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IN THIS SLIP AND FALL CASE, THERE IS A QUESTION OF FACT WHETHER THE MUNICIPALITY OWED A DUTY TO PLAINTIFF BASED UPON THE MUNICIPALITY’S LAUNCHING AN INSTRUMENT OF HARM; IT WAS ALLEGED THAT SALT APPLIED TO MELT ICE CREATED A POOL OF WATER WHICH FROZE AND CAUSED PLAINTIFF’S FALL (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined there was a question of fact whether the municipality, which had contracted with the school district to provide salting services, owed plaintiff a duty based upon the municipality’s launching an instrument of harm. It was alleged the defendant municipality’s use of salt to melt ice resulted in a frozen pool of water where plaintiff slipped and fell:

… [P]laintiffs submitted the affidavit of an expert, who opined that defendants’ use of sodium chloride (rock salt) created a dangerous condition and launched a force of harm because the rock salt would have caused water to flow and pool near the area where plaintiff fell. The expert further opined that, due to the temperatures on the date of the incident, the pooled water near the area of plaintiff’s fall would have refrozen quickly, thereby creating the alleged dangerous condition … . Plaintiffs also submitted the deposition testimony of defendants’ employee, who confirmed that during wintertime, when the temperature can fluctuate above and below freezing, water could accumulate in the parking lot where plaintiff fell, and that the accumulated water could then freeze when the temperature went below freezing … . We conclude that plaintiffs’ submissions raised a triable issue of fact whether defendants assumed a duty of care to plaintiff by launching the force or instrument of harm. Kirschler v Village of N. Collins, 2024 NY Slip Op 03977, Fourth Dept 7-26-24

Practice Point: Here the municipality entered a contract with the school district to salt the parking lot and other areas. There was a question of fact whether the application of salt launched an instrument of harm (forming a pool of water which froze causing plaintiff’s fall) thereby creating a duty owed plaintiff.

 

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