Slip and Fall – Municipality’s Duty of Care
The New York Court of Appeals has held in the case of San Marco v. Village/Town of Mount Kisco, 2010 WL 5104993, 2010 N.Y. Slip Op. 09197, that the “immediacy requirement” for pothole cases should not be extended to cases involving hazards related to negligent snow removal by a municipality.
In San Marco, the plaintiff slipped and fell in a parking lot owned by the defendant municipality. The Village treated the parking lot for ice conditions the previous morning, but did not employ a work crew on weekends. The plaintiff fell on Saturday morning. Prior thereto, the Village had plowed snow into a row of meters adjacent to the parking spaces. As a result of the freeze-thaw cycle, snow melted and created a black ice condition on the ground. Plaintiff slipped on the ice and sustained serious injuries.
The Village asserted that Village Law § 6-628 and Village of Mount Kisco Code § 93-47 shielded it from liability since there was no prior written notice of the dangerous condition. The plaintiff argued as an exception to the prior written notice requirement that the ice was a created condition caused by the piling of snow near the parking spaces and the failure to take measures to keep the area free from ice and snow.
The lower court held that the cases of Yarborough v. City of New York, 10 NY3d 726 (2008) and Oboler v. City of New York, 8 NY3d 888 (2007) controlled in cases of melting and freezing snow. These cases respectively dealt with hazards caused by a pothole and an uneven manhole cover. They held that the “affirmative creation” exception to prior written notice statutes applies only where the action of the municipality “immediately results in the existence of a dangerous condition.” The lower court found that the Village’s action of snow plowing did not amount to an “immediate creation” of a hazard.
The Court of Appeals reversed and held that the immediacy requirement for “pothole cases” should not be extended to cases involving hazards related to negligent snow removal. The Court stated:
Considering the present facts in light of the underlying purpose of prior written notice statutes, we find these statutes were never intended to and ought not to exempt a municipality from liability as a matter of law where a municipality’s negligence in the maintenance of a municipally owned parking facility triggers the foreseeable development of black ice as soon as the temperature shifts. Unlike a pothole, which ordinarily is a product of wear and tear of traffic or long-term melting and freezing on pavement that at one time was safe and served an important purpose, a pile of plowed snow in a parking lot is a cost-saving, pragmatic solution to the problem of an accumulation of snow that presents the foreseeable, indeed known, risk of melting and refreezing.
This decision properly places a duty upon municipalities to keep their premises safe.