Municipality Liable for Slip and Fall on Black Ice Even Without Prior Written Notice
Slip and fall cases can be notoriously difficult cases in which to prevail, especially when the location of accident is on a public area, such as a sidewalk or a parking lot. A key requirement is often the existence of prior written notice to the municipal property owner. But recently the Court of Appeals in San Marco v. Village/Town Of Mount Kisco, 2010 WL 5104993, 2010 N.Y. Slip Op. 09197 (December 16, 2010), held that since the black ice hazard at issue may have been created by the municipality's negligent snow removal efforts, and, if so, the municipality may have known of the hazard, the defendants motion for summary judgment was properly denied.
The plaintiff alleged that she slipped and fell on a patch of black ice that was caused by the melting and refreezing of a pile of snow that the Village had plowed into a row of meters adjacent to parking spaces. She further alleged both that the Village was negligent in plowing the snow so near the parking spaces and negligent in failing to take measures to remedy any dangerous ice conditions that developed. As a result of her fall, she suffered a concussion, fractured her sacrum and herniated several cervical discs. Her injuries required a bone graft and surgical installation of a titanium plate affixed to her spine and secured by thirteen screws.
The Village relied upon Village Law 6-628 and Village of Mount Kisco Code 93-47, asserting that these laws shielded it from liability in the absence of prior written notice. Pursuant to Village Law 6-628, a municipality cannot be liable as a matter of law unless written notice of the defective, unsafe, dangerous or obstructed condition or of the existence of the snow or ice, relating to the particular place, was actually given to the village clerk.
The Supreme Court denied the defendants motion for summary judgment. The Appellate Division, Second Department reversed the lower court, and the Court of Appeals reversed the appellate court and denied summary judgment.
The Court of Appeals (majority opinion by Chief Judge Robert Lippman) held that melting snow cases do not fall within the affirmative creation exception to prior written notice statutes, which requires that the action of the municipality immediately results in the existence of a dangerous condition. In dissent, Associate Judge Robert S. Smith agreed with the Second Departments opinion that the case should be dismissed because the dangerous condition was not immediately dangerous upon completion of the municipalitys work.
In language certain to be cited by many plaintiffs attorneys, the court stated: a pile of plowed snow in a parking lot is a cost-saving, pragmatic solution to the problem of an accumulation of snow that presents the foreseeable, indeed known, risk of melting and refreezing. in the case of black ice that forms from plowing snow in a municipally owned parking facility, a municipality should require no additional notice of the possible danger arising from its method of snow clearance apart from widely available local temperature data.
Also potentially useful is language in the decision that essentially held it would be negligent to plow snow high alongside active parking spaces, and to fail to salt or sand the lot on weekends, despite the fact that it remained open seven days a week.
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