Proving Liability In Snow And Ice Cases
Buffalo, New York is generally known to most non-residents as the snow capital of the northeast. Given this reputation, it would stand to reason that slip and fall cases involving snow and ice are commonplace, and establishing liability is a simple task. This notion however, is far from reality. Snow and ice cases, like all premises liability cases, require careful attention to detail on a variety of issues in order to successfully establish liability.
As is usually the case, diligence and attention to detail in snow and ice cases to is key. In a region infamous for its icy weather many defense attorneys are prepared to handle slip and fall cases. For this reason it is particularly important for plaintiffs to engage in early investigation and formulate a strategy early on for discovery when looking to hire a Buffalo personal injury attorney.
Below is a practical guide to proving liability in snow and ice cases.
Basic Principles/Elements of Premises Liability Cases:
When a plaintiff is injured because of an unsafe condition on another’s property, in order to establish liability plaintiff must show 1) plaintiff was lawfully on defendant’s property, 2) defendant created an unsafe condition on the property, or 3) defendant was negligent in dealing with the unsafe condition on the property- that is, that defendant knew or should have known about the dangerous condition on the property and failed to repair it, through repair made the condition worse, or failed to warn of the condition, and 4) the defendant’s negligence resulted in injury to the plaintiff.
In slip and falls that involve snow and ice the same basic principles apply. Plaintiff must establish that the defendant either created a dangerous condition or was negligent in dealing with the dangerous condition created by the snow or ice by showing defendant had actual or constructive notice of the dangerous condition, and defendant failed to remedy the dangerous condition.
Ownership/Control of the Property:
In any premises liability case, the first step in proving liability is establishing that the defendant owned, occupied, controlled or had special use of the property on which the dangerous condition existed.
This can be established using local property tax records or a simple parcel search. Regarding individual stores, plazas, or shopping malls, it is necessary to establish not only who owns the property, but also who occupies the property, and/or who controls the property, as these may not be the same parties.
Central to a premises liability case is the existence of a dangerous condition. Generally, failure to establish the cause of a plaintiff’s injury is fatal to a claim of negligence. In New York, if a plaintiff cannot identify the cause of his fall, his claim will fail. Therefore, it is imperative that plaintiff identify exactly what caused his fall immediately following the fall.
In order to create a dangerous condition a landowner must engage in active, affirmative conduct that is distinguishable from passive conduct or neglect. The idea being that the landowner can be held liable as the affirmative creation of a dangerous condition violates the landowner’s duty of reasonable care. If it is established that defendant created the dangerous condition, then notice need
Actual or Constructive Notice:
One challenge in slip and fall cases involving snow and ice is establishing actual or constructive notice. Generally, a condition created by precipitation must be remedied within a reasonable time of receiving actual or constructive notice of the condition. This duty generally extends to walkways, entranceways, and parking lots.
Actual notice requires that the landowner is informed that a dangerous or defective condition exists on the property. This notice may be wither written or oral. Actual notice triggers the landowner’s duty to remedy the dangerous condition.
Aside from affirmatively creating the dangerous condition or having actual notice of the condition, a landowner may have constructive notice of the dangerous condition. Constructive notice occurs when a dangerous condition has existed on the premises long enough that the landowner knew or should have known, through the exercise of reasonable care, of the condition’s existence and taken steps to remedy it. In cases involving snow and ice, questions regarding constructive notice will include the length of time the condition existed, the weather conditions necessary to create the condition, and if the weather conditions were such that the landowner had constructive notice that a dangerous condition might exist.
Landlords v. Tenants:
Issues of liability hinge on establishing control over the subject premises. When dealing with property that is leased, in some states such as NY, the lessee of an entire building stands in the same position as the property owner. Whereas, an individual lessee who only leases a portion of the subject property from the property owner will only be liable for the portion of the property he leases. In NY, a lessee is not responsible for any portion of the property outside of the leased premises as the lessee has no right of possession, maintenance, or control beyond the leased area.
In some states, a tenant remains responsible for a dangerous condition on a demised premises even if the lease states that responsibility remains with the landlord. This principle generally applies where the tenant negligently modifies the premises, negligently places displays on the premises, or engages in improper cleaning which creates the dangerous condition.
When dealing with a premises liability case involving a tenant or lessee, it is important to obtain a copy of the lease which governs the premises where the fall occurred in order to determine who should be held liable (i.e. the landlord or the tenant/lessee).
Know who your plaintiff is:
A person in possession or control of a premises owes a duty of reasonable care to the people who come onto his premises. The extent of that duty generally depends on whether the person who comes onto the land is a trespasser, licensee (social guest), or invitee (customer). There is not a significance difference in the duty owed to a licensee versus the duty owed to an invitee, as the law of negligence address both broadly in premises liability cases. However, it is important to consult the specific state statutes pertaining to premises liability to determine the distinctions between the classifications and how those distinctions impact the landowner’s potential liability or defenses.
Identify all Potential Defendants (before depositions):
In a premises liability case there can be a number of potential defendants depending on where the dangerous condition was located. These include the property owner, the tenant or lessee, the property manager or management company, and third party snow removal companies.
