Slip & Fall Shows a Mountain of Triable Issues of Fact (NY)
In Jubie v. Emerson Management Enterprises, LLC, (3d Dept. 2020), a plaintiff slipped and fell on an icy parking lot in Ulster County, NY. Plaintiff commenced an action against the management company for the parking lot, and subsequently named Kenneth Umhey in her action, because he provided snow removal services for the parking lot under contract with the management company. Umhey moved for summary judgment arguing that his snow contract with the management company did not allow plaintiff to sue him directly. He also submitted testimony that he did remove the snow to certain piles on the parking lot.
The Third Department affirmed the denial of request for summary judgment rejecting his two arguments. The court held that a third-party cannot find liability for tort under the terms of a contract that it was not party to, unless a contracting party fails to show reasonable care in the performance of its duties and “launches a force or instrument of harm.” In this respect, Umhey failed to submit sufficient evidence that he used reasonable care in the clean-up of the snow in the parking lot. Umhey testified that he pushed the snow toward the edge of the parking lot that ran downhill from the street. The plaintiff testified that she saw a mountain of snow in the parking lot and the melting water was running to the drain located in the middle of the parking lot. The court found triable issues of fact as to whether Umhey should have known that the mountain of snow would melt, and the water would run off toward the drains into the middle of the parking lot. There were also triable issues of fact as to whether the water run off frozen over.
This case highlights the court’s ability to find triable issues of fact in the smallest details of a defendant’s argument. All property management companies, and snow removal companies should be wary of any piles of snow in their parking lots. Simply salting and removing snow does not shield either of these parties from liability under certain circumstances.
Thanks to Raymond Gonzalez for his contribution to this post. Please contact Heather Aquino with any questions.