August 13, 2019
MKC&I’s Syracuse, New York office recently obtained dismissal of a premises liability lawsuit against one of our clients, a sporting goods retailer, in Onondaga County, New York based on the “storm in progress” defense. In New York, this common law defense is available to property owners who are alleged to have allowed a dangerous snow and/or ice condition to have accumulated on their property. It provides that property owners are not obligated to clear their properties of snow and/or ice (or other naturally accumulating hazards) while the storm causing those hazards remains in progress.
The injured plaintiff’s attorney had argued that MKC&I’s client should have had to prove, with direct evidence, active snowfall at the precise location of the store. Our client demonstrated, by using data from the closest local weather station, that the storm was ongoing and that no duty to clear storm-related conditions existed at the time of the plaintiff’s fall. A light snow had existed throughout the day of the accident, and the plaintiff herself had testified that there was a “flurry” of snow at the time of her fall. Plaintiff’s attorney countered that the weather station relied upon was more than four miles away, and that its records may not have been representative of the area of the fall itself.
The court, relying on Fourth Department precedent cited by our firm, ultimately agreed and dismissed the six-figure plus claim, noting that a property owner need only show that it continuously snowed “in the region” to support the storm in progress defense.
For more information on this case, or on MKC&I’s premises liability practice in upstate New York, please contact MKC&I’s Finney Raju at fraju@mcgivneyandkluger.com or at (315) 473-9648.