This was originally posted on the SGR Blog.
Joanna Lechowicz sued the Condominium for injuries she allegedly sustained, on March 10, 2014 at approximately 6:25 a.m., when she slipped and fell on snow or ice on the sidewalk abutting 130 Pondfield Road, Bronxville, New York, at or near the property line of 12 Meadow Avenue, Bronxville. Wojcjech Lechowicz sought damages for the alleged loss of consortium arising from Joanna’s accident and injuries.
The Board moved for summary judgment dismissing the complaint on the ground that the “storm in progress” rule applied.
A defendant property owner moving for summary judgment in an action predicated upon the presence of snow and/or ice has the initial burden of establishing prima facie that it neither created the snowy or icy condition that allegedly caused the plaintiff to fall nor had actual or constructive notice of such condition. That burden may be satisfied by offering evidence that there was a storm in progress at the time of the accident. If the defendant meets this initial burden, then the burden shifts to the plaintiff to raise a triable issue of fact as to whether the injured plaintiff’s fall was caused by something other than precipitation from the storm in progress.
Under the so-called `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.
In support of the motion, the Condominium submitted the transcript of Joanna’s examination before trial, the transcript of the Condominium’s witness Harrin K. Platzner’s deposition, and the affidavit of Howard Altschule, a Certified Consulting Meteorologist, coupled with the climatological records and data he relied on.
Joanna testified that, at the time of the accident, it was not raining or snowing, and there was no precipitation falling. She also testified that at the time of the accident, there was snow piled next to the sidewalk towards the premises on her right-side. Joanna testified that she did not see the ice prior to her accident. Nevertheless, she averred that after the accident she observed a clear puddle-like ice patch that extended from the curb on her left-side all the way to the snow pile on her right-side. Joanna further described the patch of ice to be wider towards her right-side and narrowed as it went towards her left-side (the curb). Joanna also testified that there was no salt or sand over the ice patch, and that it felt wet to the touch.
Harrin K. Platzner, an employee of Platzner International Group, LTD., testified that, at the time of the accident, Platzner LTD was, and is currently, the managing agent for the Condominium. Platzner averred that, as the managing agent, Platzner mostly provided supervisory services. Platzner explained that he was an agent of the Board, and executed the instructions.
Platzner testified that the Condominium was responsible for the removal of ice and snow from the sidewalk. Platzner averred that he would inspect the premises during the winter, however, he would not make a note of an icy or snowy condition, as he or someone else would resolve the issue immediately. Nonetheless, he testified that the removal of ice and/or snow from the sidewalk would ultimately be the responsibility of the Condominium’s employee, Robinson Lugo, the full-time resident superintendent. Platzner also testified, in effect, that no one could have observed ice where the accident occurred, as he had never seen ice in that spot. He further testified that “we almost [emphasize added] always place [the snow] to the left side,” therefore, there were no piles of snow to Joanna’s right-side. Notably, Platzner had no personal knowledge of when the sidewalk was last inspected or what it looked like within a reasonable time prior, during or after the accident.
The Board’s meteorologist Howard Altschule opined that no precipitation fell on March 8th and 9th of 2014, and that air temperatures were above freezing from approximately 7:05 a.m. on March 8, 2014 through and after the time of the accident on March 10, 2014. Nevertheless, Altschule’s affidavit revealed that there was half-an-inch of residual ice and/or snow on both March 8th and 9th of 2014. Regardless. Altschule concluded that a snow storm was in progress when the accident occurred and that the storm produced a light coating of slippery wet snow.
The Court noted that the Board presented evidence that there was a storm in progress when Joanna slipped and fell. Nonetheless, the Court found that Condominium failed to meet its prima facie burden demonstrating that it neither created nor had actual or constructive notice of the icy condition that allegedly caused Joanna to fall.
Moreover, the Board’s own submissions, especially Joanna’s deposition and their expert’s affidavit, raised a triable issue of fact as to whether she slipped and fell on old snow and/or ice that was a product of a prior storm, as opposed to precipitation from the storm in progress, and as to whether the Board had constructive notice of the preexisting condition.
The Court further noted the Board’s argument that they did not have a duty to remove the ice at the time of the accident pursuant to The Village of Bronxville Code, Article III § 260-12 4(C), and that the Code did not impose tort liability upon them, was also insufficient to establish their prima facie burden. Here, Joanna alleged that the Board created the icy condition and that they undertook snow and ice removal efforts which made the naturally occurring conditions more hazardous. While the Board established that section 260-12 did not impose tort liability upon them for a failure to remove snow and ice from the sidewalk, they failed to demonstrate that they did not create the icy condition through their snow and ice removal efforts.
While the Court found that summary judgment must be denied regardless of the sufficiency of the opposing papers, it nevertheless found that Lechowicz’ raised a triable issue of fact.
In opposition, Joanna submitted the deposition transcript of nonparty witness, Sargent Watson Morgan, coupled with his relevant business records, and the affidavit of George Wright, a Certified Consulting Meteorologist, coupled with the climatological records and data he relied on.
Sargent Morgan testified that, upon arriving to the scene of the accident, he observed a large patch of clear hard ice, which he believed caused Joanna’s fall. Morgan further testified that the patch of ice was the width of the sidewalk, however, it narrowed as it went towards the curb. As part of his business records, he drew the patch of ice and Joanna on a diagram. Morgan also testified that there was no sign of sand or salt on the ice patch. Such testimony demonstrated that the patch of ice, which allegedly caused Joanna to slip and fall, was visible at the time of the accident and not black ice as the Board contended.
Moreover, several times throughout the deposition, Morgan was asked about the weather at the time of the accident and he consistently testified that the weather was clear and that there had been no snow or precipitation that night before or at the time of the accident. Morgan also produced his daily activity log for the date of the accident, which referenced the weather conditions as being clear.
Wright opined that no precipitation fell on March 8th and 9th of 2014. However, he opined that the temperature fluctuated above and below freezing from March 1, 2014 through and after the time of the accident on March 10, 2014. Wright opined that the prolonged period of melting and refreezing that occurred during March 1-9, 2014, produced a buildup of thick ice on the sidewalk where Joanna slipped and fell. Wright noted that on March 10, 2014, between approximately 4:30 a.m. and 5:45 a.m., there was merely a trace of snowfall, i.e., less than one-tenth of an inch, which produced white crystallized snowflakes, but did not produce ice. Furthermore, Wright opined that Joanna slipped and fell on ice that formed prior to the accident and was present on the sidewalk for more than 21 hours before her accident. Finally, Wright explained that the patch of ice could have felt wet, because a portion of the ice had melted.
The Court found that Joanna raised a triable issue of fact as the whether the accident was caused by the snow and/or ice that existed prior to the storm, as opposed to the precipitation from the storm in progress, and whether the Board had constructive notice of the alleged preexisting condition.