In Ferguson v Shu Ham Lam, the Second Department examined a snow/ice related slip & fall from January 2001. While the Administrative Code of the City of New York § 7-210 creates a duty to remove snow and ice, that statute was not yet in effect in 2001. Nevertheless, an owner of property abutting a public sidewalk may be held liable for personal injuries sustained on that sidewalk if the owner undertook snow removal efforts that made the sidewalk even more dangerous than it would otherwise have been.

The onus, then, is on the defendant property owner to demonstrate that it did not worsen the condition of the sidewalk in its shoveling practices. Unfortunately for the owners (and their carrier), they maintained no employee/maintenance records whatsoever regarding who shoveled, when they shoveled and where they shoveled in relation to this sidewalk. According to the Court, the lack of documentation regarding the shoveling creates triable issues of fact as to whether the defendant/owner may have exacerbated the hazardous nature of the ice. Had they maintained work logs regarding the who/when/where of their shoveling practices, it seems they would have satisfied the Court’s standard for summary judgment. While the Court seems to mandate the unreasonable here (i.e., that the landowner prove a negative), work logs would probably have done the trick here.

Thanks to Brian Gibbons for his contribution to this post.

http://www.courts.state.ny.us/reporter/3dseries/2010/2010_04948.htm