Failure To Apply Salt After Snow Removal

Insufficient For Holding Snow Contractor Liable

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 decision which discusses liability for snow and ice removal.

With winter on the horizon, it is useful to refresh ourselves concerning snow and ice removal liability. Often when there is slip and fall on snow and/or ice, the plaintiff seeks to hold the landowner responsible as well as the snow removal contractor. We recently received a decision on a summary judgment case where we represented the snow removal contractor which provides instruction.

In Gilbert v. The City of Rye, the plaintiff sustained personal injuries as a result of a slip and fall on black ice on the sidewalk adjacent to the Presbyterian Church in Rye, New York. We represented the snow removal contractor and moved for summary judgment. In support of our motion, we offered evidence that the Presbyterian Church was responsible for maintenance of the subject sidewalk and that the church hired our client, Alfredo Landscaping (“Alfredo”), as the snow removal contractor. Under the contract, Alfredo was not responsible for incidents involving re-freezing unless he was notified and given adequate time to respond. The building manager of the church testified that he supervised Alfredo’s work and if there was something missing or undone, he would advise Alfredo to come back.

We produced evidence that showed that Alfredo performed snow and ice removal on February 9, 2013, and that James Alfredo returned to the subject location on February 10th to survey the work and determined that the church sidewalk was completely cleared. We produced evidence that the church did not contract Alfredo to perform daily monitoring of the sidewalk. In opposition, plaintiff contended that there was a triable issue of fact as to whether Alfredo launched an instrument of harm in that it failed to put down any salt as part of its snow removal duties. Plaintiff also contended that there was a triable issue of fact as to whether Alfredo failed to continue its snow removal operations in the days prior to the accident even though it was aware that the temperature was fluctuating above and below freezing.

In reply, Alfredo noted that witnesses for the church testified that they applied salt to the sidewalk as necessary once Alfredo had plowed and removed the ice and snow. In addition, the church conceded that it did not request any follow up work from Alfredo in the days before the accident.  The Court granted our motion for summary judgment.

The Court found that the general rule controlled in this case that the breach of a contractor’s contractual obligation does not give rise to tort and liability to others not in privity with the contractor’s control. The Court noted that one exception is where the contracting party, by failing to exercise reasonable care in performance of contractual duties, launches a force or instrument of harm. The Court found however, that the mere omission by the contractor to apply salt without more evidence, could not constitute a launch of a force or instrument of harm for the purposes of liability.

The Court also found that the plaintiffs had failed to present any evidence to support the contention that Alfredo negligently performed its snow removal operations at the church.

Although snow removal contractors may be shielded from liability claims by plaintiffs, property owners can still assert third-party claims against snow removal contractors if the evidence suggests that improper snow and/or ice removal contributed to a plaintiff's accident.

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Thomas M. Bona