Storm in Progress: The Best Defense You Never Heard Of

Storm in Progress: The Best Defense You Never Heard Of

12.1.2019

By Robert J. Connor Jr. and Finney Raju

Under New York law, a property owner is under a duty to maintain the property in a reasonably safe condition.¹ This includes the necessity of keeping the property free of slippery conditions or tripping hazards. Most attorneys practicing in the field of premises liability know these basic precepts.

However, many attorneys are unaware of a strong defense to premise liability claims: the storm in progress defense. Moreover, attorneys who have heard of it are unaware of how useful the defense is. This article is meant to: (1) introduce the basics of the storm in progress defense; (2) provide some key case law; and (3) iterate the necessary information and evidence required for a successful motion premised on the defense.

From the outset, it is important to note there are some key differences in how the four Departments treat the storm in progress defense. While this topic will be discussed in more detail, in general upstate New York (that is to say the Third and Fourth Departments) is more receptive to this defense than downstate New York (the First and Second Departments).

WHAT IS THE STORM IN PROGRESS DEFENSE?

The storm in progress defense holds a property owner’s duty to reasonable measures to remedy a hazardous condition caused by a storm is suspended while that storm is in progress.² “Reasonable measures” in this context includes corrective measures (e.g., clearing snow and salting) as well as providing warnings. For example, in Strickland v. Long Is. Rail Rd. the plaintiff fell due to a change in elevation between a sidewalk and abutting train tracks (a change which was obscured by nine inches of freshly fallen snow). In addition to rejecting the claim that the defendant should have cleared the snow, the Second Department held it “did not have a duty to place any additional markers to warn pedestrians of the change in elevation between the sidewalk and the tracks.”

The landowner’s duty to correct the hazardous conditions related to the storm is not reinstated until the storm has ended.³ Once the storm is over, the landowner must remedy the condition within a reasonable period of time.⁴

Furthermore, the storm in progress defense applies to interior surfaces as well as exterior surfaces such as sidewalks, parking lots, driveways, etc.⁵  The scope of the doctrine reflects the common sense policy that landlords “are not required to provide a constant, ongoing remedy when an alleged slippery condition is said to be caused by moisture tracked indoors during a storm.”⁶ However, the defense is limited to snow or moisture which has been tracked into interior surfaces from outside.⁷

Importantly, a lull or break in the storm does not constitute a complete cessation and does not trigger the resumption of the property owner’s duty to remediate the condition.⁸ However, the accident must be caused by a condition or defect created by the storm. Defendants are not protected from liability for failing to clear precipitation which pre-existed the storm. In Perez v. Raymours Furniture Co., Inc., the defendant store’s associate saw ice on the ground a week before the subject storm began. The court denied a motion for summary judgment brought on the ground of the storm in progress, holding it was unclear whether plaintiff’s accident was due to pre-existing icy conditions.⁹

An epistemological difficulty can arise where there are overlapping storms driven by different weather patterns. This situation is a common occurrence in central and upstate New York, and raises the question as to when one storm ended and the other began. It also presents the related question of whether a break is a “lull” or a “cessation”. Thus, litigants should consult with weather experts to evaluate the source, direction, and type of weather patterns which persisted in the region.

HOW BAD DOES THE WEATHER HAVE TO BE FOR STORM IN PROGRESS TO APPLY?

One of the most common misconceptions regarding the storm in progress defense is it requires a significant storm or weather event. On the contrary, the defense does not require heavy lake effect snow or monsoon levels of rain. Specifically, the Third and Fourth Departments have held light snow and/or drizzle is sufficient to trigger the protections of storm in progress.¹⁰

Downstate courts have offered somewhat conflicting guidance on the type of precipitation that qualifies as a storm and when a defendant is required to respond. In Powell v. MLG Hillside Assocs., L.P., the First Department denied summary judgment where only “trace amounts of precipitation” fell in the two hours preceding the accident.¹¹  The court emphasized there was heavier snowfall earlier in the prior evening, but it had sharply declined in the hours leading to the accident.

Just a year later, however, the First Department dismissed a claim against the New York City Housing Authority based on evidence that “trace precipitation in the form of freezing rain and ice pellets, accompanied by heavy fog and widespread glaze” fell before and after plaintiff’s accident.¹² The court also noted the precipitation caused “numerous bridge and roadway closures, public transit interruptions, accidents and injuries, and was preceded by a month of predominantly above-freezing temperatures that had no snow or ice.”

The First Department’s apparently conflicting decisions could be reconciled in that Powell showed a sharp decline of precipitation in the hours leading to the accident, which is suggestive of cessation, but in Prince v. N.Y. City Hous. Auth. the weeks prior to the accident saw no snow or ice, indicating a recent and ongoing snowfall. Also, in Prince, the court took into consideration the effects of the precipitation on the surrounding areas, including traffic and roadway conditions and declined visibility. More recently, the First Department denied a defendant summary judgment noting only “trace amounts” of precipitation fell at the time of the accident.¹³ The First Department further noted heavier precipitation fell the day before the accident than on the day of.

