Articles

New York State’s Storm In Progress Doctrine

A defendant moving for summary judgment on personal injury claims predicated on snow and/or ice has the burden of establishing, prima facie, that it neither created the icy condition nor had actual or constructive notice of it. In New York, this burden may be met by presenting evidence that there was a storm in progress when the plaintiff allegedly slipped and fell.

In Fisher v. Kasten, 2015 NY Slip Op 00491, __ A.D.3d __ (2d Dept. 2015), the Appellate Division, Second Department, granted summary judgment to the defendants under the storm in progress doctrine. The defendants relied on testimony and certified meteorological records, which demonstrated, prima facie, that it was sleeting at the time of the occurrence. The court dismissed the complaint on the grounds that the “storm in progress” rule applied.

The plaintiff attempted to create a triable issue of fact as to whether the icy condition was a result of a recurring condition of water dripping from an awning onto the landing. Notably, the court rejected this content on the ground that a “defendants' general awareness of a recurring condition” is insufficient to establish constructive notice and, in any event, “given the weather conditions, the plaintiff expert's conclusion that the specific icy condition upon which the plaintiff slipped was caused by a defective awning was speculative.”

This ruling can be used as a defense in future cases and makes it more difficult for the plaintiffs to claim a “recurring condition” in snow and ice cases, at the motion stage or at trial.

Related Practices


Related Attorneys

Find an Attorney

Each of the firm's offices include partners, associates and a professional staff dedicated to meeting the challenge of providing the firm's clients with extraordinary service.