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As we head into summer, snow, ice and similar potentially hazardous conditions may be far from your thoughts. Yet, it is never too soon to prepare. Here are a few important tips we all should remember when defending slip-and-fall cases in New York.

Tip #1 – Plaintiff must identify the defect without speculation.

Section 7-210 of the New York Administrative Code imposes a legal duty on real property owners to “maintain the sidewalk abutting their property in a reasonably safe condition.” Sangaray v W. Riv. Assoc., LLC, 26 N.Y.3d 793, 797 [2016].  However, Courts have made clear that “the mere fact that an accident occurs does not mean that a defendant is liable unless the plaintiff can show how the defendant’s breach of some duty caused or contributed to the plaintiff’s mishap.” Georgas v. Mays Department Stores, Inc., 299 A.D.2d 314, 314 [2d Dept. 2002]. Rather, the plaintiff maintains the burden to “demonstrate the existence of a dangerous or defective condition that caused his or her injuries.” Robert v Mahopac Cent. Sch. Dist., 38 A.D.3d 514, 515 [2d Dept. 2007].  It is also incumbent upon the plaintiff to provide testimony that he or she can identify the defect that caused his or her injury with specificity.  Failure to do so is fatal to the plaintiff’s case.  Siegel v. City of New York, 86 A.D.3d 452, 454, [1st Dept. 2011].

Tip #2 – Evidence of the exact location of the accident can make or break the plaintiff’s case.

Generally speaking, Section 7-210 of the New York Administrative Code shifted tort liability for injuries arising from a defective sidewalk from the City of New York to the abutting property owner.  However, there are certain exceptions.  For example, neither a curb or a tree well fall within the applicable Administrative Code definition of “sidewalk.” Consequently, courts have repeatedly found that “section 7-210 does not impose civil liability on property owners for injuries that occur in city-owned tree wells.” Vucetovic v. Epsom Downs, 10 N.Y.3d 517, 521 (N.Y. 2008); see also Alexander v City of New York, 118 A.D.3d 646, 647 [2d Dept. 2014]; Vigil v. City of N.Y., 110 A.D.3d 986, 987 [2d Dept. 2013].

Tip #3 NYC Administrative Code Section 16-123 gives landowners time to remove snow from the sidewalk after a storm.

It is well settled that a landowner remains entitled to a reasonable amount of time to address storm-related snow or ice conditions on its property subsequent to the cessation of a storm and is not required to take any corrective actions while a storm is still in progress.

NYC Administrative Code § 16-123, which is entitled, “Removal of snow, ice and dirt from sidewalks; property owners’ duties” states in relevant part as follows:

  1. Every owner, lessee, tenant, occupant, or other person, having charge of any building or lot of ground in the city, abutting upon any street where the sidewalk is paved, shall, within four hours after the snow ceases to fall, or after the deposit of any dirt or other material upon such sidewalk, remove the snow or ice, dirt, or other material from the sidewalk and gutter, the time between nine post meridian (9:00 pm) and seven ante meridian (7:00am ) not being included in the above period of four hours. …. if such person shall have begun to remove the snow or ice from the sidewalk and gutter before the expiration of such four hours and shall continue and complete such removal within a reasonable time.
  2. In case the snow and ice on the sidewalk shall be frozen so hard that it cannot be removed without injury to the pavement, the owner, lessee, tenant, occupant or other person having charge of any building or lot of ground as aforesaid, may, within the time specified in the preceding subdivision, cause the sidewalk abutting on such premises to be strewed with ashes, sand, sawdust, or some similar suitable material, and shall, as soon thereafter as the weather shall permit, thoroughly clean such sidewalks.

It should be noted that this rule applies within the boroughs of the City of New York.  However, it is generally accepted that under the “storm in progress” rule “a property owner will not be held liable for accidents occurring as a result of the accumulation of snow or ice on its premises until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm.”  Marchese v. Skenderi, 51 A.D.3d 642, 642 [2d Dept. 2008]; Dowden v. Long Island Rail Road, 305 A.D.2d 631, 631 [2d Dept. 2003].

Furthermore, “a lull in the storm does not impose a duty on the owner to remove the accumulation before the storm ceases in its entirety.” Dowden at 632.

As these cases and code sections demonstrate, the plaintiff must prove a lot more than the fact that he or she fell on the landowner’s property and was injured. Keep these issues in mind when defending against a slip-and-fall case.

Jody C. Benard is a seasoned litigator and trial lawyer whose practice focuses on labor law, products liability, general liability and insurance coverage matters.  She is a Partner and the New York Team Leader of the Insurance Defense Practice Group for Hickey Smith Dodd LLP, a process and data driven law firm that is designed to deliver legal services with more value.

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