In Williams v New York City Hous. Auth., the Appellate Division, First Department unanimously affirmed a lower court ruling that granted defendant’s motion for summary judgment.  In Williams, plaintiff allegedly slipped and fell on ice while walking on a concrete walkway in front of defendant’s building.  While the defendant was unable to use the storm-in-progress defense, plaintiff failed to prove notice, or that defendant created the condition.

The weather records showed that trace amounts of freezing rain had stopped several hours before plaintiff’s accident and as such, the storm in progress defense was inapplicable.  Plaintiff’s own evidence, however, belied her contention that defendant created the icy condition.

Plaintiff testified that she did not see ice the day before the accident when she walked through the area and her expert averred that weather records showed that ice was not present on untreated exposed surfaces for several days before plaintiff’s fall.  The expert speculated that the ice formed as a result of the melting and refreezing of snow that was piled along the fence in connection with a snowstorm the previous week.  However, the weather records showed that the temperature never went above freezing in the days before the accident and only rose to 34 degrees less than an hour before plaintiff fell.

Additionally, defendant was able to establish lack of notice.  The assistant superintendent testified that the area plaintiff fell was salted and sanded three times during her shift and she inspected the area an hour before the accident.  No complaints were received about the area nor were there any prior incidents.  Defendants have to be able to show reasonable measures taken during snow removal and proper inspections.  As such, record keeping is very important in order to win affirmative summary judgment motions.

In short, the plaintiff’s theory was that the snow had a “freeze and thaw” effect, which lead to the icy condition.  Except the weather records disproved the “thaw” half of plaintiff’s theory.  Thanks to Mehreen Hayat for her contribution to this post.  Please email Brian Gibbons with any questions.