Issues to consider when dealing with multiple defendants include: privity of contract, indemnification, and particular state exceptions or restrictions relating to filing suit against multiple parties.
3rd Party Snow Removal:
Generally, where a property owner hires a contractor for snow removal, the contractor usually does not owe a duty of reasonable care to plaintiff to prevent foreseeable harm. An exception to this however, is where the contract between the property owner and third party contractor creates a comprehensive and exclusive property maintenance obligation that is intended to displace the landowner’s duty to maintain the property in a safe condition. Where any contract exists, it is necessary to obtain the contract and determine the conditions under which the contractor was expected to perform. Usually, such contracts will indicate a minimum snowfall that must occur before maintenance is required or establish a means of notifying the 3d party contractor that snow removal and/or salting is required on the premises. In most cases, such contracts do not establish comprehensive and exclusive responsibility of the contractor to maintain the property. Particularly where the landowner retains a duty to inspect the property and decide whether conditions requiring plowing and/or salting.
It is important to note, however, that a contractor may be liable for injuries of a third party where the third party detrimentally relies on the contractor’s continued performance under the contract or if the actions of the contractor launch a force or instrument of harm.
Where a third party snow removal contractor or company is hired, it is important to collect all pertinent salting records and plowing records for the subject premises, along with the actual snow removal contract.
Defenses- Storm in Progress:
A majority of courts have ruled that it is unreasonable to expect a property owner to remedy dangerous conditions created by a storm while the storm is still in progress. Therefore, a property owner need not normally remove ice and snow until the cessation of the storm.
Some municipalities may allot a specific time frame for snow removal following a storm. Generally, a reasonably sufficient amount of time must elapse after the cessation of snowfall to enable the property owner to take remedial action. Certified climatological data, as well as expert testimony, is necessary to rebut the storm in progress defense. Such climatological data should be for the specific geographic area when the incident occurred and be as close in time to the incident as well.
Where the storm in progress defense is raised, plaintiff must be prepared to show that no storm was occurring at the time of the incident and that a sufficient amount of time had passed since the cessation of the storm to allow the defendant to remedy the dangerous condition created by the storm. What constitutes a “reasonably sufficient” amount of time is dependent on individual state case law and/or any controlling statutes.
Identifying and Preserving the Dangerous Condition:
One obvious issue in a premises liability case involving snow and ice is that these conditions do not last forever. Therefore, early investigation is key in establishing liability. It is imperative that the dangerous condition that caused injury be identified and recorded as soon as possible. When a plaintiff presents to your office following a slip and fall, perform a site inspection immediately, preferably with the plaintiff. Take photos and video of the premises, identifying exactly where the plaintiff’s injury occurred. If possible, photograph or videotape neighbors, or neighboring property to document the conditions of their property as well.
An essential part of any premises liability case is retaining the appropriate expert. In ice and snow cases, a television meteorologist is an ideal expert. These individuals not only possess the necessary expertise to establish liability, but also usually excel at teaching a jury about the weather conditions at the time of the incident. If possible, obtain your expert early, preferably within one week of the incident, and record a video statement of the expert explaining the weather conditions at the time of the incident. It is likely that defense counsel will not seek to obtain a weather expert until trial, which could occur more than a year after the underlying incident. By obtaining your expert early and preserving his testimony right away, your expert will demonstrate a greater level of expertise because his opinion was given closer in time to the date of injury.
In cases involving slip and falls on property owned by a municipality, constructive notice is generally insufficient. Here, actual written notice is statutorily required as a condition precedent to liability. This is particularly difficult in snow and ice cases as the dangerous condition that results from an accumulation of snow or ice is generally temporary and actual notice cannot always be effectively given to the municipality.
What specific areas notice requirements apply to will depend on the laws of that municipality. Some municipalities extend prior written notice requirements to highways, bridges, culverts, and sidewalks, while others neglect sidewalks completely.
Prior written notice of a dangerous condition caused by snow or ice usually must be affirmatively plead in the plaintiff’s complaint against the defendant municipality. Where the defendant is a municipality it is essential that the plaintiff attempt to obtain all evidence of prior written notice for the area in which the slip and fall occurred.
There are some established exceptions to prior written notice requirements. The first exception applies where the municipality affirmatively creates a dangerous condition, such as a snow or ice hazard. This may occur where a municipality clears an area and salts it, causing snow to melt and freeze over, creating an icy condition. The second exception occurs where the municipality derives special use from the area where the dangerous condition arises, such as a municipally owned parking facility.
It is important when researching these exceptions that particular attention is paid to how the court distinguishes between active conduct of a municipality versus passive conduct or omissions.
“Black Ice” and why it should never be mentioned, ever:
The term “black ice” generally implies that the icy condition was not visible and apparent to the plaintiff. By definition, “black ice” is not “readily observable.” This creates a serious challenge for plaintiffs. The perils of claiming plaintiff slipped and fell on “black ice” not only creates a difficulty in plaintiff identifying what it was that caused his fall or where the fall occurred, but also supports the defendant’s argument that no actual or constructive notice existed at the time of the fall. Put simply, if the plaintiff could not see the dangerous condition which caused his fall, how could the defendant see the same dangerous condition in time to remedy it?
