Case: Plaintiff’s Slip and Fall on Ice During Ongoing Freezing Rain Storm
Counsel: Robert Von Hagen
Result: Appellate Court Reverses Denial of Summary Judgment Motion and Dismisses Case
MSD recently won a reversal in the Appellate Division of a decision that denied summary judgment to our client, the owner and manager of a residential apartment building in the Bronx. The plaintiff alleged she slipped and fell on a thin, glaze of “watery” ice when she exited her apartment building for the first time on a day when it had rained and snowed earlier in the day. She testified that it was not raining or snowing at the time of the fall. However, we presented certified weather records, the affidavit of an expert meteorologist, photographs, and testimonial evidence all establishing that there was an ongoing storm of freezing rain occurring in the area at the time. We argued that our client’s superintendent had properly cleared and cleaned the area earlier and did not cause or exacerbate any dangerous condition that was not the natural result of the ongoing storm. The Court agreed that plaintiff’s testimony that it was not snowing, and her counsel’s speculation that the superintendent’s earlier snow removal efforts were negligent, were insufficient to rebut defendant’s proof.
Supreme Court denied our motion, but the Appellate Division reversed following briefs and argument by Attorney Von Hagen. Since the plaintiff fell during an ongoing storm, then the “storm in progress” doctrine applied and suspended our clients’ duty to maintain the area until after a reasonable time passed since the cessation of the storm.