12/17/2013

Feelin’ Frosty

How to contain risk in snow and ice litigation.

By Jo Lynn Clemens , Brian R. Masterson

Winter is here, and the cold weather serves as a reminder to attorneys and claims professionals about snow and ice cases. From slips and falls to property damage, snowstorms create a variety of problems for property owners, municipalities, and snow removal contractors (as well as their insurers). Although snow and ice litigation follows the same basic analytical framework as ordinary negligence—duty, breach of duty, causation, and damages—this area of law often involves unique issues.

One of the first things to consider in this litigation is the type of defendant. Property owners, municipalities, and third-party snow removal contractors are common defendants. Depending on the defendant, there are several considerations that should be made early in the litigation process.

Storm in Progress Doctrine

Winter typically brings snowfall to many jurisdictions in the U.S. With many holidays and events taking place during this busy time of year, people frequently choose to travel and conduct business while snow is still falling, sometimes even during a declared state of emergency. This raises the issue of the duty owed to such persons by the property owner or manager.

The majority of jurisdictions follow what New York has labeled the “storm in progress” doctrine, where an occupier of a business premises is afforded a reasonable time after the cessation of the storm or temperature fluctuations to correct the problem. In considering the issue of whether to require a business owner to implement snow removal during a snowstorm, courts in various jurisdictions have used words such as “inexpedient” and “impractical” to describe such a requirement. In fact, a federal court went as far as saying, “A landlord is not required to be at his property, shovel in hand, catching the flakes before they hit the ground.”

The reasoning behind many of the trial and appellate court decisions on this issue is based on practicality. Courts typically find that a business owner, absent unusual circumstances, does not breach the duty of ordinary care by not removing snow or ice from outdoor surfaces during a storm, and that allowing a reasonable time thereafter to rectify the condition is sensible. Furthermore, courts have held that a temporary lull in storm activity does not trigger the property owner’s duty to clear snow and ice. In keeping with the concept of reasonableness, however, courts find that trace precipitation alone is insufficient to trigger the storm in progress doctrine.

In order for defense counsel and claims professionals to successfully assert this defense, one of the most critical steps is to obtain quality climatological data. This information can be found from sources such as the National Oceanic and Atmospheric Association (NOAA), which provides historical hourly charts of temperature and precipitation. A meteorological expert also can be an integral part of the defense in these types of cases by providing an interpretation of NOAA reports and local weather conditions, analyzing different types of precipitation (light/heavy snow), or identifying other relevant weather issues.

In the context of a dangerous snow/ice condition, oftentimes it is impossible for a plaintiff to prove that a defendant had actual notice of a particular condition. As such, in most scenarios, plaintiffs must prove their case by establishing constructive notice (i.e., that the condition existed for such a length of time that the defendant should have been aware of its existence). Hourly weather reports and meteorological expert testimony establishing the time, intensity, and duration of precipitation is critical to mounting a defense on this issue. Claims professionals and attorneys should be aware that other factors can be considered in demonstrating constructive notice such as the size, thickness, and location of ice.

Third-Party Liability

In addition to owner or occupiers of a property, third parties, such as snow removal or building maintenance contractors, also may be found liable to the potential plaintiff. In the vast majority of occurrences, snow removal defendants perform work pursuant to a written contract. In many instances, the contract is straightforward and adequately sets forth the scope of work for the contractor to perform.

Ideally, the contractor would perform work exactly pursuant to the contract specifications. This is not always the case, however. Occasionally, a snow removal contractor may engage in “assumed scope of work.” This occurs when a contractor customarily performs work that is not in strict accordance with the written terms of the contract and the owner or property manager continually permits this to take place.

This can present problems for attorneys defending both property owners as well as the snow removal contractors. Let’s look at an example. Suppose the contract for snow removal services at a particular commercial shopping center parking lot calls for curb-to-curb plowing and states, “Snow piles must be placed on grass median areas beyond the curb.” In this example, let’s assume that the snow removal contractor did not pile the snow in the median area, instead leaving it in large piles on the surface of the parking lot.

