Got Protocols? Great… but did you follow them?(NY)

In Rodriguez v. Bronx Zoo Rest., Inc., the plaintiff alleged personal injuries after slipping on ice in front on the defendant restaurant. The Bronx County Supreme Court granted the defendant’s motion for summary judgment on liability, finding that the restaurant had protocols in place for how to deal with ice and snow removal after a significant snowfall.

The First Department reversed, however, because although the defendant had snow removal protocols in place, there was no evidence proffered “from a person with personal knowledge as to when the sidewalk was last inspected or as to its condition before the accident.” See De La Cruz v Lettera Sign & Elec. Co., 77 AD3d 566 (1st Dept 2010). The restaurant supervisor testified as to what was ordinarily done after a snowfall but admitted that she only visited the restaurant twice a week.  Hence, she could not say what was actually done after this particular snowfall. As such, the appellate court found that “evidence of their general procedures, standing alone, was insufficient to satisfy their burden on summary judgment.”

The Court went further, finding that even if the protocols had in fact been followed, the plaintiff presented triable issues of fact as to whether defendants had constructive notice of the danger presented by the icy condition. Looking to the weather history for the days leading up to the incident and the plaintiff’s description of a filthy patch of black ice, there was evidence that the condition could have been present for up to two days.

While ice removal protocols are good to have in place, standing alone without proof that the protocols were actually followed, they are not sufficient to establish a right to summary judgment.

Special thanks to Brian Gibbons for his contribution.

For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com.