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Leav and Steinberg Team

All Work, Snow, Ice, and Wetness

Appeals coming to fruition now were in the making long before 2015 arrived and the New York Appellate Courts have already decided thirty or so snow and ice cases this year. Many more will be coming. As we prepare for the next big storm that’s coming, let’s examine some general legal issues. For purposes of this blog, we will stick to the basics and not assess each and every fact in detail (quite unlike what this firm does when prosecuting real cases). We will also point out the major caveat that each and every case is unique. A case’s existence and outcome will vary based on a multitude of factors that will not be fully explained in this blog.

Envision this. You are a young attorney who is preparing for trial. On your way to the office last Saturday morning, you slip on the marble floor of your large office building lobby, sustaining serious injuries. Unfortunately for your injuries, there is no case. A vestibule floor that was inherently slippery due to its smoothness is not an actionable defect. See e.g. Beceren v. Joan Realty, LLC, 2015 NY Slip Op 00324 (2nd Dept. 2015).

Next scenario. It’s still Saturday. You receive a surprise flower delivery, but since your office is technically closed and the firm’s secretary is not working, you go down to the lobby to get it. Unbeknownst to you, before you arrive on the scene, the delivery man spills water from the vase onto the floor. You slip on it, sustaining serious injuries. Here, you could establish fault of the flower delivery man and/or the building officials if you can show that they created the spill or had sufficient notice of the wet condition that caused the slip and reasonable time to clean and/or warn. See e.g. Weiss v. Gerard Owners Corp., 22 A.D.3d 406, 803 N.Y.S.2d 51 (1st Dept. 2005).

Next scenario. Same day. You take a taxicab home from the office because the 7 train is not running due to weekend construction, plus you have a large rolling bag with your heavy case file. The cab skids on ice and crashes into a pole, causing you serious injuries. The particular conditions at hand will be key to assessing fault of the taxi driver. The conditions include, but are not necessarily limited to the speed of the vehicle, the road conditions, the weather, and what the driver did (if anything) to try to avoid an accident. See e.g. Simpson v. Eastman, 300 A.D.2d 647, 753 N.Y.S.2d 104 (2nd Dept. 2002).

Next scenario. It’s Sunday, late in the morning, and you feel a bit lax about your schedule today. You head to the gym for a long workout before starting the day’s trial preparation at home. You are wearing Asics running shoes, which are great for fartleks, but not exactly built for inclement weather. You walk on nondescript wetness on the sidewalk then a metal grate on which you slip and fall, sustaining serious injuries. One thing you should know is the defense and/or court may want to examine your shoes. In Wright v. U.S., 866 F.Supp. 804 (SDNY 1994), the court noted that the injured person’s shoes were not produced or examined by an expert who could evaluate locations, angles, and indentations to ascertain whether the accident happened as the injured person claimed. Additionally, the Wright court pointed out that the disappearance of the shoes could result in a negative inference against the plaintiff. Beyond that, your choice of shoes could subject you to an argument that you were at fault for your own accident. See e.g. Vallade v. Fischer, 2014 WL 5481881 (WDNY 2014) wherein the injured person was wearing oversized shoes [upon information and belief they were not clown shoes, just too big for him] but was caused to fall by an officer who was rushing him and not holding onto him appropriately. On the flip side though, if you are able to prove that your shoes were defective, there may be a better case. Speirs v. Dexter Shoe Co., 42 A.D.3d 494, 840 N.Y.S.2d 610 (2nd Dept. 2007).

Back to the main issues at hand with the next scenario. It’s Monday evening. You meet with an expert at his midtown office. On your way out after the meeting you get an email that you should be at the office prepping for tomorrow’s evidentiary hearing on another attorney’s case. Feeling anxious about that and wanting to do your duty, you furiously rush home to review the file. In the midst of your manic panic, you slip on wetness that was tracked in by other visitors, sustaining serious injuries. What are some things you should consider in determining whether you have a legitimate case? “[A] defendant may be held liable for an injury proximately caused by a dangerous condition created by water, snow, or ice tracked into a building if it either created the hazardous condition, or had actual or constructive notice of the condition and a reasonable to undertake remedial action [citations omitted].” Beceren v. Joan Realty, LLC, 2015 NY Slip Op 00324 (2nd Dept. 2015). Additionally, astute defense counsel will ask you about your pace before the fall and try to lay blame on you. Although this technically constitutes blaming the victim, the law allows defense to take on the burden of proving comparative fault.

Next scenario. It’s Tuesday evening. You leave the office at 7 PM wearing big black snow boots with rubber treads. It’s precipitating. The sidewalk in front of your building is covered in an inch or two of snow and ice. Despite your appropriate footwear, you slip and fall, sustaining serious injuries. Unfortunately for your injuries, again no case. “Under the storm-in-progress rule, a property owner or tenant in possession will not be held responsible for accidents caused by snow or ice that accumulates on its premises during a storm, or on an abutting public sidewalk that it has a statutory duty to clear, ‘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 [citations omitted].” Fernandez v. City of New York, 2015 NY Slip Op 01410 (2nd Dept. 2015). See also, Fisher v. Kasten, 2015 NY Slip Op 00491 (2nd Dept. 2015).

Next scenario. It’s Wednesday. You head to the gym in the five o’clock hour to get there as soon as it opens, have enough time to work out, and make it to court at 9:30. It’s dark and not many people are out and about yet. It snowed the prior day and stopped after 11 PM. You slip on a neighbor’s snow and ice covered sidewalk, sustaining serious injuries. New York City Administrative Code § 16-123(a) says the owner, lessee, tenant, occupant, or other person having charge of the building or lot of ground in the city abutting any street where the sidewalk is paved had until 11 AM to clear the snow and ice from the sidewalk. Bi Fang Zhou v. 131 Chrystie St. Realty Corp., 2015 NY Slip Op 00825 (1st Dept. 2015).

The foregoing fact patterns, which are mostly fictional, are here for purposes of illustrating a few points of law which may or may not apply to other situations. Any real case should be considered in totality based on as much information as possible. In conclusion, be careful and clean up walking surfaces. The storm is coming.

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