injury.4
The new Court of Appeals case is Sherman v. New York State Thruway Authority which addresses the question of what constitutes an "ongoing storm."5 Rodney Sherman was a New York state trooper who was stationed at the barracks in Newburgh, N.Y., and claimed injury after slipping and falling on an icy sidewalk at the barracks. Sherman testified at his deposition that there was an ice storm the night before his fall, that during his drive to work on the morning of his fall the weather was a "wintery mix" of sleet and rain, and that when he arrived at the barracks at 6:50 a.m. the weather was an "intermittent wintery mix." At 8:15 he had to leave the barracks to respond to a traffic accident. When he stepped outside he noted that the weather had warmed up and there was a light rain falling. He walked about eight feet on the barracks sidewalk when he then slipped and fell on an icy area of the sidewalk.
A Thruway Authority maintenance supervisor testified that the Authority was responsible for maintaining the sidewalks around the barracks but during a storm they were given a third priority and were cleared only after the roadways and service areas had been cleared first. Two Thruway Authority equipment operators, one who worked from 3 p.m. to 11 p.m. the night before, and one who worked from 11 p.m. to 7 a.m. on the day of Sherman's fall, both recorded in their logs and testified at their depositions that it was raining during their shifts. Weather data for the airport five miles from the accident site indicated rain and mist and above freezing temperatures from 10:45 the night before the accident and for several hours after the accident.
On these facts a majority of the Court of Appeals held that the defendant Thruway Authority had established it deserved summary judgment by submitting "uncontroverted evidence that a storm was ongoing at the time" of Sherman's fall; the court further held that "the undisputed facts that precipitation was falling" at the time of the accident "and had done so for a substantial time" before the accident, "while temperatures remained near freezing, established that the storm was still in progress and that the Authority's duty to abate the icy condition had not yet arisen."6
Sherman had argued that the facts established that the snow and ice storm had ended hours before his fall and no later than by 5:45 a.m.
The dissent written by Judge Jenny Rivera, with newly appointed Judge Eugene Fahey joining asserted that the court had never before held that "above-freezing rain alone constituted a type of storm-in-progress" which would relieve a property owner of its duty to keep its premises safe. The dissent further asserted that therefore "if an ice storm has changed, due to warming weather into mere rain, then the storm has ended."7
The dissent asserted that contrary to the majority's finding of "undisputed facts" establishing a "storm in progress," the proof submitted demonstrated that the weather conditions were "highly contested." Given these contested facts about the weather, there were thus triable questions of fact about the nature of the weather at the time of the accident and the applicability of the "storm in progress" doctrine.
The dissent found that to the extent the majority had inferred a "storm in progress" from the disputed facts about the weather, that inference favored the Thruway Authority as the moving party. This, the dissent found, was contrary to established precedent on summary judgment which a solid line of case law holds must be resolved in favor of the non-moving party.
The dissent may have raised the stronger argument. The majority opinion stands on the presumptive facts that "it was still raining" at the time of the accident and that the temperatures remained "near freezing" when Sherman fell. The majority holds these facts establish that a storm was still in progress. The dissent characterizes the same facts as creating triable issues because if an ice storm had changed to rain hours before the time of the accident, there is then an issue of fact about whether an ice storm which changes to rain still constitutes a storm as defined by the "storm in progress" doctrine, and, if such a changeover from ice or snow to rain is a benchmark for a storm having ended, there is also an issue of fact about whether enough time had passed between the ending of the "storm" and the time for the landowner to begin clearing such that a trier of fact could determine this time was reasonable or not.
It seems clear from the majority opinion that for now, rain which follows without a temporal break from a snow or ice storm and which continues in time for several hours after such a snow or ice storm can be defined as a "storm in progress" such that a landowner's duty to clear the premises will not arise until the rain has ended. Whether the Court of Appeals intended this to be the consequence of their decision in Sherman, or whether the court perhaps overreached just a bit in applying settled precedent to a New York State defendant will be more clearly outlined by future cases. Time will tell whether the extra leeway seemingly granted by the majority will result in reduced vigilance by property owners. If that happens, the Sherman decision may be revisited in the not too distant future.
1. Solazzo v. N. Y. City Transit Auth., 6 N.Y.3d 734, 735 (2005).
2. Valentine v. City of New York, 57 N.Y.2d 932 (1982).
3. The "four-hour" rule is not hard and will be flexed for unusual snow events. See Rusin v. City of New York, 133 A.D. 648 (2015), where the Second Department held that 57 hours after a storm was a reasonable time to begin snow clearing after an "extraordinary snowstorm."
4. Korthals v. LCB Capital, 115 A.D. 3d 1326 (4th Dept. 2014).
5. Sherman v. New York State Thruway Auth., 2016 N.Y. Lexis 1061, 2016 NY Slip Op 03546
(May 5, 2016).
6. Id at 2-3.
7. Id. at 8-9.
Maurice Recchia is of counsel at Russo and Toner.
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