This was originally published on the SGR Blog.
Was Claim Barred by “Storm In Progress” Rule?
Krystyna Prystupa allegedly sustained injuries to her shoulder following a fall she took on the property owned and operated by Crown Plaza Resort & Golf Club at Lake Placid, New York, at or about 1:32 p.m. on January 24, 2017. Prystupa asserted that there was snow and maybe ice conditions that should have been cleared on the walkway where she fell. In contrast, Crown Plaza alleged that there was a “storm in progress” and the resort could not be held liable for the condition of the walkway at the time of the incident.
Crown Plaza moved for summary judgment dismissing Prystupa’s complaint, and, in support of the motion, submitted the Local Climatological Data/Hourly Observations for January 24, 2017 showing temperatures below freezing from the early morning hours through the time of Prystupa’s fall. The report also showed precipitation falling during the relevant time period, albeit in minimal amounts of snow and rain. Relying on that data, Crown Plaza moved for summary judgment dismissing the complaint, in essence, based on the “storm in progress” defense.
In opposition, Prystupa submitted the expert affidavit of George Wright, Certified Consulting Meteorologist. Wright opined that, based upon his examination of the climatological data and the litigation documents, the condition of the ground where Prystupa slipped and fell “was formed by the repeated melting and refreeze that occurred during the January 19-23, 2017 period and the freezing rain that occurred prior to 7:30 a.m. on the day of the [fall].”
In addition, Wright opined that:
No measurable snowfall, i.e., only trace amounts of snow fell between approximately 11:00 a.m. and the time of [the] incident. A trace of snowfall is defined by the NWS [National Weather Service] as less than one-tenth of an inch (.1-in.) and is considered to be unmeasurable. The ice [Prystupa] slipped and fell upon formed prior to 7:30 a.m. on the day of the incident, was present on the subject sidewalk for more than six (6) hours prior to the time she fell and was therefore a long-standing condition.
Crown Plaza did not contest Wright’s findings in their reply, arguing instead that the resort was excused from liability because the storm was tapering down. Crown Plaza asserted that Prystupa was speculating as to what caused her to slip, in that she did not categorically identify the cause of her fall as ice.
Under the storm in progress rule, a property owner will not be held responsible for accidents occurring as a result of the accumulation of snow and ice on its premises until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm. On a motion for summary judgment, the question of whether a reasonable time had elapsed may be decided as a matter of law by the court, based upon the circumstances of the case. However, if the storm had passed and precipitation had tailed off to such an extent that there was no longer any appreciable accumulation, then the rationale for continued delay abated, and commonsense would dictate that the rule not be applied.
The Court found that Crown Plaza failed to establish prima facie entitlement to judgment as a matter of law dismissing the complaint by demonstrating that there was a storm in progress at the time of the accident, or that there was not a reasonable opportunity after the cessation of the storm to remedy the allegedly dangerous condition.
The Court reviewed Crown Plaza’s weather data, Prystupa’s deposition, the deposition of Crown Plaza’s principal Arthur Lussi, and Wright’s sworn affidavit and report. Based on the facts presented, and applying the relevant legal principles, the Court found that issues of fact existed as to the prevailing weather conditions, the actions taken by Crown Plaza to reasonably maintain the property, and the cause of Prystupa’s slip and fall.
The Court would not discredit Prystupa’s version of the facts because she could not say, for certain, that it was ice that she slipped on, particularly given the fact that snow that accumulated on and near the sidewalk could have melted and refroze, and a jury could conclude that Crown Plaza had a reasonable time to ameliorate the snow and ice condition. The resolution of those issues required a trial.