Dale San Marco was walking through a Village of Mt. Kisco-owned parking lot on her way to work in broad daylight one wintry Saturday morning in 2005, when she slipped on black ice. The source of the ice seemed to be a pile of snow that the village had created when plowing the parking lot several days earlier. The claim is that the snow melted, causing water to run-off and then re-freeze, as it is wont to do in February. The village had salted the lot one day before San Marco’s accident, but “did not employ a work crew on Saturdays and Sundays to monitor the parking lot….”

The State of New York, like all states, was cloaked with sovereign immunity at common law and could not be sued. New York now permits citizens to bring actions against municipalities, but such lawsuits are usually limited to cases where the municipality has received prior written notice of the hazard. Mt. Kisco has such a law and it says that the notice requirement applies to claims based upon the “accumulation of snow and ice.”

But the NY Court of Appeals (our highest court) has ruled in San Marco v. Village/Town of Mount Kisco (NY Court of Appeals, slip opinion No. 223, Dec. 16, 2010) that the plaintiff may continue with her lawsuit even though the municipality did not have prior written notice of the black ice that Saturday morning. Chief Judge Lippman, writing for the court, protests that “We do not hereby create a new burden on municipalities to remove all snow off-premises in order to avoid liability…” But short of having a work crew on duty 24/7 or, in fact, carting the snow off site, isn’t that just what this ruling imposes on the municipalities of NY that are already careening toward bankruptcy under the burden of the benefit packages already paid to the work crews that now need to work overtime and sit and watch ice form on the ground 24/7.

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