Nature’s fury can be most frightening. It can lash out with a category 3 hurricane leaving thousands in a struggle for survival. It can create a massive tsunami thus creating a towering wave that can uproot houses, bridges, and tractor-trailers, sweeping them away like they were children’s toys. It can shatter hitherto impregnable skyscrapers in a populated city through a giant earthquake that can cause the needle on the Richter scale to fly off the charts. It can produce torrents of rain with such enormous intensity and duration as to build mountainous surges and devastating floods. It can produced winds of such force and magnitude as to literally destroy anything that remains in its path. It can produce blizzards of snow so heavy and deep as to shut down the most urban of cities leaving them isolated and cut-off from any outside contact. And yet, conversely, it can also produce traces of snow and ice however small, but enough to create a dangerous and hazardous condition to a pedestrian who can easily slip, fall, and suffer painful, disabling, and even life threatening injuries.
Such is the full wrath and unrelenting power of nature, which to this day civilization has been unable to protect against. All of which, despite state-of-the-art technology and ultra scientific inventiveness, leaves us with nature’s latest tragic and disastrous blow, Sandy- and serves as a backdrop for the legal and substantive phase of this article.
Typically, the snow and ice case involves an accident in which someone slips, falls, and sustains personal injury as a result of a dangerous and slippery condition. Before a plaintiff can prevail however, certain basic questions must be answered:
- Was there a duty owed by the defendant to the injured plaintiff?
- Was the defendant under a duty to remove the dangerous condition based upon ownership, control, or special use of the property?
- Did the defendant breach that duty?
- Did the defendant have actual or constructive notice of the dangerous condition?
- Did the defendant have a reasonable opportunity to remove or repair the dangerous condition prior to the accident?
- Was the dangerous condition a proximate cause of the injury?
- Did the defendant or its agent attempt to remove the dangerous condition but did so in an unreasonable manner thus creating a further dangerous condition?
The Plaintiff who has the burden of proof must offer sufficient evidence on each of the above questions in order to prevail at trial.
As for “notice”, in order to impose liability, a defendant property owner must have notice of the dangerous condition [actual], or in the exercise of reasonable care, should have known of the dangerous condition [constructive]. Thus as absentee property owner should be aware [and held to have notice] of an impending snowstorm through standard weather reports and take the necessary steps to remove snow and ice within a reasonable period of time.
As to “7” above [the attempt to remove the dangerous condition], whether the initial condition was dangerous or not, once an attempt is made, it becomes the duty of the “remover” to perform the task in the reasonable manner so as not to create a new dangerous condition, failing which, liability will attach should someone be injured in a slip and fall.
A recent snow and ice case, Jefferson v. Long, was decided by Justice Schmidt in the New York State Supreme Court, Kings County, and published in the New York Law Journal on September 20, 2012. As reported, a tenant in a multiple dwelling [4 apartments or more], was injured as a result of slipping on ice as she was exiting the building while walking down the steps. It had snowed the night before. The contractor hired by the building owner to remove snow and ice, shoveled the area prior to the accident and threw a chemical down to melt away any ice formation. The Court held, that although there were still traces of snow falling at the time of the accident, the attempt to remove the snow and ice was performed in an unreasonable manner such as to have created a new dangerous condition [akin to item “7”above], and thus denied defendant’s motion for summary judgment, leaving all issues of negligence to be determined by a jury.
The Jefferson case is neither unique nor uncommon. Should there be a severe winter season with snow and ice, it can be reasonably predicted that a number of accidents will occur. Success on behalf of an injured plaintiff however, will depend upon how expertly the proof is offered at trial in order to satisfy the seven questions set forth above.
A word of caution: Juries often look upon snow and ice cases with a degree of skepticism, particularly so if they are homeowners. Thus, the personal injury attorney must be extremely incisive during the voir dire [jury selection] process to respond to any prospective homeowner juror by exercising a peremptory challenge where appropriate in order to best represent and protect the client’s rights. Keeping a homeowner juror on the panel despite the juror’s “sincere” protestations that he/she “can be fair”, is like going downhill on an icy surface, and one need not be an Olympian to know the surrounding dangers that accompany such a treacherous ride.
As for the role of nature in all of this, although nature initiates the process, don’t try to name her as a party “defendant”. Her full wrath is yet to be challenged successfully and probably never will. So when she lashes out with snow and ice, exercise reasonable care, be you a “property owner” or “pedestrian”, and avoid the “slippery slope” of the uncertainties of trial. And should you injure yourself seriously, retain a reputable and experienced attorney deeply familiar with these troublesome issues. Failing to do so may place you on the losing side of the ledger, and nobody likes to be in that undesirable neighborhood, not even Mother Nature herself.