Evidence Case Of The Week #4
Storm In Progress Doctrine: How to establish (or evade) this defense?
Over the years the legal principle which eventually gave rise to the “Storm In Progress” Doctrine morphed from the concept that municipalities are not negligent for failure to remove “all” snow and ice off a sidewalk,[i] to an assessment, of whether “a reasonable time has elapsed between the end of the storm giving rise to the icy condition and the occurrence of the accident,”[ii] so as to warrant imposing liability on the landowner for the dangerous condition.
As the oft cited Court of Appeals case in this area, Sherman v NY State Thruway Auth., 27 NY3d 1019 (2016), held: “[a]lthough 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.’” Id., at 1015.
The critical element of the Doctrine is proving or disproving that a storm was either in progress or recently ended, such that a reasonable time had not elapsed to allow for the property owner to remediate the snow and/or ice. How exactly is this accomplished? Two recent Appellate Division cases help shed some light on the evidence required.
In Rodney v 840 Westchester Ave, LLC, 2026 NY Slip Op 00435 (1st Dep’t 2026), the defendants failed to demonstrate that they were protected from liability for plaintiff’s accident by the Storm in Progress Doctrine.
The plaintiff claimed to have slipped on a wet floor when entering the subject building. Plaintiff further alleged that at the time of incident there were no caution or wet floor signs in the area where she slipped. The plaintiff testified that after she fell she saw the floor was wet, and her shirt and pants were wet as a result of falling.[iii]
Defendants moved for summary judgment dismissing the complaint on the grounds that there was a storm in progress. Defendants “did not submit any weather reports or expert opinions to show an ongoing storm at the time of plaintiff’s fall, and plaintiff’s conclusory, affirmative response when asked whether it was ‘snowing when [her] accident happened’ is insufficient to show that a storm was in progress.” Id.
The Rodney Court held “Defendants failed to make a prima facie showing that they took reasonable precautions to remedy the wet condition on the lobby floor.” It was further held “Defendants also failed to demonstrate that they lacked constructive notice of the hazardous condition caused by the wet and slippery floor where plaintiff fell, as they failed to demonstrate when they last inspected the lobby on the day of the accident… Nor did defendants establish that they lacked actual notice, as they failed to produce a witness to testify that no complaints about the location of plaintiff’s fall were received before the accident and that there were no prior incidents in that area before plaintiff fell.” Id.
Importantly, “the human resources manager for third-party defendant Montefiore Medical Center, testified that on the day of plaintiff’s accident, she had also slipped in the lobby prior to plaintiff’s fall and that she was aware of two other people who had slipped in the lobby before plaintiff’s fall as well.” Id.
In Jackson v A M E Zion-Trinity Hous. Dev. Fund Co., Inc., 2026 NY Slip Op 00243 (2d Dep’t. 2026), “plaintiff commenced this action to recover damages for personal injuries that he allegedly sustained on December 4, 2019, at approximately 7:50 a.m., when he slipped and fell on a patch of ice in a parking lot of the defendant Harriet Tubman Terrace Apartments.”
As noted by the Jackson decision, “’[i]n moving for summary judgment in an action predicated upon the presence of snow or ice, the defendants [have] the burden of establishing, prima facie, that [they] neither created the snow or ice condition that allegedly caused the plaintiff to fall nor had actual or constructive notice of that condition’ (Gayle v City of New York, 230 AD3d 653, 654; see Islam v City of New York, 218 AD3d 449, 450). “Accordingly, a property owner seeking summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it” (Ravello v Long Is. R.R., 237 AD3d 1123, 1124 [internal quotation marks omitted]; see Gayle v City of New York, 230 AD3d at 654).” Id.
The Court held, “the defendants failed to establish, prima facie, that they lacked constructive notice of the alleged icy condition. The defendants’ maintenance employee provided only general information about his snow and ice removal practices, and he failed to specify when he last salted, removed ice from, or inspected the area where the plaintiff fell relative to the time of the accident (see Ravello v Long Is. R.R., 237 AD3d at 1124; Edwards v Genting N.Y., LLC, 217 AD3d 749, 750).”
Rodney v 840 Westchester Ave, LLC, 2026 NY Slip Op 00435 (1st Dep’t 2026)
Decision Date: January 21, 2026
Jackson v A M E Zion-Trinity Hous. Dev. Fund Co., Inc., 2026 NY Slip Op 00243 (2d Dep’t. 2026)
Decision Date: January 29, 2026
Practical Practice Point:
While expert testimony is not required in all slip and fall cases, when the Storm In Progress Doctrine is invoked, admissible weather data and testimony by an expert qualified to render opinions on whether there was a storm in progress at or near the time of an incident, is generally required where the timing and cessation of the storm relative to the date and time of the plaintiff’s accident is in controversy. As set forth in Rodney, supra, Defendants “did not submit any weather reports or expert opinions to show an ongoing storm at the time of plaintiff’s fall.”
It should be noted that determining if there was a storm on at date of incident does not have to be left up to subjective memory. Use of publicly available websites can aid in determining the applicability of this doctrine to your case. While none of us will ever even pretend to take on the mantle of an expert, (and interpretation of meteorological data certain requires one), the National Centers for Environmental Information, National Oceanic and Atmospheric Administration has data for weather centers across the US dating back to at least 1950.[iv]
[i] “The rule is that a failure to get all the snow and ice off the walk is not negligence. (Spicehandler v. City of New York, 303 N. Y. 946; Hendley v. Daw Drug Co., 293 N. Y. 790; Kelly v. Rose, 291 N. Y. 611; Connolly v. Bursch, 149 App. Div. 772.)” Herrick v Grand Union Co., 1 AD2d 911 (3d Dept 1956); (Schlausky v New York, 41 AD2d 156 [1st Dept 1973])(“ A failure to get all of the ice or snow off of a sidewalk is not negligence ( Herrick v. Grand Union Co., 1 A D 2d 911).”); (Mandel v New York, 44 NY2d 1004 [1978])(“[T]he City of New York was negligent in permitting the extraordinary snowfall to exist for an unreasonable period of time or that it had a reasonable opportunity to remedy the condition ( Reutlinger v City of New York, 281 NY 592; Schlausky v City of New York, 41 AD2d 156, 158).”)
[ii] Valentine v New York, 86 AD2d 381 (1st Dept 1982); See also, (Solazzo v NY City Tr. Auth., 6 NY3d 734 [2005])(“A property owner 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 (see Valentine v City of New York, 86 A.D.2d 381, 383, 449 N.Y.S.2d 991 [1st Dept 1982] affd 57 N.Y.2d 932, 443 N.E.2d 488, 457 N.Y.S.2d 240 [1982]).”)
[iii] A copy of the record on appeal is available through the NYSCEF Docket for the appeal.
[iv] https://www.ncdc.noaa.gov/cdo-web/datasets/LCD/stations/WBAN:94728/detail