Whenever possible, the plaintiff should attempt to pinpoint the exact location of the fall and give a clear description of the conditions of the premises when the fall occurred. This includes a physical description of the ice as the plaintiff observed it. Establishing a clear description of the ice, including the size, length, width, and location of the ice, and remaining consistent in that description throughout the pleadings, and depositions is essential.
If it is not at all possible for the plaintiff to clearly identify what caused his fall or describe the physical appearance of the ice, it may be possible to establish actual or constructive notice based on the weather conditions as they existed at the time. However, this is a long shot. Essentially, such an argument requires expert testimony and climatological data which supports that weather conditions were such that black ice could or would have formed. Further, additional deposition testimony and evidence regarding the conditions of the premises before and after the incident would also aid in establishing actual or constructive notice. Finally, any eye witness testimony or additional reports regarding other individuals falling at or near the same area on the same day would also support the argument that a landowner had actual or constructive notice.
Actual notice of a recurring condition may also support liability of landowners in cases involving “black ice.” However, when possible the term “black ice” should be avoided entirely and instead plaintiffs should attempt to give a complete description of the icy condition in order to establish that the ice was visible and apparent at the time of the fall.
Deposition Questions & Demands for Documents:
Knowing your case, including your experience with defense counsel or defendants themselves, should be considered when determining what documents you want to request in discovery and when to make such requests. Many times it is advantageous to intentionally avoid making certain document demands until after depositions have taken place in order to avoid unintentionally educating defense counsel.
In premises liability cases it is usually necessary to depose the maintenance supervisor or person charged with overseeing the operations of the subject property. During depositions the following questions, listed below, serve as a helpful guide in determining the policies and procedures in place for addressing conditions created by snow and ice on the subject premises. After these questions have been asked in depositions a demand for specific documents related to the elicited answers is usually appropriate.
These questions include:
What policies or procedures, either written or verbal, are in place to monitor the weather?
What policies or procedures, either written or verbal, are in place to monitor the temperature outside?
What policies or procedures, either written or verbal, are in place to monitor the amount of snowfall on the property?
(Depending on the answer given in question number 3) What policies or procedures, either written or verbal, are in place to contact the snow removal contractor?
What policies or procedures, either written or verbal, are in place to salt the property?
What policies or procedures, either written or verbal, are in place to plow the property?
What policies or procedures, either written or verbal, are in place to walk the property including lots, common areas, and sidewalks.
What policies or procedures, either written or verbal, are in place to determine the number of times per day weather conditions should be checked?
What policies or procedures, either written or verbal, are in place to determine the number of times per day someone must walk the property to observe the condition of the property?
What policies or procedures, either written or verbal, are in place to notify the third party snow removal contractor?
What policies or procedures, either written or verbal, are in place to oversee the work of the third party snow removal contractor?
What policies or procedures, either written or verbal, are in place to record when the property is salted?
What policies or procedures, either written or verbal, are in place to record where the property is salted?
What policies or procedures, either written or verbal, are in place to record when the property is plowed?
What policies or procedures, either written or verbal, are in place to record where the property is plowed?
What policies or procedures, either written or verbal, are in place to record the temperature at certain times of day outside?
What policies or procedures, either written or verbal, are in place to monitor the condition of the property at certain times of day outside?
Beyond questions addressing policy and procedure another effective form of questioning in a slip and fall case, particularly when deposing a maintenance supervisor, is concession questioning. These questions are deigned to elicit concessions from the witness on what appear to be benign issues, but in reality provide excellent material for cross examination at trial. Ideally, these types of questions are asked early on, even before the standard background and informational questions typically asked of a witness.
Some specific examples include:
You would agree with the proposition that any risk of serious bodily injury or death is always unacceptable if reasonable means could have been used to minimize or eliminate the danger?
You would agree that “It’s better to be safe than sorry”?
You would agree one should inspect for dangerous conditions?
You would agree that if a dangerous condition is discovered one should eliminate that hazard if reasonable possible?
You would agree that if you can’t eliminate the danger then you should install protective devices around it if possible?
You would agree if one can’t eliminate the danger or protect against it, then one must give warnings of the danger so people will know?
You would agree that “appearances are often deceiving” and individuals on the property might not recognize a danger unless they are warned about it?
You would agree that an inadequate warning is equal to no warning at all?
Generally, the best practice is to wait to request policy and procedure documents until after depositions are complete in order to avoid educating the maintenance supervisor, or any party, before the deposition. This ensures that the answers given by the maintenance supervisor are more honest or less rehearsed, particularly where concession questions are concerned.
Though this guide provides a practical analysis of how to prove liability in snow and ice cases, it is only the tip of the iceberg. Speed and efficiency are key because as the snow melts, so do a plaintiff’s chances of recovery. Utilizing this guide as a starting point, a diligent advocate should have all of the tools necessary to recover a favorable judgment that adequately compensates an injured plaintiff for the negligence of a defendant landowner.