Supreme Court:
General Awareness Of Snow And Ice On Pathway Not Enough
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 a Supreme Court decision on general awareness of snow and ice conditions.
As Fall passes and winter looms, there will once again be snow, ice and precipitation which will lead to slip and fall accidents. Although each year is different, and the number of storms can never be predicted, it is certain that there will be incidents where plaintiffs slip and fall on snow and/or ice and later commence suit. A recent case we successfully defended for a homeowners association illustrates some fundamental principles.
In Carozza v. Patterson Village Condominiums Homeowners Association, Inc., the plaintiff, on the morning of the accident, looked outside her window and noticed that it was raining. She could not tell if it was freezing rain and saw her vehicle parked in the handicapped parking space outside her unit. Plaintiff testified that the ground looked normal. Approximately a half-hour later, plaintiff walked out of her unit, walked across the concrete breezeway and stepped out onto the blacktop pathway that led to her vehicle. The plaintiff noticed that it was raining but not sleeting. The plaintiff took one step with her right foot onto the blacktop when she slid and fell backwards. Plaintiff did not see the ice that caused her to fall prior to stepping onto it. However, after she fell, she noticed that the ice felt hard and slippery and that it looked hard, shiny and clear. Plaintiff thereafter commenced suit alleging that the Patterson Village had created the icing condition by failing to remove snow and ice from the parking lot and failing to apply salt and sand. Plaintiff also claimed that the Patterson Village had notice of the condition and failed to remedy it or warn the plaintiff of the dangerous condition.
Thereafter, Patterson Village moved for summary judgment arguing that they were insulated from liability because of the "storm in progress" rule. That rule provides that property owners will not be held liable for accidents occurring on a property as a result of an accumulation of snow and/or ice, until a reasonable time has passed following the cessation of the storm within which the owner has the opportunity to ameliorate the hazards caused by the storm. Overtime, the storm in progress defense has evolved to include conditions caused by sleet and/or freezing rain. Patterson Village submitted certified climatological data showing that a storm was in progress at the time of plaintiff's fall and that the icing condition which caused her fall, developed during that storm. In addition, Patterson Village argued that the defendant did not create the alleged icy condition nor did it have actual or constructive knowledge of its existence with a sufficient time to remedy it.
Patterson Village submitted evidence that temperatures on the morning of the accident ranged from 37ºF to 32ºF and did not dip below 32ºF until minutes before plaintiff's fall. Thus, Patterson Village argued that the subject ice could have easily been formed mere minutes before the plaintiff's fall. The plaintiff was unable to state how long the ice existed prior to her fall and testified that she looked out the window at the ground and that it looked normal. Patterson Village argued that any conclusion as to how long the ice existed prior to plaintiff's fall would be pure speculation and insufficient to defeat their motion for summary judgment.
The Court granted Patterson Village's motion for summary judgment. The Court found that the plaintiff had not come forward with proof that would raise a material issue of fact. The Court found that at most, the testimony and proof proferred by plaintiff establishes "defendants generalized awareness of an icing condition at the 98 unit condominium complex and not necessarily at the location of and time of the accident."
In addition the Court noted that the plaintiff admitted that the ice on which she claimed that she fell, was difficult to see having been described as clear over blacktop. Thus, the Court granted the motion for summary judgment and dismissed the complaint.
The Court also found that the storm in progress defense would have also insulated the condominium complex from liability. Obviously, it is always important to review the weather conditions at the time of the accident and if making a motion for summary judgment, it is necessary to have certified weather records for the time of the accident so as to be able to use the "storm in progress" defense.
Should you have any questions, please call.
Thomas M. Bona
