For those of us living in New York State, and in particular the Western and Central regions where I’m from, snow and ice are most definitely the norm. Learning how to survive and navigate the stuff can at times feel like a rite of passage as you’re growing up, but it’s one that we all go through. Every now and again, however, that snow and ice can get the best of someone, causing him to slip, fall and injure himself. When that does happen, the question often becomes one of what potential liability does another have for the injuries you’ve suffered?

Slip and fall litigation in our part of the state is incredibly common, but one’s ability to recover is always dependent on his particular fact pattern. Before one can expect to recover anything, there are a few issues that need to be addressed. The major underlying issue forming the lynchpin of slip and fall cases relates to one’s ability to demonstrate liability, which is often easier said than done.

As a plaintiff in a slip and fall suit, you have the responsibility of establishing that a property owner negligently failed to correct a dangerous snow and ice condition. Even if you’ve slipped and fallen on snow that a property owner has not yet removed, the inquiry isn’t that easy and doesn’t end there.

New York law recognizes that a property owner’s duty to correct a dangerous snow and ice condition is limited to ice and snow about which they are aware and have a reasonable time to correct. Short of a defendant actively acknowledging notice of a condition and his own failure to remedy it, duty is often times established through what is known as constructive notice. At its simplest level, constructive notice suggests that, given the overall circumstances surrounding a matter, a party knew or should have known about the existence of a dangerous condition and should have taken steps to correct it.

In order to establish constructive notice, plaintiff’s counsel often relies on climatogical data and meteorological experts to establish not only the weather conditions at the time of an accident, but also pertinent freeze and thaw cycles for the time frame in question that would have affected the snow and ice’s material condition. Other factors that are typically examined include the size, thickness and location of the ice in order to help determine whether the condition was one that had potentially been left unremedied for a significant period of time. All of these factors can prove vitally important to establishing liability against a property owner for his neglect.

Before we can close the book on this chapter, however, there is another important issue that we should revisit.

As mentioned earlier but not really discussed, property owners typically must be given a reasonable opportunity to remove a dangerous condition. What does that mean exactly? There’s unfortunately no bright line rule, and each individual case needs to be evaluated on its own to determine the adequacy of an owner’s response. That said, there is one other important factor that may tie in to the reasonableness of one’s response, namely a legal doctrine in New York known as the storm in progress rule.

While one can likely surmise what the storm in progress rule means, the full extent of its impact may not be readily understood. In essence, New York courts adhere to the position that property owners are not required to clear away snow and ice while a storm is actually in progress, even if there is a brief lull in that storm. Instead, property owners are afforded a reasonable time once a storm ceases to remove the now newly formed dangerous condition. This oft times ignored factor has proved the death knell to many a plaintiff’s slip and fall action. Counsel should always be cognizant of its import on a case where the doctrine could potentially be used as an affirmative defense to avoid liability.

There is one last twist to the story that I’ll include for your consideration. What happens if you slip on old ice that wasn’t properly cleared in the first instance, but it happens during an ongoing storm? Interesting quandary, eh? The good news is that the law recognizes a plaintiff’s right to recover against a property owner that failed to remedy the old condition even though the incident occurred during an ongoing storm. The bad news, however, is that it may be difficult to establish that the condition was in pre-existent rather than a result of the ongoing storm. If counsel can overcome that hurdle, one’s ability to prove liability becomes that much easier, although the more likely scenario is that the plaintiff will merely have an extra question of fact for the jury’s consideration should the case go to trial.

There is no doubt that injuries suffered in a slip and fall due to the failure of another to properly remove snow and ice can be potentially devastating. While these accidents sometimes just happen without fault, there are times when, with the proper care and effort, these accidents can entirely be avoided. It’s often times difficult to assess your own situation to determine which side of the coin you might fall on. With that in mind, if you think you are the victim of someone else’s negligence, don’t hesitate to consult with counsel to ensure that your rights are protected from the start.