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Court of Appeals weighs in on Storm in Progress Sherman v. N.Y. State Thruway Authority ______N.Y. ______ (2016)

May 20, 2016 • Posted By Joseph A. French • Insurance Coverage

The Court of Appeals recently weighed in on the “storm in progress” doctrine. Sherman, a state trooper, slipped and fell on an icy sidewalk outside his barracks in Newburgh, New York.  He filed suit and claimed the defendant had negligently failed to maintain its sidewalk by its failure to remove the ice and place salt on the sidewalk. 

            The defendant’s summary judgment motion was denied by the Court of Claims due to questions of fact.  The Court of Appeals affirmed the Appellate Division’s grant of summary judgment to the Thruway.  “Although a landowner owes a duty of care to keep his or her property in a reasonably safe condition”, he “will not be held liable in negligence for a plaintiff’s injuries sustained as the result of an icy condition occurring during an ongoing storm or for a reasonable time thereafter” (Solazzo v. New York City Tr. Auth, 6 NY3d 734, 735 [2005]).  However, the  Thruway submitted “uncontroverted” evidence that a storm was ongoing at the claimant’s fall. 

            “The undisputed facts that precipitation was falling at the time of claimant’s accident and had done so for a substantial time prior thereto, while temperatures remained near freezing , established that the storm was still in progress and that the Authority’s duty to abate the icy condition had not yet arisen.”

 

            The Court found that plaintiff, who had admitted an ice storm had occurred before he fell, failed to raise a triable issue of fact.