Storm in Progress Doctrine Warranted Summary Judgment to Defendant in Slip and Fall Case

In reversing Supreme Court, the Fourth Department determined the “storm in progress” doctrine warranted summary judgment to the defendant in a slip and fall case.  In addition, the Fourth Department determined the plaintiff failed to raise a question of fact about whether the defendant created the dangerous condition, noting that the failure to remove all the ice and snow and the failure to sand or salt a sidewalk does not constitute exacerbation of a dangerous condition.  With respect to the “storm in progress” doctrine, the Court wrote:

We conclude that the evidence submitted by defendant in support of his motion, including an affidavit from his expert meteorologist and the weather reports upon which that expert relied, established as a matter of law that there was a storm in progress at the time of the accident … and, thus, that defendant had no duty to remove the snow and ice “until a reasonable time ha[d] elapsed after cessation of the storm” ….  The accident occurred at approximately 8:45 a.m. on December 31, 2008, when plaintiff exited defendant’s store in the City of Rochester.  According to defendant’s expert meteorologist, a snowstorm began in the Rochester area late in the evening on December 30, 2008, and continued into the next day.  At 4:15 a.m. on December 31, the National Weather Service issued a “winter weather advisory” for the Rochester area and, two hours later, the advisory was upgraded to a “winter storm warning.”  More than 11 inches of snow accumulated in Rochester on December 31, which was a record for that date, and most of that snow fell during the early morning hours.  Indeed, plaintiff acknowledged during her deposition that it was snowing on the morning in question as she drove to the store, and that testimony was consistent with the testimony of defendant’s wife, among other witnesses. Glover v Botsford…, 959, 4th Dept 9-27-13