With winter weather screaming through the nation, snow and ice stories are abounding in the news each day. A year or two from now, those storms will create a variety of claims such as falling on snow mounds and slipping on black ice. In Rodriguez v. Woods, the plaintiff took a creative expert approach to establishing notice of the City of New York when she slipped on snowy layers.
In Rodriguez, the First Department overturned a New York County decision that granted summary judgment to defendant, City of New York. Plaintiff alleged a fall on a sidewalk that was “dirty” with “snow layers on top of layers”, which she later clarified to mean “slushy ice” that was “clean, like slippery, flat” and had a little snow on top. Plaintiff clarified the description of the snow/ice via affidavit in opposition to the City’s summary judgment motion.
The main issue on appeal was whether plaintiff raised an issue of fact as to whether the ice on which she slipped formed within a sufficient amount of time prior to the accident for the City to have cleared it. Plaintiff supplied an affidavit from a meteorologist who opined that the ice was created during a four-inch snowfall that occurred four days prior to the accident, leaving the city adequate time to address the condition. The problem for the City, however, is that they failed to obtain a meteorologist of their own.
Plaintiff’s expert analyzed the weather data and in an affidavit stated that the combination of freezing temperatures, together with the warming temperatures and falling rain was enough to melt snow that had fallen two days prior to the accident, but not enough to melt the more significant snowfall that fell four days prior to the accident. The City offered no analysis or interpretation of the raw data. The City attorney simply stated in conclusory form that the ice formed a mere 48-hours before plaintiff’s fall, too soon for the City to have addressed it.
Plaintiff’s expert’s affidavit was “based on undisputed meteorological records, took plaintiff’s description of the ice into account, and explained how the meteorological events led to the formation of that particular patch of ice.” The City on the other hand failed to counter that testimony with any expert of their own. In relying upon, Massey v. Newburgh W. Realty, 84 A.D.3d 564, 566 (1st Dep’t 2011), the majority held that “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” (emphasis in original). Accordingly, the City’s motion should have been denied, due to their lack of expert opinion without regard to the sufficiency of plaintiff’s opposition papers.
The City, as well as the dissent, argued that the affidavit by plaintiff that redefined the snow/ice as it appeared on the date of her accident contradicted the prior sworn testimony of the plaintiff. The majority, however found that “Any inconsistencies in how plaintiff described the patch of snow and ice on which she slipped simply create a triable issue of fact (See Rodriguez v. New York City Hous. Auth., 194 A.D.2d 460 (1st Dep’t 1993)”.
Any expert in a snow and ice case must address the origin of the specific ice and snow condition on which plaintiff alleges that she fell and it must be based upon her testimony. Defense attorneys must lock in as much testimony as possible from a plaintiff regarding a description of the snow and/or ice to avoid the follow up affidavit clarifying the condition. Without an expert to interpret the meteorological record in a way that would disprove the plaintiff’s theory, the movant will not be entitled to summary judgment.
Thanks to Vincent Terrasi for his contribution.
For more information, contact Denise Fontana Ricci at .