One of the most difficult defenses for a personal injury plaintiff to overcome is the so-called “storm-in-progress” rule. In a slip and fall on snow or ice case, if the defendant can prove that a winter storm was still in progress at the time of the fall, the case never gets to a jury. After the defendant submits pictures, certified meteorological reports, and other evidence in a motion (“on papers”), the judge decides whether a trial is necessary. In a nutshell, the rule is that a defendant landowner has a reasonable time period after a snow storm has ended to make his premises “reasonably safe.” There is no definitive time period, but the delay in removing the snow and ice must be “reasonable”.

If there is a large storm with smaller flurries that go on for hours, in the eyes of the law, the storm may be deemed “over” before the very last flake flutters to the ground. But what about a storm that comes and goes in intensity over several days? And what happens if during a “lull,” before the storm is completely over, a defendant-landowner hires someone to clean up, and the plaintiff falls after the purported “clean-up?” Can the defendant who engaged in the “clean-up” still win “on papers” by proving that the storm was still in progress “as a matter of law” when the plaintiff fell?

DeMonte v. Chestnut Oaks at Chappaqua, 134 A.D.3d 662 (2d Dep’t 2015), presented that precise situation. In DeMonte, our client fell on her way to her condominium parking lot early in the morning. The storm had come in two waves, and at the time she fell, significantly exacerbating her previous bad back, some light precipitation in the form of frozen rain was just starting to fall in the area, according to weather reports. Plaintiff, however, testified at her deposition and by way of affidavit that there wasn’t any precipitation falling in the precise area in Chappaqua where she fell.

The trial court granted summary judgment to the defendant landowner finding that a storm was in progress, as a matter of law, at the time plaintiff fell. The trial court ruled further that there were no material issues of fact that prevented the court from granting defendant’s motion. As a result, the court dismissed plaintiff’s entire case without a trial. We appealed that decision and order.

In their motion papers, the defendants had argued that it was “one storm,” but it had come in two “waves” over several days. We argued that even if a storm was ongoing, because the property owner had elected to remove snow during a “lull” in the ongoing storm, that is, before the storm had ended, that the defendant had not met its burden to first demonstrate with admissible evidence that its own clean-up efforts during the storm were undertaken with reasonable care, and that its efforts had not created or exacerbated a natural hazard created by the winter storm.

We knew we were going to face many difficulties at trial attempting to prove, for example, that some lightly falling frozen rain had not been the ultimate cause of our client’s slip and fall. Nonetheless, we argued that before the defendant could prevail “as a matter of law” on its “storm-in-progress” defense “on papers,” that it first had to prove, “as a matter of law,” that its snow removal efforts during the storm had not made the parking lot more dangerous than it would have been had those efforts not been undertaken. We argued that there were material facts in dispute on that point, that defendants had not met their burden and that the case should be heard by a jury.

How did we go about showing that?  Well, defendants admitted that they had been “plowing” the parking lot on the previous day, some fourteen hours before our client fell. Defendants themselves had submitted a “time sheet” showing when they had arrived at the parking lot and when they left. This “time sheet” was evidence, because it was considered a “business record.” The “time sheet” was initialed by a “supervisor,” but the sheet did not indicate whether anyone had salted or sanded after plowing the parking lot. The defendants did not submit an affidavit from the supervisor who initialed it, nor did they submit an affidavit from any worker who was present. The defendants likewise never produced the supervisor or any workmen at a deposition.

We argued that the “time sheet” was actually helpful to us because while it demonstrated that the defendants had been out there “plowing,” they had no pictures showing what it looked like after they plowed. Nor did the “time sheet” show that the relevant “boxes” indicating “salted and sanded” had been checked. The upshot was that the defendants’ papers did not “prove” that they had left the parking lot in a reasonably safe condition after they plowed it.

Further, the weather reports demonstrated that at the time the plowing was finished in mid-afternoon, the temperature was significantly above freezing and remained that way for a number of hours before dropping rapidly late in the evening and dipping just below “freezing” early the next morning.

Our client had taken photographs of the parking lot shortly after she had fallen. The photographs showed that the job was not completed--the defendants had pushed the fallen snow from one side of the lot to the other, leaving some high mounds of snow and isolated patches of snow here and there. We argued that because the plaintiff had testified that the parking lot was in the same condition that was depicted in the photographs as it was when she fell (that is, filled with mounds of snow that were partially melted, leaving a glassy, icy surface everywhere), that there were questions of fact as to whether defendants had made the condition worse than it was before they plowed. We argued further that because the plaintiff had testified that there was no sand or salt visible anywhere in the parking lot as confirmed by the photographs, that at the very least there was a “question of fact” whether the defendants had fulfilled their duty not to exacerbate an already “dangerous” natural condition--a snow-covered parking lot. Put differently, we argued that it was necessary for a jury to decide whether removing freshly fallen snow--without putting down salt or sand--made the parking lot more dangerous than it would have been if they had simply left it unplowed.

The appellate division reversed the trial court’s decision to throw us out of court, holding that the condominium complex owner, defendant, Chestnut Oaks, “failed to make a prima facie showing that the snow removal efforts undertaken by Hudson Valley [whom it had hired to clean the snow] during the storm did not create the allegedly hazardous icy condition which resulted in the plaintiff's injuries . . . . Since the Chestnut Oaks defendants failed to meet their burden on their cross-motion, the Supreme Court should have denied the cross motion, without regard to the sufficiency of the plaintiff's opposition papers.” DeMonte v. Chestnut Oaks at Chappaqua, 134 A.D.3d 662, 664 (2d Dep’t 2015). (Put differently, the appellate division said that the court should not have even considered how hard it might have been for us to win at trial, but should have first analyzed whether defendants had proven everything they had to prove to “win” on “papers.”

As a result of getting the trial court reversed, the defendants decided to settle the case before trial for $195,000 rather than risk a trial before a jury.