In addition, the relevant question of fact arises as to whether the water on the platform on which the applicant slipped and fell could have been followed by the 1.5 inches of snow that fell outside the station. Although the defendants point to cases that exclude liability for interior falls based on the Storm in Progress doctrine, these cases all involved a fall near the entrance to the interior structure. In response to this request, the Court does not rule on the applicability of the current storm doctrine. Whether the current storm doctrine is applicable is rather a question of fact. On the basis of the foregoing, the City has prima facie established a right to summary judgment. As discussed above, the question of whether the time between the end of a storm and an accident is sufficient to compel a municipality to remove snow from its sidewalks can and must have been legally decided. The relevant question is whether the storm before an accident is so strong that a delay in snow removal is legally reasonable. In this case, the climatological reports show that it had snowed only four days before the applicant`s accident and that there was an accumulation of at least 15 inches. In addition, in the seven days prior to the applicant`s accident, the temperature dropped below zero and rose only one degree above that mark. Accordingly. The fact that the city did not clean sidewalks from 1084 within four days of the end of a heavy snowfall was not legally unreasonable.
For this reason alone, the City has established a prima facie case for a summary ruling. [D]efendant notes that the weather data submitted by the Applicant was recorded approximately 20 blocks from the site of the Applicant`s accident and that, therefore, snow «could» have fallen on the road on which the Applicant fell at 7 p.m. In addition, the defendant denies that the incident occurred inside, arguing that «contrary to the plaintiff`s opposition documents,» the incident «occurred on a staircase exposed to the outside elements (snow, wind, etc.).» Thus, a contentious question of fact arises as to whether a storm was in progress at the time of the occurrence or whether a reasonable period of time had elapsed after its closure. The plaintiff testified that she dropped her daughter off on the campus of the defendant university («Fordham») to attend a retreat. She recalled that earlier that day it was «cloudy» and «foggy» when she went to Fordham that morning, and that when they got to school, «it was cloudy and… Clarification [on]». The plaintiff could not recall whether precipitation had fallen when she arrived at Fordham, but said the temperature was «about .. Freezing»[.] Over the years, one of the cornerstones of teaching legal prose has been to combat the evils of poorly worded statements, starting with banishing the question of whether. The preferred format is the syllogistic depth problem (statement-statement question), which you can read in detail in The Winning Brief (see the third issue greatly expanded next month), Garner on Language and Writing (pp.
120-48), or The Elements of Legal Style (pp. 183-87). The above testimony shows that the condition of the roadway the day before this accident is indeed unclear. Plaintiff Lorman could not recall exactly whether (1) he had crossed the exact accident scene the day before his accident or (2) whether there was ice in the area the day before his accident. Plaintiff James-Lorman testified that she could not recall whether ice was present the day after her accident, when the area was covered in fallen snow. Having regard to all the reasonable conclusions of Man1er most favourable to the opponent of an urgent claim, this statement cannot conclusively determine how long this particular ice condition has existed. In any event, the parties` conflicting affidavits as to whether the ice that would have caused the applicant`s accident formed prior to the storm or was created by the precipitation of the current storm raises a question of fact as to constructive recognition of the ice condition that caused the applicant`s injury. The main issue before the court was whether climatological records could be used without an expert affidavit to support a prima facie case entitling the defendant to summary judgment in a slip-and-fall case involving alleged ice conditions. It appears that this issue has not been dealt with directly by the courts. Against the respondent`s claim, the plaintiffs argue that, contrary to the respondent`s assertion, neither plaintiff testified conclusively that they did not see the ice patch in the area prior to the accident. The applicant only testified that it was «likely» that he had walked in the area the day before, but that he did not remember with certainty or could remember with certainty if there was ice cream. Although the co-plaintiffs` testimony regarding the condition of the ice was contradictory, all contradictions must be resolved in favour of the opponents of summary judgment.
In addition, the applicant submits an expert opinion of meteorologist Alicia C. Wasula, Ph.D. Dr. Wasula. Dr. Wasula notes, among other things, that the defendant`s expert relied on weather data from a weather station located several kilometers from the accident site. After reviewing Doppler photos and other data from the weather station, Dr. Wasula suggested that while there may have been precipitation in the area, it likely would have melted and dried before reaching the ground, up to 1 point after the accident, when that precipitation accumulated. This is consistent with both claimants` statement that there was no precipitation at the time of the accident. Attend the most popular CLE seminar ever. More than 215,000 people – including lawyers, judges, trainee lawyers and paralegals – have benefited since the early 1990s.
You`ll learn the keys to professional writing and learn no-frills techniques to make your letters, memos, and briefings more powerful. Smith learned of the plaintiff`s accident when he was called by a safety officer on duty at McMahon Hall. When Smith responded to McMahon Hall, he spoke to the complainant, who told him she had fallen while walking to a garbage can outside McMahon Hall. The plaintiff also stated that ice was involved in her fall. Smith then observed that the sidewalk outside McMahon Hall was «very icy» there. The ice «was clear. It was almost like black ice to me. Smith could not recall whether the area in which the plaintiff fell had been salted or otherwise treated, stating that «the ambulance was informed and the guard`s staff had come out.
They applied more materials to the sidewalk [area where the plaintiff fell]»[.] Contrary to the defendant`s contention, it is not sufficient to prove that ice would not form at certain temperatures, since previously formed ice may continue to exist and not have completely melted despite a brief increase in temperature. Thus, purely climatological records, although prima facie evidence of the weather conditions indicated therein. would not determine whether the ice that formed previously would continue to exist in all situations. Last year`s brutal winter, with almost daily snow and cold temperatures enveloping this city for months, taught us all in New York that despite a two-day pause on the «heat wave» on a weekend in February, when the temperature peaked at 54 degrees Fahrenheit for two consecutive days, Random blocks of ice and snow were still left on the road. that people had to maneuver and/or dig up their cars. In addition, the court notes that it is also clear that even if ice cubes do not form at temperatures above freezing, ice cubes can and do exist in hot weather under certain conditions – an experience that anyone who has enjoyed a refreshing ice drink on the beach in hot weather can attest. In the absence of an affidavit showing that, in the circumstances of this case, no ice previously formed could have existed during the relevant period, the applicant`s application for summary judgment must be dismissed, since the defendant only submits the climatological data on this issue. The respondent had not credibly demonstrated that he did not constructively notice the ice on the sidewalk in front of his property, on which the plaintiff allegedly slipped. It appears from the climatological records submitted by the defendant that the last measurable snowfall occurred several days before the accident and that, thereafter, the temperature exceeded freezing only for a short period of time, more than 24 hours before the accident.