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New York’s “Storm in Progress” Rule

by mjpospis on January 23, 2016

in Articles, Personal Injury, Premises Liability, Slip/Trip and Fall, Snow/Ice Injuries

“Under the so-called ‘storm in progress’ rule, a property owner will not be held responsible for accidents occurring as a result of the accumulation of snow and ice on its premises until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm.” Dumela-Felix v. FGP W. St., LLC, No. 2014-11130, 2016 WL 229972 (N.Y. App. Div. Jan. 20, 2016).

For example, in the Dumela-Felix case, the court held that “the defendant established its prima facie entitlement to judgment as a matter of law by submitting evidence, including climatological data, demonstrating that it did not have a reasonable opportunity to remedy the allegedly dangerous condition that was created by the extraordinary snowstorm.”

As a contrary example, the court in Ndiaye v. NEP W. 119th St. LP, 124 A.D.3d 427, 428, 1 N.Y.S.3d 50, 51-52 (N.Y. App. Div. 2015) held that summary judgment for defendant should not have been granted on the basis of the storm-in-progress rule, finding that issues of fact existed as to its applicability.

The court explained:

Although a temporary lull or break in the storm at the time of the accident would not necessarily establish a reasonable opportunity to clear away the hazard[,] …. if the storm has passed and precipitation has tailed off to such an extent that there is no longer any appreciable accumulation, then the rationale for continued delay abates, and [common sense] would dictate that the [storm in progress] rule not be applied. Here, triable issues of fact exist as to whether plaintiff’s accident occurred while the storm was still in progress or whether there was a significant lull in the storm, and whether the three hours that elapsed between the last freezing rain and plaintiff’s accident afforded defendant a reasonable opportunity to clear the steps [on which plaintiff fell].

Of course, whether the storm-in-progress rule will apply in a particular case depends on all the facts. Here are some examples of cases applying the rule.

Categories: Articles, Personal Injury, Premises Liability, Slip/Trip and Fall, Snow/Ice Injuries

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