Complete Defense:
Storm in Progress Doctrine Bars Plaintiff’s Suit
As part of our continuing commitment to provide outstanding
representation and to serve as an information resource, we wish to inform you
of a recent case concerning the storm in progress defense.
Given the recent snow which we have experienced, we thought
it would be useful to review a defense which can be used to bar slip and fall
lawsuits which arise out of snow and ice storms. The storm in progress
defense is based on the principle that there can be no liability for injuries
related to falling on snow or ice until after a storm has ceased in order to
allow a reasonable period of time to clean the area in question. A recent
case in which we defended an apartment complex demonstrates the application of
this doctrine.
In Caraballo v. Garden Communities, plaintiff slipped and
fell at approximately 7:30 p.m. as she was walking in a parking lot of her
housing complex that we defended. The plaintiff alleged that she slipped on
black ice. The building superintendent testified that between 7:00 a.m. and
10:00 a.m. on the day of the accident he spread salt in the parking lot between
the buildings in question due to misty rain and cold temperatures. He testified
that he did this in order to prevent ice.
We moved for summary judgment based upon the storm in progress
doctrine as well as plaintiff’s failure to demonstrate actual or constructive
notice. We presented the affidavit of a certified meteorologist who testified
that a storm was in progress on the date in question and that precipitation
fell in the area of the accident from 2:30 a.m. through 7:00 a.m. and then from
7:00 a.m. to 11:00 a.m. with freezing drizzle from 3:55 p.m. to 10:52 p.m. The
accident which was alleged to have occurred at 7:36 p.m. The meteorologist
established that at 7:36 p.m. freezing drizzle was falling, the temperature was
33° and that ice/glaze was present on the ground as a result of the winter
storm that was still in progress at that time.
The Court granted our motion for summary judgment and found
that the storm in progress defense barred the plaintiff’s suit. The Court noted
that the storm in progress rules is designed to relieve owners of any
obligation to clear walkways and other areas while precipitation continues
which would render the effort fruitless. The Court wrote that when the evidence
in the record is clear that the accident occurred while the storm was still in
progress, a prima facie case for dismissal is made as a matter of law.
The Court concluded that the evidence that we presented was especially
persuasive because it was based upon the analysis of a licensed meteorologist.
The Court also noted that even a temporary lull or break in the storm at the
time of the accident would not establish a reasonable opportunity to clear away
the hazard. Thus the motion was granted and the complaint was dismissed.
Obtaining weather records when there is a slip and fall on
ice and snow can help establish when there was snow prior to the accident and
whether there is a storm in progress defense. It is truly a small investment
which can provide great benefits in successfully dismissing cases.
Should you have any questions, please call.
Thomas M. Bona
