Snow and Ice Cases: Storm in Progress Doctrine

When defending cases involving snow and ice sidewalk liability, the storm in progress doctrine should always be examined as a possible defense. Within the five boroughs of New York City, it is important to review New York City Administrative Code § 16-123 as it is the governing statute setting forth the duties owed by property owners to remove snow, ice, and dirt from their sidewalks. When the accident occurs in other municipalities outside of New York City, local snow removal laws should be examined carefully.

The general rule is that no liability can be imposed on an abutting landowner if an accident occurs while a storm is in progress. In New York City, the storm in progress doctrine has been certified by New York City Administrative Code § 16-123(a) which states that persons, who own properties abutting a street or sidewalk, have four hours from the time snow or rain stops falling to remove snow, ice, or dirt from the subject sidewalk. This four-hour grace period does not run between the hours between 9:00 pm and 7:00 am. In all cases dealing with the storm in progress doctrine, it is important to obtain certified weather data. This data can show if a storm was ongoing at the time of an alleged incident or if a storm had recently occurred.

The Court of Appeals in Sherman v. New York State Thruway Authority recently clarified this doctrine. In Sherman, the plaintiff, a New York State Trooper, initiated a personal injury action after he slipped and fell on an icy sidewalk that was owned and operated by The New York State Thruway Authority. In this case, the plaintiff testified that an ice storm had occurred the evening prior to the alleged incident. The plaintiff further testified that the ice storm had turned to an “intermittent wintery mix” by 6:50am, the time that the plaintiff arrived for work and entered the troop barracks. Between 6:50am and 8:15am, the wintery mix turned into rain. The plaintiff stated that it was raining when he exited the barracks at 8:15am to walk to his vehicle. It was at this point that the plaintiff slipped and fell on a patch of ice on the sidewalk. Defendant was granted summary judgment after defendant supported the plaintiff’s testimony by submitting a verified weather report confirming that rain was indeed still falling at the time of the alleged incident and that the temperature remained around freezing form the time the ice storm began until the time the plaintiff fell. The Court ruled that this evidence was sufficient to establish that a storm was still in progress and, therefore, the defendant’s duty to abate the icy condition had not yet arisen.

In a strong dissent, Justice Rivera expressed concern in applying the storm in progress doctrine to instances of freezing rain. The Justice stated that summary judgment was a drastic remedy and opined about the dangers of applying summary judgment to facts where is was not completely clear as to when an ice storm ceased and a freezing rain storm began. The majority was ultimately persuaded by certified weather data confirming that the temperature remained near freezing from the time the ice storm began until the time that the alleged incident occurred.

Within the five boroughs, the storm in progress doctrine has been further refined by the New York City Administrative Code § 16-123. In Bi Fang Zhou v. 131 Chrystie St. Realty Corp., a plaintiff filed suit after she allegedly slipped and fell on a sidewalk located in front of a premises owned by the defendant. Plaintiff alleged that she fell at approximately 7:30am. Defendants submitted a metrological report showing that it had snowed until 11:00pm on the night prior to the morning of the plaintiff’s alleged accident. The Court dismissed the plaintiff’s complaint holding that, pursuant to Administrative Code § 16-123, the defendants had until 11:00am on the date of the alleged accident to remove snow and ice from the abutting sidewalk before defendants could be held liable. The code specifically states that no snow removal needs to be done between the hours of 9:00pm and 7:00am. Since the plaintiff alleged that the accident took place at 7:30am, the defendants did not yet owe a duty to the plaintiff under the storm in progress doctrine.

In Schron v. Jean's Fine Wine & Spirits, Inc. the Court cited to Administrative Code § 16-123 and confirmed that owners of abutting properties have four hours from the time the precipitation ceases, not including the hours of 9:00pm to 7:00pm, to clear snow and ice from the sidewalk. The plaintiff testified that she slipped and fell at approximately 8:20am. She further testified that there was no ongoing precipitation at the time of her incident. The abutting property owners established, prima facia, that they could not be held liable for failing to clear the sidewalk at the time of the accident. Through climatological data, defendants showed that snow had fallen the night before the plaintiff’s accident and in the early morning on the date of the plaintiff’s accident. The Court dismissed the plaintiff’s complaint and held that defendants had until 11:00am to clear snow and ice from the sidewalk before any liability could be imposed.

The Court in Rodriguez v. New York City Hous. Auth. also confirmed that landowners have four hours from the time a snowstorm ceases to remove snow and ice from an abutting sidewalk. In Rodriguez, a plaintiff slipped and fell at 8:20 in the morning. Defendants submitted certified weather data indicating that trace amount of snow fell between 2:00am and 10:00 am on the day of the incident and that the temperature remained below freezing. The Court granted defendants motion for summary judgment holding that defendants had until at least 11:00am to complete snow removal before liability could be imposed. This ruling further clarified New York City Administrative Code § 16-123 (a) and confirmed that “building owners have four hours after a snowfall stops to remove snow and ice from abutting sidewalks, excluding the hours between 9:00 p.m. and 7:00 a.m.”

Generally, landowners will not be liable for accidents that occur while a storm is in progress. This is well established in Sherman v. New York State Thruway Authority. Within New York City, the storm in progress doctrine has been clarified by New York City Administrative Code § 16-123. As demonstrated in in Schron, Bi Fang Zhou, and Rodriguez, the storm in progress doctrine may be applicable even in instances when there is no active precipitation.

In the five boroughs, under Administrative Code § 16-123, abutting landowners are afforded a four-hour grace period during which liability cannot be imposed following the cessation of precipitation. This period of suspended liability can be extended if a storm occurs between the hours of 9:00pm and 7:00am as this time period has been exempt by statute. For instance, if a defendant submits verified weather data proving that snow was falling at 10:00pm on the 1st, that defendant would have until 11:00am on the 2nd to clear a sidewalk of snow and ice before liability could be imposed. In such an instance, the four hour “clock” would not start running until 7:00am on the 2nd. This hypothetical is similar to the facts discussed in Schron and Bi Fang Zhou.

The snow in progress doctrine is an extremely useful tool in defending sidewalk and premises cases. The doctrine should be used to avoid liability in all instances where a storm is ongoing. In the five boroughs, this doctrine has been codified by New York City Administrative Code § 16-123 and should be reviewed in all instances where the facts suggest that a snow or ice storm was ongoing or has recently occurred. Many municipalities also have statutes and ordinances similar to that of New York City Administrative Code § 16-123. As such, even cases venued outside the five boroughs may have similar defense options.

It may be useful for petitioner to take the following steps when litigating a case where the storm in progress doctrine may be applicable:

In premises liability cases, the storm in progress defense may just be the best defense you never heard of.