In Ferguson v. Rochester City School District, an Appellate Division, Fourth Department case, the plaintiff commenced this action seeking damages for injuries she sustained when she slipped and fell on a snow and ice covered walkway on the defendant’s school premises.  After trial, the jury found in favor of the defendant.  On appeal, the plaintiff contended that the jury’s verdict was against the overwhelming weight of the evidence.  In overturning the jury’s verdict, the Appellate Division was highly critical of the defendant’s arguments that it was either impossible to remedy the condition or that they had made reasonable and appropriate efforts to clear the snow and had no further obligation. 

 Here, notice of the condition was not an issue.  Both the school’s head custodian and the plaintiff characterized the snow as hard, thick and rough.  The plaintiff also had photographs of the location to buttress her claim.  The defendant initially contended that by plowing and salting on the morning of the accident, they had satisfied any duty.  However, the trial testimony by the defendant’s head custodian was that storms are “just part of mother nature;” they have no written procedures or usual practice for removing ice; and custodial employees “don’t remove the ice, [they] just spread the salt.”  Further, he admitted the blade of the tractor was not effective in removing accumulated ice from the walkways and that they use no other tools or machines for that purpose.  Finally, the head custodian stated that the storm occurred on a weekend and that the condition of the walkway had stayed the same from Monday until the Wednesday morning when the accident occurred.  Moreover, the plaintiff’s meteorologist and the certified weather records for the date of the accident showed that the temperature was high enough that salting efforts would have been effective.

Taking all of this into account, the court held that while a failure to remove all snow and ice from a surface does not constitute negligence, where a defendant had ample opportunity to remedy the dangerous condition and the defendant’s remedial efforts are plainly insufficient to render the walkway reasonably safe, they would be found negligent.  In light of this case, the message from the Appellate Division seems to be clear: you must try harder to clear the snow and ice.

Thanks to Michael Nunley for his contribution to this post.

http://www.nycourts.gov/courts/ad4/clerk/decisions/2012/10-05-12/PDF/0865.pdf