Here in New York, we just got hit with a bit of snow. Travel advisories are in effect, government offices in the 5 boroughs, with the exception of police, fire, and emergency services, will be closed on January 27, 2015. By all means, stay safe, listen to the travel advisories and keep your loved ones indoors through the storm. What happens, though, if you are required or forced to venture outside and you or someone you love encounters misfortune and slips and falls due to snow or ice? What are your rights? What can you do to protect yourself?
Property Owners Have a Duty of Care to Clear Snow and Ice from their property
Many people slip and fall on snow or ice on sidewalks, streets, driveways, stairs, or in parking areas. Snow and ice lawsuits are generally not easy cases. The laws vary from jurisdiction to jurisdiction, but here in New York, property owners and businesses have a Duty to use Reasonable Care in clearing their property and adjacent areas (sidewalks). The law requires property owners to promptly remove snow and ice to reduce the risk of slip and falls and resultant injuries. Were there reasonable efforts to clear the snow and ice in a timely fashion or has it been allowed to accumulate? If too much time has elapsed after a snowfall and before an area is cleared and salted, if necessary, the owner may be liable if someone slips and falls on the accumulated snow or ice. By the same token, pedestrians have a duty to use reasonable care and to exercise appropriate caution in traversing areas that are covered with snow and ice. If you are walking during the storm or shortly thereafter, you can obviously anticipate slippery areas and should take precautions. If you do fall, a court will evaluate your contributory negligence as a factor, which may reduce your recovery for injuries you suffer.
Storm in Progress Rule – You Generally Cannot Recover
Under what’s called the “storm in progress” rule, a property owner will generally not be held responsible for accidents occurring as a result of snow and ice until an adequate period of time has passed after the storm allowing the owner a reasonable opportunity to clear the area and eliminate the hazard. Certified weather reports or testimony from a meteorologist will be used as evidence to determine if the storm was still ongoing at the time of the accident, or if enough time had passed so that the owner, managing agent or responsible party should have taken adequate measures to clear and make the area safe.
Cause and Create, Notice & “Black Ice”
When a property owner creates a dangerous condition or has actual or “constructive” notice of it, the owner may be liable for a resulting accident. For instance, if the property owner’s snow and ice removal efforts are not done properly and ice is left in the area or if ice is actually created by the snow removal, and an accident results, the owner will be liable for the injuries suffered. If, for example, the property owner piles snow in an area of a parking lot or sidewalk, which then begins to melt after the storm, and then freezes again, creating a dangerous icy condition, the owner may be held responsible for a slip and fall on that ice. If the manner in which an area is shoveled or plowed causes black ice, which is particularly dangerous since it may be difficult for a pedestrian to see, an owner may be liable for resulting accidents.
Importantly, if you do have the misfortune of injuring yourself due to a slip and fall on snow or ice on (some) public sidewalks or within a crosswalk that has not been properly plowed or cleared, the City may be liable. However, you will not be able to file a lawsuit, even if the City is responsible, unless you file a Notice of Claim within 90 days after the accident. If you or your attorney does not file that Notice of Claim on time, you will be prevented from successfully filing a lawsuit (with some very limited exceptions). That is why it is crucial to consult with an attorney immediately after an accident.
A Picture is worth a Thousand Words
If you have injured yourself on a particular snowy or icy condition, try to get a photograph of the area as quickly as possible after the accident. If you are unable to due to your injuries or transport to the hospital emergency room, please contact someone immediately and have them take a picture of the area for you.
REMEMBER, BE CAREFUL AND AVOID ACCIDENTS. IF SOMETHING HAPPENS, CONTACT AN ATTORNEY IMMEDIATELY TO EXPLORE YOUR RIGHTS!
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