Plaintiff's Perfect Storm


The Appellate Division, Second Department, just issued a notable decision regarding the “storm in progress” rule. Under the “storm in progress” rule, a property owner will not be held liable in negligence for accidents occurring as a result of a slippery snow or ice condition occurring during an ongoing storm or for a reasonable time thereafter.

In Gervasi v Blagojevic, the plaintiff allegedly slipped and fell on ice on a sidewalk abutting the defendant’s property in Middle Village, Queens, and brought suit against the property owner. The defendant moved for summary judgment dismissing the complaint, arguing that he could not be held liable because the icy condition was created by precipitation during a storm in progress. The Supreme Court granted the defendant’s motion, and the plaintiff appealed. The Appellate Division reversed the Supreme Court’s decision, finding that although the defendant established that a storm was in progress at the time of plaintiff’s slip and fall, the plaintiff raised a triable issue of fact as to whether a separate icy condition existed prior to the storm in progress.

In the plaintiff's affidavit in opposition to the defendant’s summary judgment motion, she stated that on the morning of the accident, the ice on the sidewalk was approximately one inch thick. The plaintiff further submitted an affidavit from a meteorologist who opined that given the small amount of precipitation that fell on the morning of the accident prior to the slip and fall, the one-inch-thick layer of ice was not the product of the storm in progress. Instead, the plaintiff's expert opined that the ice was caused by substantial precipitation from a storm that occurred one or two days prior to the storm in progress. Contrary to the Supreme Court's determination, the Appellate Division found that the plaintiff’s expert opinion was not speculative. In this regard, the appellate court reasoned that plaintiff’s expert relied upon undisputed meteorological records, considered the plaintiff’s description of the ice, and explained how the meteorological events led to the formation of the particular patch of ice.