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Appellate court denies summary judgement in a “storm in progress” case. Powell v. MLG Hillside Associates, L.P., 290 A.D.2d 345, 737 N.Y.S.2d 27 (N.Y. App. Div. 2002)


On March 7, 1999 at 9:15am, the plaintiff slipped and fell in the snow in front of her apartment building, injuring her ankle.  In the hours preceding her fall, there was a snow storm with about two inches of snow accumulating.

The plaintiff filed a personal injury lawsuit against her landlord based on premises liability.  The defendant filed a summary judgement motion, arguing that at the time that the plaintiff fell, because the snow was still accumulating, they had no duty to clear the snow.

Storm in progress doctrine
Under a premises liability theory, property owners are required to take reasonable steps to keep their property safe and free from hazards. This extends to clearing snow.  Property owns are liable for injury that result from their failure to do so.

An exception to this general rule is the “storm in progress” doctrine.  Under this doctrine, a property owner’s duty to keep their premises free from hazards is suspended while a storm is in progress.  In other words,  a property owner is not expected to be able to keep their property free from snow and ice while the snow continues to accumulate.  Furthermore, the duty does not resume if there is a lull in the snow followed by more snow. However, once the snow has stopped, the property owner is expected to cure the hazard within a reasonable period of time.

Thus, if the defendant can produce evidence that the accident occurred while the snow was still accumulating, they would escape liability under the storm in progress doctrine and a summary judgement motion would be successful.

Appellate court’s decision
On appeal the landlord argued that the “storm in progress” doctrine relieved him from liability. However, the plaintiff produced evidence that challenged the defendant’s storm in progress defense.  Meteorological reports showed that while two inches of snow fell overnight, any significant snowfall had stopped over 2 hours prior to the accident.

In addition, records indicated that at 7:15am the building’s custodian was asked to come in to clear the snow. However, he did not arrive until sometime between 8:00 and 9:40am.  By that 8:00am, any appreciable snowfall had already stopped at least 2 hours prior.

The question before the court was once the snow storm was over and there has been a cessation in the accumulation of snow, when should the defendant have cleared the snow?  In other words, was amount of delay in clearing the snow reasonable?

In denying the defendant’s motion for summary judgement the court noted that the question as to whether the custodian should have cleared the snow before 9:15am when the accident occurred is a matter for the trial court to decide.

There is no hard and fast rule as to how much time is reasonable. Citing caselaw, the court pointed out that in some circumstances event 30 hours after snow has stopped would not be enough time to establish negligence.

Premises liability
Clearing snow from property is necessary for property owners to avoid liability for injuries resulting from falls.  However, premises liability extends beyond snow-related hazards.  Property owners and managers must take reasonable steps to ensure their property is safe from all hazards.

Premises liability cases are commonly based on slip and falls. Sometimes slip and falls are related to snow and ice, but they are also related to spills of liquids and other substances.  Other premises liability cases are based on dog bites, inadequate security, inadequate maintenance, and pool accidents.

To prove negligence in a premises liability case, the plaintiff must show that the there was an unsafe condition and that that property owner knew or should have known about it and still failed to remedy the hazardous condition.

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