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Appellate court rejects New York State’s “storm in progress” defense.  Scheuer v. State of New  (2021 NY Slip Op 05906)


In the case of a car accident that killed one person and severely  injured another, the appellate court was asked to consider whether the “storm in progress” defense  applied.

On March 2, 2005, 25-year-old Jeremy Killenberger and 25-year-old James Croote were passengers in a car being driven by Kevin Miller on State Route 7 in Princetown, Schenectady County. There was snow and ice on the roads that day.  As a result of the poor conditions, Miller lost control of the car.  The car crossed over the center lane and crashed into a snowplow.  Killenberger was seriously injured and Croote was killed.

Killenberger and Janet Croote individually and on behalf of Croote’s estate filed lawsuits against Miller claiming that his negligence contributed to the accident.  They also sued the State of New York, arguing that the State of New Yor had notice of the windblown snow on the highway that created a dangerous condition. Because they had ample notice off the dangerous conditions, they should have remedied it.

At trial, the court found in favor of the plaintiffs, determining that both Miller and the State of New York liable.  The court determined that Miller was 25% at fault and the State of New York was 75% at fault. Croote was awarded $150,000 and Killenberger was awarded  $2,343,662.63.The State of New York appealed the finding that it was 75% at fault.

Appellate Court’s decision
On appeal the State of New York argued that the “storm in progress” doctrine relieved the State of New York from liability.  In New York, a property owner has a duty to keep their property free of hazards.  This includes clearing snow and ice.  The storm in progress doctrine is a defense to a negligence claim. The argument is that a property owner is not on notice of a dangerous condition caused by a storm while a storm is still in progress. As a result, until the storm is over, the property owner, in this case the State of New York, does not have duty to take reasonable measures to remedy a hazardous condition.

State of New York also argued that Miller’s manner of driving was the main cause of the accident.  It pointed out that Miller received a traffic citation for driving too fast and that Killenberger testified that Miller was driving fast.

The appellate court disagreed with the State of New York.  It found that several hours had passed between when the snow stopped and when the accident occurred. While a lull or short break in a storm would not trigger the resumption of a property owner’s duty to remediate a hazardous condition, a complete cessation of the storm would.  There was also testimony related to the poor road condition and that there had been several other accidents in the area.

The court found that although the state had made efforts to manage the snowy conditions, the “snowplow spot treatment” was both inadequate and unreasonable given the State of New York’s actual notice that the area where the accident occurred experienced snowdrifts every year.

As for the argument that Miller’s driving was the proximate cause of the accident, the court concluded that State of New York did not present sufficient evidence to support how fast Miller was driving.

Thus, the appellate court upheld the trial court’s decision finding the State of New York to be 75% liable.  It also upheld the compensation award.

Liability for snow removal
Generally, for a municipality to be liable for injuries resulting from failure to remove snow, the plaintiff must be able to prove two things. First, that the hazard remained even though a reasonable amount of time had passed after the snow stopped.  Second, that the municipality had notice of the hazardous condition.

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