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Court rejects New York State’s “storm in progress” defense. Tucker v. N.Y.C. Transp. Auth., 2020 N.Y. Slip Op. 30115 (N.Y. Sup. Ct. 2020)


In a personal injury case involving a plaintiff slipping and falling on subway stairs, the court considered whether the defendant, New York City Transit Authority (NYCTA), had a reasonable opportunity after the end of a snow storm to address the slippery condition, or whether NYCTA had actual or constructive notice of the hazardous condition.

The events that led to the plaintiff’s injury happened on March 6, 2015 at 8:30am at the entrance of the subway station on the northwest corner of the 110th Street and Lenox Avenue.  The night before it had snowed, and the stairs were covered in slush.

The plaintiff alleges that she was about to walk down the stairs to the subway station.  When she took her first step, she slipped down several stairs, landing on her back.  In her lawsuit against NYCTA, the plaintiff argues that she fell because of the slush and snow on the stairs. She stated that she tried to avoid slipping by holding onto the railing, but she fell any way. The plaintiff alleged that no one was cleaning the stairs immediately prior to her fall, but NYCTA employees did start to salt the stairs after she fell. The defendant moved for summary judgement.

Defendant’s motion for summary judgement
The defendant moved for summary judgement claiming that because the snow storm resulted in 19 inches of snow, it was reasonable that by 8:00am they had not yet been able to remove the snow and slush from the subway steps. In the alternative, the defendant argued that they had cleared the stairs of snow by 7:00am, fulfilling their responsibility.

In opposition to the defendant’s motion for summary judgement, the plaintiff argued that there were issues of fact as to whether there was sufficient time after the storm for the defendants to have cured the hazardous condition on the steps.

Court’s analysis and decision
The standard for a summary judgement is that it will be granted if the court find that there is no triable issue of fact exists. The burden is on the moving party to make a prima facie showing of entitlement to summary judgment as a matter of law. In this case, the moving party is the defendant, the NYCTA.

When it comes to a premises liability case that is based on slipping and falling on snow, the storm in progress doctrine is often raised as a defense.  Under the storm in progress doctrine, property owners do not have a duty to clear snow during a storm.  The reasoning is that it would be difficult if not impossible to clear the snow because the falling snow would continue to recover the shoved areas.  Thus, a property owner’s duty to remedy a dangerous condition caused by snow is suspended while the snow storm is ongoing.

Once the storm has ended, the duty remains suspended until a reasonable time has passed.  The question is what is a “reasonable time?” Here, the storm has ended 13.5 hours prior to plaintiff’s fall.  However, the storm during thee 4 days prior to the victim’s fall, 19.5 inches of snow fell, including 7.5 the day before the victim’s fall.

Upon review of the evidence submitted, including the Unusual Occurrence Report, it was not snowing at the time that the plaintiff fell. In fact, the Unusual Occurrence Report indicated that it was “clear.”  In addition, the plaintiff indicated that it was not snowing, and climatological reports indicated that as well.  Thus, the decedent failed to establish a premia facie entitlement to the storm in progress defense.

In addition, the court found that the defendant also failed to show that the 13.5-hour period after the cessation of the snowstorm was an unreasonable amount of time for the defendant to remedy the hazardous condition on the steps to the subway station.  In fact, the court found that 13.5 hours was sufficient time for them to address the slushy condition of the stairs.

The court also rejected the defendant’s argument that the NYCTA had cleaned the stairs that the defendant fell on at 7:10am as testimony did not prove that the cleaner had cleared the actual steps that the plaintiff fell on or what exactly the cleaner did to clear the steps.

Since the defendant failed to meet their burden, the court dismissed their motion for summary judgement.

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