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April 22, 2024

The Second Department Affirms Successful Storm in Progress Defense of Slip and Fall Case

In Cerar v. Jefferson Val. Mall, L.P.,1 the Appellate Division, Second Department, recently affirmed the lower court’s order granting the defendants’ motions for summary judgment and, in doing so, addressed certain evidence that can establish a storm in progress defense.

In Cerar, the plaintiff allegedly sustained injuries when she slipped and fell on ice in the parking lot of a mall. The plaintiff commenced an action seeking damages from a group of defendants associated with the mall. The defendants moved for summary judgment, asserting the storm in progress defense. Under the storm in progress defense, a property owner will not be held responsible for accidents occurring as a result of the accumulation of snow and ice on its premises until an adequate period of time has passed following the cessation of the storm in order to allow the property owner an opportunity to ameliorate the hazards caused by the storm.

In affirming the lower court’s order, the Second Department concluded that the defendants established their prima facie entitlement to summary judgment as a matter of law by submitting evidence consisting of each of the following: 

  • The plaintiff’s deposition testimony 
  • The report of a meteorologist
  • Certified meteorological records
  • National Weather Service special weather statements 

These were sufficient to demonstrate that ongoing temperature fluctuations and drizzle during the evening formed the ice on which the plaintiff slipped.

While the plaintiff submitted an affidavit from an expert to oppose the motion, the court found the plaintiff’s expert submitted merely speculative evidence theorizing that the icy condition on which the plaintiff slipped was caused by nearby piles of snow that had melted and refroze. The Second Department concluded that this speculative evidence was not enough to raise a triable issue of fact as to whether the storm had stopped at the time of the accident or whether the ice existed prior to the storm.

Key Takeaways

  • Merely speculative evidence is not sufficient to raise a triable issue of fact regarding the storm in progress rule.
  • Rain drizzle and fluctuating temperatures are a sufficient “storm” for the purposes of the storm in progress rule if supported by objective weather data and expert opinions.
  • When faced with a slip and fall claim, especially during the winter months in New York State, parties should evaluate the possibility of a storm in progress defense and work with the appropriate experts and weather agencies to fully support their claims.

If you have questions regarding the content of this alert, please contact Bridget Daley Atkinson, associate, at; Matthew Larkin, Torts & Products Liability Defense Practice Area chair, at; or another member of the firm’s Torts & Products Liability Defense Practice Area.

12024 NY Slip Op 01531 (2nd Dept 2024).

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