City May Be Liable For Black Ice On Sidewalk
January, 2012
Plaintiff slipped and fell on an icy sidewalk. Plaintiff sued the City of Albany, alleging that the City negligently piled snow along the sidewalk which melted, refroze and caused the black ice to form. Defendant moved for summary judgment on the ground that it did not receive the required written Notice. Plaintiff conceded that the Notice was not provided, but asserted that an exception to the Notice requirement applies -- when the City "creates the defect or hazard through an affirmative act of negligence." Urban v. City of Albany, 933 N.Y.S.2d 457, 458 (3d Dep't 2011)(citations omitted).
The Court discussed San Marco v. Village/Town of Mount Kisco, 16 N.Y.3d 111, 919 N.Y.S.2d 459, 944 N.E.2d 1098 (2010), a similar case decided by New York's Highest Court, the Court of Appeals. The Court noted that according to San Marco, "the municipality's practice ‘present[ed] the foreseeable, indeed known, risk of melting and refreezing,' and held that a ‘municipality should require no additional notice of the possible danger arising from [this] method of snow clearance apart from widely available local temperature data'." Id. at 458 (citation omitted).
Defendant's employee testified that not only did the City's practice involve pushing snow to the side, but he knew "this method of snow removal posed a risk of icy conditions." Although the City checked the sidewalks, the employee had no recollection of checking the sidewalk at issue, and no records indicating when it was last inspected or maintained. Plaintiff testified that he did not see any indication of ice-melting agent and it was difficult for recovery personnel to get to Plaintiff. Plaintiff's expert Affidavit stated that the accident "was caused by a hazardous icy condition created by defendant's snow removal practices." Id. at 459. Therefore, the Court held that Plaintiff presented triable issues of fact regarding whether Defendant exercised its duty of care and denied Defendant's Motion for Summary Judgment.
Learning Point:
When facts conflict and a reasonable version supports a Plaintiff's claims, a Motion for Summary Judgment will likely be denied. Also, a City has a duty to exercise reasonable care in the removal of snow and maintaining sidewalks in a reasonable safe condition. Failure of a Plaintiff to provide a municipality with the required written Notice may be excused if the municipality affirmatively created the injury causing condition.
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