Winter is coming, along with winter-related hazards. Among them is so-called “black ice“.
In a recent slip/fall case, Rodriguez v. Bronx Zoo Restaurant (decided Oct. 1), the Appellate Division, First Department reversed the trial court’s grant of summary judgment to defendants. Plaintiff alleged that she slipped on a patch of black ice on a “dirty or filthy” sidewalk.
Initially, the court found that defendants failed to carry their initial burden because they failed to “submit evidence sufficient to establish that they did not have constructive notice of the hazardous icy condition on the sidewalk in front of their franchise restaurant on which plaintiff allegedly slipped.”
The law provides:
In cases involving slip and falls on icy sidewalks, a defendant moving for summary judgment must proffer evidence from a person with personal knowledge as to when the sidewalk was last inspected or as to its condition before the accident.
The court outlined defendant’s proof deficiency:
[C]limatological records reflect that the area had last received precipitation two days prior to the January 17, 2009 accident, and that the temperature remained below freezing during the interim period. Defendants’ supervisor, who only visited that franchise twice per week, attested that the employees would typically respond to winter storms by shoveling the sidewalk, and then applying rock salt. However, she had no personal knowledge of whether this procedure was followed in response to this storm, did not aver that she was present on either the day of the storm or the accident, and offered no evidence as to when the sidewalk had last been inspected or cleaned of snow, ice, or other debris. Hence, defendants’ evidence was not probative of lack of actual or constructive notice, and the evidence of their general procedures, standing alone, was insufficient to satisfy their burden on summary judgment.
Therefore, since defendants failed to meet their initial burden, their motion should have been denied without regard to the sufficiency of plaintiff’s opposition papers.
However, the court found that even if defendants met their burden, plaintiff raised triable issues of fact as to whether defendants had constructive notice of the icy condition.
Specifically, it observed:
there had been no further precipitation since the storm two days before the accident, and plaintiff and her mother both described the hazard as a patch of black ice, and averred that the sidewalk was dirty or filthy, raising the inference that the condition could have been present for up to two days.
Judge Friedman concurred separately, observing that evidence submitted by plaintiff – namely, climatological records reflecting that the temperature last rose above freezing on Jan. 14 (three days before the Jan. 17 accident) and that accumulated precipitation had been on the ground continuously since Jan. 10 – created a triable issue of fact. He reasoned:
From this data, it may reasonably inferred that the ice patch had formed from the melting and re-freezing of accumulated snow or ice pellets more than two days before the accident, and defendants could reasonably be found to have had constructive notice of an icy condition that had been present for more than two days.