Based on the above, plaintiffs seeking to oppose storm-in-progress motions should look at data for the week leading up to the accident in order to develop an argument that the precipitation that fell during the accident was relatively inconsequential. Parties should also look at qualitative data, such as the effects of the snowfall on, e.g., traffic and roadway conditions, as well as quantitative data like the recorded measurements. Quality matters as much as quantity – especially when we’re dealing with only “trace amounts” of snow.

Downstate attorneys should also be mindful of local regulations and administrative codes which may impose specific duties on property owners to clear their sidewalks. In New York City, property owners are obligated to clear “snow or ice, dirt, or other material” from abutting sidewalks and gutters within four hours of snow fall.¹⁴ However, the Code exempts property owners from clearing the conditions between 9:00 p.m. and 7:00 a.m. The Code, by its terms, only applies to precipitation created by snowfall. It also creates a bright-line four hour “grace period” for property owners.

WHAT IS THE BEST WAY TO UTILIZE THE STORM IN PROGRESS DEFENSE?

Storm in progress is a complete defense to a defendant’s liability. It is a technical and legal argument best fit for dispositive motions rather than arguments for a jury. On summary judgment, a defendant’s burden may be established by presenting evidence there was a storm in progress when the injured plaintiff allegedly slipped and fell.¹⁵

The timing of a motion pursuant to the storm in progress defense is also important. Because this defense is heavily based on facts, the more evidence, including records and testimony, demonstrating the presence of inclement weather at the time of the incident, the better. Therefore, the storm in progress defense is much better suited to a summary judgment motion at the close of discovery rather than an early or pre-answer motion to dismiss.

WHAT EVIDENCE DO YOU NEED FOR A STORM IN PROGRESS DEFENSE?

It should become standard practice when handling a premises liability matter to ascertain the location, date, and time of the alleged incident and immediately obtain a weather report. Note that in New York, weather records are only admissible if they are certified by the National Climatic Data Center (NCDC), a part of the National Oceanic and Atmospheric Administration (NOAA). The public has free access to the information available from the NCDC website. The search tool is intuitive and easy to use.¹⁶ However, there is a cost for ordering certified records, which depends on the size of records sought. Bear in mind, these certified weather records are a necessity for any motion based on the storm in progress defense, and the lack of these records is sufficient for a denial of the motion.

In addition to the certified weather records, a party’s other witness’s testimony regarding the weather is very useful. Questions regarding the weather before, during, and after the incident should asked during interviews and depositions. If a plaintiff testifies it was snowing or raining when she fell, her attorneys have virtually no means to counteract that testimony. For this reason, in-house counsel for property owners, or attorneys who represent them regularly, should request the inclusion of weather conditions in any standard accident or incident reports under their purview.

WHAT EXPERTS ARE NEEDED?

While not strictly required, the affidavit of an expert, most commonly a meteorologist or climatologist, can substantially strengthen a storm in progress defense. Courts have held a defendant is not required to submit the affidavit of a licensed meteorologist to interpret the data contained in certified weather records or to otherwise opine the storm in progress defense applies.¹⁷

There are many services which provide weather experts. However, do not overlook the possibility of retaining the weatherman from your local news station. These individuals usually offer meteorology consultation services, are well known in their areas, and are usually comfortable in front of a jury given their daily television broadcasts. Be aware the meteorologist may also order them from the NCDC. It may be more cost effective to order the records yourself rather than the expert. To assess this, you will need to consult their fee schedule.

WHY IS STORM IN PROGRESS THE BEST DEFENSE I NEVER HEARD OF?

What makes the storm in progress defense such a powerful tool is it narrows the case to one singular issue. Was a storm occurring at the time of the incident? If it was, then there is no liability because it completely negates a vital element of the plaintiff’s case: duty. Without this element, a plaintiff cannot succeed.

Moreover, this is a fact which is objective, easily ascertainable, and has very little room for argument. Additionally, the defense also has a low cost to it: mainly the records and one expert to provide an affidavit. The certified weather records are not overly expensive and expert meteorologists are relatively inexpensive when compared to the cost of other experts. Plus the information is only available from one source, the NCDC, so even if there is a case of dueling expert interpretations, there is no disagreement on the underlying data. As such, even though this is a fact-dependent defense, it is not as complicated as others such as the serious injury threshold in a motor vehicle matter.

CONCLUSION

Whether representing a plaintiff or defendant, any attorney involved in a premises liability case should consider the usefulness and impact of the storm in progress defense. A well prepared and crafted motion based on storm in progress is very likely to result in dismissal. Even when a motion is denied at the trial level, there is a strong trend towards granting them on appeal – so long as there is undisputed meteorological evidence as to the type of precipitation and time of accident.

However, the process for obtaining that dismissal starts at the very beginning of the case: (1) weather records should be reviewed at the offset and certified weather records obtained shortly thereafter; (2) parties and witnesses should be questioned regarding weather conditions at every deposition; and (3) a meteorologist should be retained at the earliest opportunity. Follow these steps and, with the right facts, complete victory can be yours.

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