Storm in Progress – Fall At Your Own Risk (NY)
Under the “Storm in Progress” doctrine, a property owner cannot be held liable for a hazardous condition created by precipitation unless “it had a reasonably sufficient time from the cessation of the precipitation to remedy the condition.”
In O’Sullivan v. 7-Eleven, Inc., a mini-market was able to convince a judge that it had taken all reasonable steps during a storm to defeat a slip and fall claim. The plaintiff was injured when she slipped and fell on an accumulation of slush in front of a counter in a 7-Eleven store, during an ongoing snowstorm. In dismissing the case, the court found that defendants were not required to provide a constant, ongoing remedy for an alleged slippery condition caused by moisture tracked indoors during a storm.
The court was persuaded by evidence that the store had placed out a rain mat and an orange cone on the floor in warning and had mopped the store during the day, including within 15 minutes before plaintiff’s accident. The court found that this proof demonstrated reasonable maintenance measures to prevent such a condition.
The record also showed that defendants did not have constructive notice of the specific wet condition that the plaintiff alleged was dangerous. The fact that it was snowing, with water and slush tracked in, was not sufficient notice of a particular dangerous situation, warranting more than the laying of floor mats.
This case highlights the importance of making a prima facie showing of an entitlement to summary judgment as a matter of law. The defendant might not have such a favorable result without admissible proof of reasonable maintenance measures. When contemplating such a motion, a defendant must be able to call upon evidence such as employee or non-party witness testimony, and good record keeping of the accident report and maintenance logs. It is generally not enough to simply argue that there was a storm in progress, rather proof must be established that defendants did something in response and could prove that it had.
Thanks to Vincent Terraski for his contribution.
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