The Supreme Court of New York, Appellate Division, First Department has reversed an order issued by the Supreme Court for New York County that granted the City of New York’s motion for summary judgment and dismissed the plaintiff’s complaint that an icy patch caused her to fall and injure herself.
On December 23, 2008, the plaintiff was walking on a public sidewalk when she slipped on some ice and fell. She later filed a lawsuit against the City of New York, alleging the City failed to timely clear the sidewalk of ice in order to prevent her fall. The City filed a motion for summary judgment to dismiss the complaint.
As a matter of law, a motion for summary judgment will only be granted if no genuine issue of material fact exists that needs to be decided by a jury. In its motion, the City argued several things. First, the City argued that the plaintiff contradicted herself in her affidavit and her deposition regarding what exactly she slipped on. At her deposition, the plaintiff described the ice as “dirty” with “snow layers on top of layers.” The plaintiff later clarified in her deposition that the ice was “slushy ice” that was “clean, like slippery, flat” with a little snow on top. However, in an affidavit submitted in opposition to the City’s motion for summary judgment, the plaintiff stated that the ice was “one inch thick, flat, hard, and dirty, as if it had existed for several days.” The appellate court held the deposition was not inconsistent with the affidavit. In addition, the appellate court held it generated a dispute of fact that needed to be tried, not decided on a motion for summary judgment.
Second, the City argued that it did not have a sufficient amount of time prior to the fall to clear the ice off of the sidewalk. The appellate court has held previously that snow and ice left on a sidewalk following a storm creates an “unusual and dangerous condition” and that it is the responsibility of the City, if a public sidewalk, to clear the sidewalk of snow and ice within a reasonable amount of time following a storm. Interestingly, the City claimed in its motion for summary judgment that it routinely clears streets after a snow storm but is not in the habit of clearing sidewalks. Regardless, the appellate court held that whether the duty to clear the sidewalk after the storm was triggered was a triable issue of fact that could not be decided on a motion for summary judgment.
In its motion, the City included no affidavit of an expert witness such as a meteorologist. Rather, the City’s attorney made broad, sweeping conclusions about the weather. However, the parties did agree about the nature of the weather. On December 19th, four inches of snow fell. On December 20th, 0.5 inches of snow fell. On December 21st, 0.2 inches of snow fell. On December 21st after the snowfall, non-freezing rain then fell, and the temperatures hovered above freezing. On December 23rd, the average temperature was 21 degrees and never went above freezing. The City argued that the ice had formed only 48 hours before the fall but provided no analysis of the weather data to support this conclusion.
In her opposition, the plaintiff demonstrated there was a triable issue of fact regarding the source of the ice. Using the expertise of a meteorologist, the plaintiff argued that the ice came from the snow storm on December 19th, four days before the fall. The meteorologist opined that the non-freezing rain storm could not have caused any ice due to the high temperatures.
Because summary judgment on a snow or ice case requires both climatological data and expert opinion, the defendant’s motion for summary judgment failed. Therefore, the lower court erred in granting the motion. The lower court’s order is reversed, and the complaint is reinstated.
If you or a loved one was injured in a slip-and-fall after a storm, please contact the New York slip-and-fall expert attorneys at Gallivan & Gallivan to discuss your case today.