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September 14, 2010

Court Applies Storm in Progress Rule to Dismiss Personal Injury Action Involving a Slip and Fall Occurring in the Lobby of a Building

In Assaf v. The City of New York, the New York County Supreme Court recently applied the "Storm in Progress" Rule in the context of a summary judgment motion and determined that it served to suspend the duty to remedy dangerous conditions located inside the lobby of a building because the conditions were created by a storm.

On February 12, 2008, Plaintiff was allegedly injured when she slipped and fell on the wet lobby floor at her workplace. Her fall was caused by an accumulation of water from melted snow tracked into the building. In her Complaint, Plaintiff alleged that the water and melted snow accumulated in the lobby because there were no mats (or other traction devices) placed on the lobby floor.

At her 50-h hearing, Plaintiff testified that when she left the building during her shift, it was snowing, and that when she returned to the building at approximately 2:15 p.m., she fell on the wet floor. She also testified that she saw people entering the lobby with snow on their shoes.

Co-Defendants moved for summary judgment on the grounds that the Storm in Progress Rule should preclude liability (the original motion for summary judgment was made by Defendant City of New York on the grounds that it was an out-of-possession landlord and that the Storm in Progress Rule applied). In opposition, Plaintiff argued that the Co-Defendants should be liable irrespective of a storm in progress because no precautions were taken to protect people from the slippery condition in the lobby. Plaintiff also argued that a Co-Defendant was negligent for failing to follow their own policy of placing mats in the lobby in anticipation of a storm.

In support of their summary judgment motion, the Co-Defendants relied on Plaintiff's 50-h hearing testimony and the certified weather report, which demonstrated "that at 2 p.m. on February 12, 2008, rain, freezing rain, snow, heavy fog, freezing fog, mist and unknown precipitation began to fall and continued to fall on an hourly basis until approximately 5 p.m. on February 13, 2008, and that by the end of February 12, .55 inches of precipitation had fallen and by the end of February 13, 2.49 inches had fallen." This evidence demonstrated that the storm began prior to Plaintiff's fall in the lobby and continued unabated until the next afternoon.

The Court began its analysis by acknowledging well-settled court precedent that an owner or occupant of a building has a duty to remove accumulated ice and snow on the premises, which may be dangerous to those entering the building (or take other measures to ensure safety) "when it has actual or constructive notice of the existence of the condition and a reasonable opportunity to act." In addition, courts have determined that an owner or occupant of a building will not be liable for injuries caused by "icy condition(s) occurring during an on-going storm or for a reasonable time thereafter." In other words, "(e)vidence of a storm in progress constitutes prima facie evidence of the absence of a duty."

The Court cited Pippo v. City of New York, 43 A.D.3d 303 (1st Dep't 2007) in further explaining that the Storm in Progress Rule acts to suspend the duty to correct a dangerous condition caused by an on-going storm:

"the duty to take reasonable measures to remedy a dangerous condition caused by a storm is suspended while the storm is in progress, and does not commence until a reasonable time after the storm has ended."

The Court further noted that this duty does not resume until "the storm has passed and precipitation has tailed off to such an extent that there is no longer an appreciable accumulation."

In granting summary judgment, the Court determined that there was no material issue of fact that there was a storm in progress. The Co-Defendants submitted a certified weather report demonstrating that there was a storm beginning before Plaintiff's fall, which continued unabated into the next day, and Plaintiff did not dispute this evidence. Additionally, it was undisputed that Plaintiff fell during the storm and that the dangerous condition was caused by the on-going storm.

As a result, the Court applied the Storm in Progress Rule in concluding that the Co-Defendants did not have a duty to clear away the accumulated water and melted snow on the lobby floor while the storm was in progress. Therefore, the Court granted Co-Defendants' motion for summary judgment on the well-settled grounds that "there is no liability for injuries sustained in [a] fall due to [a] weather-related condition arising during [a] storm in progress."

Notably, the Court never reached the issue of whether Co-Defendants' failure to follow their policy of placing mats out before an anticipated storm constituted a breach of their duty to ensure the safety of their premises because this duty was suspended.

This case provides a concise example of how defendants can invoke the Storm in Progress Rule to support a successful motion for summary judgment in situations in which plaintiff's injuries were caused by the effects of a storm in progress. In these scenarios, the court will not consider whether defendant breached its duty to maintain a safe premises no matter how egregious (or obvious) defendant's omissions in failing to correct a weather-related dangerous condition appear to be.

If you require further information regarding the information presented in this Legal Alert and its impact on your organization, please contact any of the members of the Practice Area.


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