Court Applies “Storm in Progress” Rule to Dismiss Slip-and-Fall Case

In Fisher v. Kasten, decided January 21, 2015, the Appellate Division, Second Department dismissed plaintiff’s slip-and-fall case on the basis of the so-called “storm-in-progress” rule.

Plaintiff alleges that in February 2011, he was “injured after slipping and falling on an icy condition on the landing of an exterior stairway of the apartment building in which he resided.” Plaintiff sued the owners of the property, as well as the person who maintains the property.

The lower court denied the defendants’ motion for summary judgment. The appellate court reversed that decision. In short, defendants win.

Here’s the law:

As the proponents of the motion for summary judgment, the defendants had the burden of establishing, prima facie, that they neither created the icy condition nor had actual or constructive notice of it. This burden may be met by presenting evidence that there was a storm in progress when the plaintiff allegedly slipped and fell. 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.

Applying the law, the court explained:

In support of their motion, the defendants submitted, among other things, a transcript of the plaintiff’s deposition testimony, the affidavit of Tzuporah Kasten, and certified meteorological records, which demonstrated, prima facie, that it was sleeting at the time of the occurrence. Accordingly, the “storm in progress” rule applied here.

In opposition, the plaintiff failed to raise a triable issue of fact. The defendants’ general awareness of a recurring condition of water dripping from an awning above the landing onto the landing was insufficient to establish constructive notice of the specific icy condition that allegedly caused the plaintiff to fall. Moreover, given the weather conditions, the plaintiff’s expert’s conclusion that the specific icy condition upon which the plaintiff slipped was caused by a defective awning was speculative.

Share This: