Skating Through Snow and Ice Mishaps - A Primer in New York’s Premises Liability Law

Snow and ice present a multitude of legal challenges each year and the State of New York experiences all types of winter weather conditions. The experience of one region can drastically differ from that of another, and how the population of a region copes with snow and ice varies as much as the weather itself.  What is considered an acceptable snow and ice removal effort in one area may not be acceptable in another; it is all relative.  Therefore, when confronted with a storm you must look to local municipal codes, statutes, ordinances, etc. to determine the applicable snow and ice removal duties and procedures for your locale.

It is important to be aware of the ways in which municipal requirements for snow and ice removal vary by location. For example, New York City Administrative Code (NYCA) § 7-210 obligates owners or managers of property abutting a sidewalk or lot to remove snow and ice that naturally accumulates on the sidewalk or lot adjacent to their property.[1] NYCA § 16-123 further requires such owners, lessees, tenants, occupants, or other persons to remove snow from paved sidewalks within four hours after the snowfall ceases.  Contrastingly, in the town of Poughkeepsie, an area that usually receives more snow than New York City, if the snow falls between 6:00 p.m. to 6:00 a.m., snow and ice removal is to take place within six hours after the expiration of such period, or at 12:00 p.m.  The City of Poughkeepsie Code explains that if snow falls between 8:00 p.m. and 8:00 a.m., then ice and snow is to be removed within twelve hours after the expiration of such period.  Thus, varying municipal requirements for snow and ice removal are important to be aware of, as they impact the evaluation of parties’ duties in each case accordingly.

Where a duty to remove snow and ice exists, the reasonableness standard applies.  This is significant because, depending on the circumstances, the reasonableness of removal efforts may give rise to numerous defenses.  For instance, pursuant to the “storm in progress” rule, a property owner will not be held liable for accidents occurring as a result of accumulation of snow or ice on its premises until an adequate period of time has passed following the cessation of the storm Grau v. Taxter Park Associates, 283 A.D.2d 551, 552, 724 N.Y.S.2d 497, 498 (2d Dep’t 2001). What constitutes “an adequate period of time” also varies depending on the nature or severity of the storm (i.e. it will take less time to clear three inches than it will to clear 23 inches of snow.)  The type of precipitation can also impact the reasonableness of efforts to remove snow and or ice.

Keep in mind that while property owners are typically responsible for the removal of snow and ice, that obligation can be transferred to others, with limitations.  For instance, a tenant may take on the responsibility for snow and ice removal pursuant to their lease agreement.  However, if the lease agreement states that the landlord retains responsibility for snow and ice removal, the obligation is not transferred to the tenant.  In any case involving a leased property, it is imperative to review the lease to determine who had responsibility for snow and ice removal.

Another frequently encountered scenario is where a property owner or tenant retains an independent contractor to fulfill their duty to remove snow and ice from a property.  These contracts often consist of more than just a proposal for services; they may require the contractor to automatically come to the property when certain weather occurs, such as the accumulation of two or more inches of snow, or when icing is forecasted.  Alternatively, the contractor may only be required to go to the property when asked to do so.  The detail of what must be done when, can vary significantly depending on the sophistication of the parties to the contract, the locations to be plowed, etc.  Contracts for snow removal will often include indemnification and/or additional insured language.  These clauses must be considered within the context and facts of each case to determine whether they apply.  As such, any contract for snow and ice removal should be reviewed as soon as possible for possible tender or other claims.

However, a contractual obligation of a snow removal contractor, will generally not give rise to tort liability in favor of a third party.  There are only three situations in which a party who enters into a contract to render services may be said to have assumed a duty of care, and thus be potentially liable in tort to third persons: (1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, “launches a force or instrument of harm;” (2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties; and (3) where the contracting party has entirely displaced the other party’s duty to maintain the premises safely.  Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 140 [2002].  As such, a property owner or tenant may remain liable to the plaintiff, while having a potential claim against their contractor.

Notice of the alleged dangerous condition is another recurring issue, especially in situations involving ice, black ice, or melt and re-freeze situations.  An injured plaintiff must prove that the defendant had notice, actual or constructive, of the dangerous condition that allegedly caused the injury.  Proving actual notice is straight forward, constructive notice, on the other hand, can be established or challenged in a variety of ways depending on the circumstances of the case.  Ice, especially black ice, is a common culprit.  If the plaintiff couldn’t see it, how could the defendant have known to notify the plaintiff?  Either side in a dispute regarding constructive notice may rely on testimony, photos, meteorological data, and reports, etc. to establish notice.  In most cases, the issue of notice will be decided upon a review of the particular facts of the case.

This is by no means an exhaustive list of what may be encountered in a snow/ice removal case, but it is an overview of issues that can occur.  Every case presents its own twists that could dramatically impact how the case is assessed.  In a nutshell, when it comes to snow and ice one size does not fit all.