ICY SLIP AND FALL SIDEWALK ACCIDENT VICTIM DEFEATS SUMMARY JUDGMENT

FROM:  New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Brooklyn accident injury lawyer)

COURT:  Supreme Court, Appellate Division, First Department, New York.

CASE:  Massey v. Newburgh W. Realty, Inc.

DATE:  May 17, 2011

HOLDING:  Defendant loses motion for summary judgment against accident victim.

MAJORITY OPINION:    Injured accident victim claims to have slipped and fallen on a sheet of ice on the sidewalk in front of defendant's building, a convenience store in Newburgh, New York. She claims it was not raining or snowing so that there was no "storm in progress."

Plaintiff testified that she felt something slippery under both her feet, that her right foot slipped out from under her; when she looked she saw ice on the ground.

At her oral deposition, plaintiff/accident victim identified the general location of the accident using a black-and-white facsimile image of a photograph of the accident location.

The defense asked the court for summary judgment dismissing the lawsuit against it. The defense had hired an expert meteorologist or weatherman, who gave an affidavit to the court.

The meteorologist swore that there was no rain or snow for one week before the accident, and that for the two days before the accident the temperature had been n the 50s or 60s - so there could not have been ice.

Plaintiff opposed the motion for summary judgment, contending that the affidavit of defendant's expert meteorologist was speculative insofar as it did not take into account the relevant testimonial and photographic evidence in the case in concluding that there was no snow or ice on the ground.

Plaintiff asserted, in any event, that she had raised a triable issue of fact. Plaintiff relied on her deposition testimony and affidavit submitted in opposition to the motion, in which she averred that the ice she had slipped on was "hard, dry and approximately one inch thick."

Plaintiff relied, in addition, on certified meteorological records which indicated that in the 14 days prior to and including the date of her accident, the temperature fell below freezing on each and every day.

The appeals court noted: "Summary judgment in a snow or ice case is proper where a defendant demonstrates, through climatological data and expert opinion, that the weather conditions would preclude the existence of snow or ice at the time of the accident."

"Defendant's expert opinion was arguably speculative insofar as it failed to take into account plaintiff's testimony concerning the nature of the ice, nor did it address plaintiff's photograph showing ice at the accident location."

"Further, as noted by the motion court, defendant did not satisfy its burden of establishing lack of constructive notice as a matter of law since it failed to submit an affidavit, deposition testimony or other competent evidence from a store employee establishing that any employees regularly inspected the sidewalk."

"In this case, unlike storm-in-progress cases, we are not presented with the difficulty of determining whether a fall was attributable to old ice, as opposed to freshly accumulating snow."

"The dissent asserts that plaintiff failed to establish the origin of the ice patch on which she slipped. However, it may reasonably be inferred from plaintiff's description of the ice, the photo, and the climatological data showing freezing temperatures that the ice was attributable to a prior winter storm. We accordingly find, at this stage, that plaintiff has sufficiently raised a triable issue of fact."

DISSENTING OPINION:   Because I believe that defendant established prima facie entitlement to summary judgment and that plaintiff failed to raise a triable issue of fact on the issue of notice, defendant is entitled to summary judgment, and therefore I dissent.

Plaintiff did not see the ice before her fall, but based on post-fall observations described the patch as large and spanning several feet. She had no idea when it had last snowed and saw no other ice or snow prior to her fall.

Defendant's meteorologist concluded that on March 14 at 9:30 P.M., there was no ice or snow on the ground at the location of this accident.

In opposition to defendant's motion, plaintiff submitted an affidavit, wherein she stated that a photograph annexed thereto was a fair and accurate representation of the patch of ice upon which she fell, and that the ice was hard, dry, and an inch thick. Plaintiff also submitted an affidavit from her boyfriend, wherein he states that he took the photograph. He likewise stated it was a fair and accurate representation of the patch of ice upon which plaintiff fell, describing in the same was as plaintiff. Lastly, plaintiff submitted climatological records evincing that in the days prior to her fall the temperatures had dipped below freezing.

The mere presence of an ice patch, by itself, does not cast a defendant in negligence thereby making him or her liable for an accident. Instead, to establish liability for an icy condition, it must be proven that a defendant had either actual or constructive notice of the icy condition

Here, contrary to the motion court's decision and the assertions by the majority, defendant established prima facie entitlement to summary judgment. Defendant's meteorologist, based upon his review of pertinent climatological records, also submitted with defendant's motion, opined that given the weather conditions existing at the time of plaintiff's accident and in the seven days preceding it, there was no ice existing on the sidewalk where plaintiff alleges to have fallen. By establishing the absence of any ice at this location for at least two days prior to plaintiff's fall, defendant not only controverts the existence of any ice, but as relevant here, negates actual and constructive notice and thus establishes prima facie entitlement to summary judgment.

That the meteorologist did not review and comment on some of the evidence offered by the plaintiff, namely her testimony and a photograph of the condition does not alter my holding because his opinion is undergirded by the aforementioned climatological reports.

Plaintiff, in a final attempt at establishing constructive notice seeks to link the icy condition to a prior storm or a period of prior precipitation. While this is of course one way to establish the origin of an icy condition thereby establishing constructive notice, plaintiff fails to meet her burden since the evidence tendered must in fact link the condition to a prior storm. Here, plaintiff simply submits climatological records and merely asserts that dips in the temperature, to below freezing, confirm the patch's existence. There is no specific attempt, by an expert or anyone else for that matter, to particularize the weather pattern from which it can be inferred that the ice upon which plaintiff fell originated from prior precipitation or a previous storm.

Accordingly, I believe that plaintiff fails to raise an issue of fact sufficient to preclude summary judgment in defendant's favor.