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MSZL&M Leverages Weather Data to Secure Snow and Ice Slip & Fall Defense Verdict

Jan 1, 2010 - Recent Verdicts by Jason G. Wehrle

Defense Verdict for New Years’ Eve Slip and Fall Accident

Kevin Kelly, a partner in MSZL&M’s New York office, recently secured a defense verdict in Supreme Court, Kings County, in the matter of Duran v. Acequia Holdings Inc.  As many in the legal and liability insurance fields are aware, Kings County is by and large a plaintiff-oriented venue with higher than typical verdicts when compared to other venues in New York State.

The Duran v. Acequia Holdings, Inc. matter involved a claim that the plaintiff slipped on sidewalk ice at 6:15 a.m. on New Years’ day in 2010.  The chief injury sustained by the plaintiff was a fractured ankle.

Motion for Summary Judgment

In a motion for summary judgment we argued that the ice in question had been deposited during the overnight hours of New Years’ Eve and New Years’ morning, when the New York metropolitan area was subjected to a lengthy period of “wintry mix” conditions.

Consequently, we asserted that the Municipal Code provision providing safe harbor for property owners from 9:00 p.m. to 7:00 a.m. precluded the finding of liability against our client. In opposing our summary judgment, plaintiff’s counsel utilized meteorologist, Dr. Joe Sobel, as their expert.

Dr. Sobel is well known in New York as a meteorologist who has been associated with several local news shows. Dr. Sobel opined that there had been a snow storm in the morning hours of New Years’ Eve which deposited about one and a half inches of snow on what had been clear sidewalks. 

The snow had been admittedly cleared away by mid-day on New Years’ Eve by our client’s superintendent.  However, Dr. Sobel further opined that that the precipitation that fell later that night and into the early morning hours of New Years’ Day was so minimal that the ice patch could not have formed during the “wintry mix” event, largely because the temperatures at nearby LaGuardia Airport remained above freezing all night. Rather, he concluded that the ice in question must have been created by the earlier snowstorm when the sidewalk was shoveled but not properly treated with an anti-icing agent. 

We presented our own expert, George Wright, to contradict Dr. Sobel’s conclusions.  However, the presiding Judge Edgar Walker found that the battling experts created a fact question which was to be determined by a jury and thus denied our motion for summary judgment.

Examining Weather Details at Trial

At trial, with a $1 million policy exposure, the insurance carrier negotiated a high-low arrangement with the plaintiff’s counsel after the jury had been empaneled. With the plaintiff’s settlement demand at $450,000, the insurance carrier stipulated with the plaintiff to a $225,000 high and $50,000 low arrangement. 

During trial the plaintiff’s counsel argued that this was a case of “corporate profits over people.” The attorney took the position that the defendant owned seven buildings but only hired one man to do all of the work for these buildings in order to save money. The plaintiff’s counsel also told the jury that it was too much work for just one person to do, which forced the superintendent to take short cuts when clearing snow and other tasks. The attorney further argued that the condition was created in the early afternoon of New Year’s Eve because the superintendent failed to spread salt and clear the original snow properly, leading to the “hard” and “dry” ice patch upon which the plaintiff slipped.

In defending the suit Mr. Kelly explained to the jury that the weather station at LaGuardia Airport was the closest official source of weather data for the accident location, that about 1.3 inches of snow was measured from the platform at LaGuardia at 1:00 p.m. and that the total snowfall at the end of the day was 1.7 inches, thus setting up testimony that .4 inches of snow fell that evening. 

Mr. Kelly also explained to the jury that the temperatures through the early morning hours fluctuated between 33 and 34 degrees at the measuring site and that the falling sleet, snow and rain hitting the concrete could have formed an icy patch that night on a sidewalk that had been cleaned of snow and salted around 2:00 p.m. the previous day.  

It was also explained to the jury that while the plaintiff claimed to have seen “someone” clearing snow on the afternoon of New Years’ Eve at about 2:00 p.m., he did not see ice on the sidewalk when he was picked up by car at 11:00 p.m. that night, and that the owners had no duty to clear any condition in the overnight hours.  Moreover, whatever ice may have formed was created between 8:00 and 9:00 p.m. when the second precipitation event started and the morning before the plaintiff fell.  

Unanimous Verdict: No Negligence on the Part of the Defendants

The trial judge, Bernard Graham, determined that there was insufficient evidence to support a verdict of comparative negligence and consequently refused to charge that portion of the Pattern Jury Instruction to the jury or include the standard jury question on the verdict sheet.

The decision by Judge Graham regarding comparative negligence was significant as Mr. Kelly had argued that the jury was within their rights to determine that the plaintiff had simply tripped over his own feet, or that his testimony that he had not imbibed alcohol that entire night was simply untrue (despite no evidence to the contrary). However, Judge Graham rejected these arguments and refused to charge comparative negligence or to include it in the verdict questionnaire.   

After three days of trial testimony, including the testimony of the plaintiff, the defendant’s superintendent and experts, Dr. Sobel for plaintiff and George Wright on behalf of our client, the jury returned with a unanimous verdict in favor of our client, as the jury determined that there was no negligence on the part of the defendants. Therefore, the issue of Judge Graham’s refusal to charge the jury on plaintiff’s comparative negligence was rendered moot. 

What is significant in this matter is that the jury rejected the “expert” testimony of Dr. Sobel and reasoned that precipitation overnight had accumulated on the sidewalk, creating an icy condition which was not caused or created by the defendants.  Thus, slip and fall claims involving snow and ice conditions remain difficult claims for plaintiffs to prevail upon, plaintiff-oriented venues notwithstanding.