A NOT-SO-PERFECT STORM?After B.B. filed a personal-injury lawsuit for damages she sustained on the morning of January 5, 2014, when she "slipped and fell" on some ice, the defendants filed for the litigation's dismissal claiming that they were shielded from liability based on the “storm-in-progress” rule. When the Nassau County Supreme Court denied their request, an appeal ensued.
In its decision the Appellate Division, Second Department, noted that the rule cited by defendants exempted them from liability during the course of inclement weather but that the exemption ended upon the passage of an “adequate period of time.” But here, the defendants' data and expert affidavit revealed there were only “trace amounts of precipitation,” (less than 1/10 of an inch), on the morning in question, with no snowfall the day prior.
Since it was unclear whether B.B. was injured at, or near, the time the precipitation occurred, and because the defendants failed to competently show that a “storm” had been underway at the time of B.B.'s fall, the AD2 thought the dismissal request had been appropriately denied.
Bet they’re storming mad ….
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DECISION