The New York Supreme Court, Appellate Division, Fourth Department upheld a jury verdict that found the City of Dunkirk Housing Authority liable for a slip & fall accident that occurred one icy winter day.
The City of Dunkirk Housing Authority owns a residential facility that is open 24 hours a day. Residents leave and return to the building at all hours. In addition, visitors and healthcare workers can visit the building before 8:00 a.m. and after 4:30 p.m. However, maintenance for the facility only works between 8:00 a.m. and 4:30 p.m. If something happens after 4:30 p.m. that requires maintenance, maintenance will not attend to the situation until the next day after 8:00 a.m.
During the winter, a patch of ice formed on the sidewalk in the early morning. The plaintiff, a visitor to the facility, slipped and fell on the ice patch, sustaining injuries. She brought a personal injury lawsuit against the City of Dunkirk Housing Authority. The case proceeded to trial. At the end of the defense’s case, the defendant moved for a directed verdict under CPLR 4401.
CPLR 4401 states that if the trial judge determines that there is no way that a juror could find for the plaintiff, the judge must direct the verdict in favor of the defendant. The judge is to view the evidence in the light most favorable to the plaintiff.
The defendant argued that the plaintiff had not proved that the defendant had the opportunity to fix the alleged ice patch. The trial judge rejected the argument, and the jury returned a verdict in favor of the plaintiff.
The Fourth Department affirmed this verdict. Under premises liability, a property owner is responsible for maintaining property in a safe condition. If a dangerous condition or defect exists that the property owner is aware of, the property owner is liable for any foreseeable injuries caused by that dangerous condition.
However, with weather emergencies, the property owner is given a reasonable amount of time to fix the dangerous condition. If a blizzard is raging outside, creating ice-covered stairways, a landlord is not required to scrape the ice off in the middle of the storm. The landlord is given a reasonable amount of time following a snow storm to fix the dangerous condition.
In premises liability cases involving weather issues, meteorologists testify about weather patterns and conditions. In this trial, two meteorologists likely testified – one for the plaintiff and one for the defense. Each expert witness possibly testified about (1) what the weather conditions were like that day, (2) whether those weather conditions would have caused the dangerous condition – the ice, (3) when the ice formed and how long it was there prior to the accident, and (4) whether the ice caused the accident.
In this case, the plaintiff fell around 8:00 a.m. The expert testimony showed that the ice had formed some 8-to-12 hours prior to the fall. Because of the maintenance schedule, the ice had been left there over night, untreated despite the large number of individuals entering and exiting the building.
To prove that the defendant had not been given a reasonable amount of time to remedy the ice puddle, the defendant would have to establish “that the ice formed so close in time to the accident that [it] could not reasonably have expected to notice and remedy the condition.” The defendant failed to establish this. As such, the denial of the motion was proper.
The defendant also made a series of other arguments in its appeal. However, because they were not raised at trial during the motion for directed verdict, the Fourth Department refused to consider them. If you wish to make any arguments on appeal, you must preserve them at trial.
If you or a loved one has been the victim of a slip & fall accident, our excellent personal injury attorneys can advise you on how to seek full compensation for your injuries. Contact Gallivan & Gallivan today to discuss your potential claims.
Shelters v. City of Dunkirk Housing Authority, 127 CA 14-00358 (4th Dept. 2015).