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Brutal Blizzards: What the NY Homeowner Should Consider

Snowy HouseFor many, winter time signals holidays, snow days, sledding, and winter sports. The chilling reality is that in winter inclement weather can lead to more dangerous road conditions, delayed trains, canceled flights, and slip and falls. What should you know about a snow related injury on your property?

Under New York premises liability tort law, landowners are responsible for keeping property in a safe condition and taking care to not create a dangerous condition. This means property owners must practice reasonable care and examine the property, including walkways, entranceways, even driveways and parking lots to check for any dangers, such as snow or ice, existing on the land. Homeowners should also check local city and town laws regarding responsibilities for snow and ice removal on common areas such as sidewalks.

A landowner can be liable for a slip and fall injury on the property when there is both notice of the snowy or icy conditions that caused the injury and a reasonable duration of time passed to cure the dangerous condition after the snowfall. Liability, particularly the standard of care owed, is not affected if the person is a friend, mailman, or an intruder because New York law no longer differentiates the duty owed between invitees, licensees, or trespassers on the property. Basso v. Miller, 40 N.Y.2d 233, 241 (N.Y. 1976).

Notice can exist in different ways. A homeowner may have actual notice of the snowy or icy condition if the defect is visible, or if the homeowner is present at the time of the accident, or previously received complaints about the dangerous area. Byrd v. Church of Christ Uniting, 192 A.D.2d 967, 969 (3d Dep’t 1993). “Constructive” notice may exist if the dangerous condition is apparent and has been for enough time that the homeowner could have found and remedied the issue. Gordon v. Am. Museum of Natural History, 67 N.Y.2d 836, 838 (1986).

Also consider that homeowners with no actual or constructive notice could still be liable to an injured person on the property if the dangerous or defective snowy condition was created by the landowner. One example occurred when the homeowner removed the gutters during a home improvement project and allowed rain water to fall off the roof creating an icy puddle below that plaintiff slipped on and was injured. Merlo v. Zimmer, 231 A.D.2d 952 (4th Dep’t 1996).

Time is the remaining factor. A plaintiff also would have to show that a substantial length of time passed and the landowner still had not remedied the dangerous condition, or that the area was continuously left unfixed. Hammon-Warner, 797 F.Supp. 207, 211 (E.D.N.Y. 1992); Solazzo v. N.Y. City Transit Auth., 21 A.D.3d 735, 736 (1st Dep’t 2005).

Homeowners that are infirm or even away for the winter season should take as many reasonable steps to hire a snow removal contractor or ask neighbors to plow in their absence. Responsibility to maintain a home safe from snow and ice is not halted during a vacation away. Carlson v. Lyon, 289 A.D.2d 835, 836 (3d Dep’t 2001). Hiring someone or asking a friend to remove snow from the property may provide peace of mind during a snowstorm but it does not mean the landowner would be insulated from liability if a third party slips and falls. Landowners that hire a contractor to plow, shovel, lay salt/sand, or perform other snow removal duties on their property are in many instances still liable to a plaintiff injured as a result of the wintry mix on the property. Again, this is because it is the duty of the landowner to maintain their property in a safe condition.

To prevent your guests from hurting themselves on your wintry property maintain steps and walkways by shoveling, using rock salt, sand, or another de-icing compound.[1] Observing the blustery conditions along with a severe weather report provides notice to the homeowner that potentially hazardous conditions could exist on the land and should be remedied after a reasonable amount of time has passed after the snowfall. Be aware that it does not matter if a person that slips and falls on a wintry condition on your property is an owner, guest, friend, or trespasser – the homeowner must take steps to avoid risk to anyone that could be foreseeable.

[1] CDC http://emergency.cdc.gov/disasters/winter/duringstorm/outdoorsafety.asp

Eileen Libutti, Esq.
Managing Partner, NYC
ehlibutti@lewisjohs.com

and

Julie Ruggieri, Esq.
Associate
jcruggieri@lewisjohs.com

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