A New York State Court has granted defendants’ motions for summary judgment in a slip and fall case after application of the “ongoing storm” or “storm-in-progress” doctrine. The Court held that property owners, tenants-in-possession, and snow removal contractors are not liable for accidents caused by snow or ice that accumulates during a storm until a reasonable amount of time has passed following the cessation of the storm. Further, the Court held that a brief “lull” in the severity of a continuing storm does not impose a duty to remove the snow and ice until the storm ceases in its entirety.
In Porter v. Mason Ave. Holding Company, plaintiff filed a premises liability suit against Mason Avenue Holding Corp., a property owner, and MDP Enterprises, a snow removal contractor, after plaintiff slipped and fell on snow and/or ice in the parking lot of a strip mall owned by Mason Avenue Holding Corp. It was undisputed that a snowstorm took place that day, that the weather was “misting” at the time of plaintiff’s fall, and that there was about two to three inches of snow on the ground at the time of the fall.
Defendants filed motions for summary judgment relying upon the “storm-in-progress” doctrine, which provides that, despite a property owner’s duty to maintain property in a reasonably safe condition, they will not be held liable for accidents caused by snow or ice that accumulated during an ongoing storm or a recently ceased storm before an adequate period of time has passed. Under this doctrine, the question of what constitutes an “adequate period of time” is an issue to be decided by the Court as a matter of law. The contractor defendant also raised the argument that, as a snow removal company, they owed no legal duty to the plaintiff. Defendants supported their motions for summary judgment with an expert report prepared by a Senior Forensic Forecast Meteorologist, which concluded that the winter storm was ongoing at the exact time of plaintiff’s fall. Plaintiff opposed defendants’ motions by attempting to raise a triable issue of fact; specifically, that the winter storm had ceased by the time of the fall. Plaintiff, however, failed to offer his own expert analysis to counter the defendants’ report. The Court held that even though there may have been a brief lull in the severity of the winter storm, the storm was still ongoing and therefore the “storm-in-progress” doctrine applied and defendants were not liable.
The Court also held that the snow removal contractor owed no legal duty to the plaintiff. The court noted that a limited contractual undertaking to provide snow removal services generally does not render the snow removal contractor liable in tort for the personal injuries of third parties. The court also identified three exceptions to this general rule: (1) where the contracting party launches a force or instrument of harm, (2) where the plaintiff detrimentally relies on the performance of the contracting party, or (3) where the contract party has entirely displaced the other party’s duty to maintain the premises safely. The Court held that the second and third exceptions did not apply, primarily because the plaintiff had alleged that Mason Avenue’s agents had participated in snow removal in the past. The court also found that the first exception was not applicable because MDP Enterprises had not yet begun their snow removal, as supported by plaintiff’s allegation that he did not see anyone removing snow, and the snow on the ground was undisturbed. The court concluded that no applicable exceptions existed that would place a legal duty of care on the snow removal contractor towards plaintiff as a third party.
Accordingly, the Court held that the “storm-in-progress” doctrine applied and that the snow removal contractor owed no legal duty to the plaintiff. The New York State Court therefore granted the defendants’ motions for summary judgment.
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