Does New York’s “Storm in Progress” Rule Apply To Concealed Hazards?
January 28, 2022
<p style="text-align: justify;">In New York, when a plaintiff is injured due to a slip and fall on snow and ice, a landowner’s duty to take reasonable measures to remedy a dangerous condition caused by a storm is suspended while the storm is ongoing until a reasonable time after the storm has ended. It is also well settled that the New York City Administrative Code Section 7-210 imposes tort liability on property owners who fail to maintain city-owned sidewalks in a reasonably safe condition, but the Court of Appeals has held that a tree well is not part of a sidewalk under this Section.</p>
<p style="text-align: justify;">The First Department recently addressed these holdings in deciding whether a homeowner was exempt from liability where a tripping hazard from a tree well was concealed by an ongoing snowstorm. In <em><a href="https://www.wcmlaw.com/wp-content/uploads/2022/01/Kovel-v.-Glenwood-Mgmt.-Corp..pdf">Kovel v. Glenwood Mgmt. Corp.</a></em>, 200 A.D.3d 460 (1st Dep’t 2021), the plaintiff tripped and fell on a stone tree well border on a sidewalk abutting a building owned by defendants. Plaintiff’s accident occurred at night during a snow fall. Plaintiff claimed that her accident occurred because the border surrounding the tree well was an inherently dangerous condition that was neither open nor obvious at the time of her fall because it was covered in snow from the storm.</p>
<p style="text-align: justify;">The trial court denied defendants’ motion for summary judgment and First Department reversed, holding that the claims against the defendants should be dismissed. The court found that defendants established that the tree well border was not an inherently dangerous condition and that plaintiff failed to rebut defendants’ meteorological proof establishing that there was a storm in progress at the time of her fall. Accordingly, the court held that there was no duty to remove the snow at the time of the accident because “when the accumulation of snow is the reason for liability there is no basis to limit the storm in progress doctrine to only icy conditions.”</p>
<p style="text-align: justify;">The <em>Kovel</em> case makes it clear that the “storm in progress” rule can protect a landowner from liability where an accident occurs during a storm, even where snow from a storm creates or conceals a potentially dangerous condition.</p>
<p style="text-align: justify;">Thank you to Gabriella Scarmato for her contribution to this post. Please contact <a href="mailto:firstname.lastname@example.org">Andrew Gibbs</a> with any questions.</p>