“Storm in Progress” Defense Kills Slip-and-Fall Lawsuit

Winter is coming. For New Yorkers who commute on NYC subways, that means increased chances of slipping and falling on snow and ice. However, slips and falls on snow and ice don’t always give rise to liability.

One example of a failed snow/ice case is Clement v. The New York City Transit Authority, decided November 13, 2014. In that case, the Appellate Division, First Department recently affirmed the dismissal of plaintiff’s slip-and-fall lawsuit on the basis of the “storm in progress” defense.

It held:

Although defendant inadvertently omitted the relevant climatological data from its initial motion papers, the affirmation of its counsel stated that it was snowing from about 11 p.m. on the night before the accident until 5 a.m., more than three hours after the accident, and plaintiff testified that it had stopped snowing only two hours before his fall. The obligation to take reasonable measures to remedy a dangerous condition caused by a storm does not commence until a reasonable time after the storm has ended. Based on plaintiff’s testimony alone, a reasonable time had not yet elapsed.

Plaintiff failed to raise a triable issue of fact concerning whether defendant breached a duty to clean the subway stairs when trace amounts of precipitation were falling.

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