A Guide To Evaluating Snow & Ice Cases

• Published date: 11 November 2021
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Personal Injury
• Law Firm: Lewis Brisbois Bisgaard & Smith LLP
• Author: Mr Nicholas Hurzeler and Greg S. Katz

As the winter season nears, defendant property owners are reminded that New York law imposes liability for sidewalk accidents resulting from slip and falls on snow and ice. Within the City of New York, Administrative Code ' 7-210 imposes liability on the owners of real property (other than single-family dwellings) to maintain an abutting sidewalk in a reasonably safe condition, which includes the removal of snow and ice.

Some of the most important issues in this area of the law were recently reaffirmed by New York's Appellate Division in Zamora v. David Caccavo, LLC, 190 A.D.3d 895 (2d Dept. 2021). In particular, that the Court of Appeals made clear in 2019 that the statutory non-delegable duty to remove snow and ice from sidewalks extends even to out-of-possession landowners, who, although they may shift the work of maintaining the sidewalk to another, "cannot shift the duty, nor exposure and liability for injuries caused by negligent maintenance, imposed under [Administrative Code '] 7-210." Xiang Fu He v. Troon Mgt., Inc., 34 N.Y.3d 167, 174 (2019). In other words, even if the defendant leases the property to a tenant who is obligated under the lease to maintain the property in every way, including snow and ice on sidewalks, the defendant cannot escape liability by claiming the tenant is solely responsible for the plaintiff's loss. On the other hand, property owners are not strictly liable for all personal injuries that occur on the abutting sidewalks, because the statute "adopts a duty and standard of care that accords with traditional tort principles of negligence and causation." Xiang Fu He v. Troon Mgt., Inc., 34 N.Y.3d at 171.

Burden of Proof & 'Last Known Inspection'

The question often arises: what is the defendant's burden of proof on motion for summary judgment to dismiss a case arising under ' 7-210? The moving defendant has the burden of establishing, prima facie, 'that it neither created the alleged ice condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it.' Soloveychik v. Sea Isle Owners, Inc., 160 AD3d 782, 783 (2d Dept. 2018).

In response to such a showing, the plaintiffs' bar often argues that the defendant has failed to establish the 'last known inspection' as part of its burden to rule out constructive notice. "To meet its burden on the issue of lack of constructive notice, a defendant is required to offer evidence as to when the accident site was last cleaned or...