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VOLUME 7 February 2005 | ||||||
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DEFENDING THE SNOW AND ICE REMOVAL ACTION IN NEW YORK By Thomas G. Darmody, Esq. and Richard A. Gash, Esq.
The Winter of 2004-2005 has been a somewhat harsh one, especially following the late January blizzard that dumped almost two feet of snow on many areas in the Northeast. There are many pratfalls that must be avoided when defending a case based on negligent snow and ice removal by a property owner. Identifying the applicable case law as early as possible and gearing the defense of your particular action toward this law is crucial to defending the snow and ice action.
To establish a prima facie case of negligence for a dangerous snow and ice condition, a plaintiff must prove that the defendant either created the condition or had notice of such condition. Simmons v. Elmcrest Homeowners Association, Inc.. The creation of a dangerous snow or ice condition typically occurs when the property owner undertakes snow removal, but does so in an unreasonable manner. The duty owed in removing or piling snow is to exercise reasonable care and to not create a dangerous condition. Calderon v. New York City Housing Authotiy. Moreover, the general rule is that a failure to remove all of the snow and ice off one’s property is not negligence; it must be shown that the hazard was increased by what was done in the process of removing snow and ice. Recto v. City of New York..
The majority of snow and ice cases in New York involve a situation where an abutting landowner has undertaken to clear the snow and/or ice from the sidewalk adjacent to his property. Public sidewalks are, absent a contrary agreement, the responsibility of the municipality. An abutting landowner owes no duty to pedestrians to remove natural accumulations of snow and ice from the sidewalk. Roark v. Hunting. However, if the landowner does undertake to shovel the public sidewalk, he must use reasonable care when doing so and will be held liable for injuries caused by snow removal that increased the hazard on the sidewalk.
It is important to remember that any landowner who undertakes to remove snow is under no obligation to perform snow removal until a sufficient time after the cessation of the storm. A landowner cannot be held liable for failure to clear snow while a storm is still in progress. Simmons v. Metropolitan Life Insurance Co..
Where there is a question concerning how long the snow or ice upon which plaintiff claims to have slipped existed, it is best to move for summary judgment as soon as reasonably possible. It has long been the law in the State of New York that where a plaintiff did not see the icy condition that allegedly caused her accident beforehand and can only speculate on its creation or duration, her complaint must be dismissed. Wilson v. Prazza. Even a claim that the landowner “should have known” of the icy condition is insufficient to create liability. A general awareness that water can turn to ice is legally insufficient to constitute notice of a particular condition that caused plaintiff’s accident.
When defending a snow and ice case, this case law should be kept in mind with the ultimate goal being the filing of a summary judgment motion (where appropriate) as soon as possible. |
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