The hypothetical plaintiff sues, contending that a melting/refreezing occurrence led to an icy condition in the parking lot, causing the plaintiff to slip and injure herself. Of course, the property owner will point to the contract and attempt to shift liability to the snow removal contractor. If the contractor is able to produce evidence that the owner permitted snow piles to be placed directly on the parking lot surface following previous snow events, however, the owner may be forced to share in liability for the accident under an assumed scope of work theory.

Conversely, under certain circumstances, a snow removal contractor may be held liable for failing to provide services that the contractor was not explicitly required to perform under the contract. Suppose a snow removal contractor begins clearing drifted snow on high-wind nights for its most valuable customers and that the contractor continues this practice throughout a particular winter season. Even though the contract does not specifically call for this service (and the contractor is not paid extra for it), it can be argued that these actions constitute an assumed scope of work. If a potential plaintiff is able to prove that the accident occurred due to the contractor’s failure to provide this work, the contractor may be held liable under the concept of an assumed scope of work.

Municipal Liability

While property owners and snow removal contractors often are the main targets in snow and ice litigation, municipalities also may bear some liability.

As claims professionals and defense attorneys are well aware, municipalities enjoy numerous protections under the law for various types of litigation. Snow and ice cases against a municipality can be difficult for a plaintiff to prove. Most municipalities have statutes that generally hold that, if a person falls on a snow and/or ice condition on a municipality’s property, the municipality must have received “prior written notice” of the condition for a lawsuit to survive against it. As you might guess, it is rare for a municipality to receive prior written notice of such conditions. This often leads to cases being dismissed. There are exceptions, however.

Other than receiving prior written notice of a snow and/or icy condition, another way a municipality may be held liable is if the municipality created the condition. This is not always as straightforward as it sounds.

For example, let’s suppose that a municipal employee inspects and salts a municipally owned parking lot. Fast-forward 24 hours to a plaintiff slipping and falling on a patch of ice in the parking lot. During the 24 hours between the salting and the plaintiff’s fall, the temperature rises above freezing for 16 hours before dropping again. It is undisputed that the municipality did not receive prior written notice of any dangerous condition at the subject property. Will the municipality be held liable?

In this scenario, let’s assume a plaintiff argues that she fell on black ice that was caused by the melting and refreezing of a pile of snow that the municipality had plowed next to parking meters adjacent to parking spaces—an affirmative act by the municipality that created the hazard. The municipality likely will assert protection under the prior written notice statute, arguing that it should not be held liable for injuries on public property unless it is aware of the allegedly dangerous condition, the black ice.

Under these circumstances, the plaintiff should be able to argue that the municipality failed to inspect the parking lot for unsafe conditions after it plowed and salted, despite the fact that the municipality should have known that the temperature fluctuation could potentially create an icy condition. In support of this contention, weather records could be introduced and would likely constitute evidence that the municipality should have known that the snow piles would thaw and refreeze.

No matter what type of snow and ice case it is, there are certain steps that claims professionals and defense attorneys can take to ensure the best result possible for their clients. As with most claims, a prompt investigation is the first step—this should include a close review of all snow removal contracts, leases, and maintenance contracts. Obtaining climatology records to establish the temperature, timing, and duration of the last precipitation is essential. If the interpretation of records is a contested issue (wet, heavy snow versus light snow), a quality meteorological expert can make or break a case. Sorting through these issues as early as possible in the litigation should provide insurers and defense counsel some containment in this slippery area of law.



Jo Lynn Clemens is a claims manager with Mesa Underwriters Specialty Insurance Company (MUSIC). She has been a CLM Fellow since 2011 and also serves as the state chair for CLM's Arizona Chapter. She can be reached at jolynn.clemens@music-ins.com, www.music-ins.com.

Brian R. Masterson is an attorney with CLM Member Firm Callahan & Fusco LLC. He has been a CLM Member since 2010 and can be reached at (973) 618-9770, bmasterson@callahanfusco.com, callahanfusco.com.

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