August 18, 2020

May 2017: Snow & Ice Cases; Firm Announcements

Summary Judgment in Snow & Ice Cases

by Robert A. Fitch and Robert F. Fanning

The Orange County New York Supreme Court recently granted summary judgment on two separate matters dismissing the plaintiffs’ personal injury claims in favor of Rawle & Henderson LLP’s client, the snow removal contractor.

In the first case, plaintiff claimed he was injured when he slipped and fell on ice on the walkway in front of his unit in a condominium complex on December 19, 2013. Plaintiff brought this action against the snow removal contractor, the property management company, and the condominium association. In addition, the property manager and the condominium association cross claimed against the snow removal contractor for contribution.

We moved for summary judgment dismissing the complaint as well as the cross claims. To meet our burden and demonstrate prima facie entitlement to summary judgment, we argued that our client did not create the hazardous condition and did not have actual or constructive notice of its existence. Further, we argued that plaintiff’s claim must be dismissed because our client’s limited contractual obligations to provide snow removal services did not create a duty of care to plaintiff—a nonparty to the snow removal contract.

In rendering its decision, the Court applied the New York Court of Appeals applicable standard established in Espinal v. Melville Snow Contrs., N.Y.2d 136 (2002). In Espinal, the Court of Appeals affirmed the general rule that a snow removal contract does not render the contractor liable in tort for injuries sustained by third parties. However, the Court of Appeals also identified three exceptions to this general rule: 1) where the defendant launches a force or instrument of harm, 2) where the plaintiff detrimentally relies on the performance of the contracting party’s duties and 3) where the contracting party has entirely displaced the other party’s duty to maintain the premises safely.

In granting summary judgment in favor of our client, the defendant snow removal contractor, the Court found that plaintiff failed to allege facts in his complaint or his bill of particulars that would require us to affirmatively negate the Espinal exceptions. As a result, we demonstrated our prima facie entitlement to judgment as a matter of law by showing that plaintiff was not a party to the snow removal contract. In granting summary judgment as to the cross claims, the Court found no basis for any independent duty running from our client to the property manager or condominium association above the limited contractual obligations set forth in the snow removal contract. The Court found our client had satisfactorily performed these duties and that the ice that caused plaintiff’s fall was the result of snow melting from the roof of the condominium and refreezing on the ground due faulty drainage gutters.

In the second case, plaintiff alleged she slipped and fell on outdoor stairs located within her apartment complex on November 26, 2013. Plaintiff brought a lawsuit against the owner/operator of the apartment complex, as well as the snow removal contractor, alleging that the defendants were negligent in allowing a hazardous condition to exist on the premises and that they had actual and/or constructive notice of the same. The owner/operator cross claimed for indemnification, but did not submit any opposition to our motion for summary judgment.

We moved for summary judgment arguing that our client had a limited contractual obligation to perform snow clearing services. Further, plaintiff was not a party to the contract and thus the agreement did not give rise to a duty of care running from our client to plaintiff. Plaintiff countered by pointing to defendant voluntarily spreading sand on the date of the accident. In reply, we reasserted our position that defendant owed no duty to plaintiff. In addition, we asserted that our client’s spreading of sand on November 26 was voluntary and that contractual obligation for remediation of snow and ice did not start until December 1.

In granting summary judgment in favor of our client the snow removal contractor, the Court found we satisfied our burden and demonstrated a prima facie entitlement to judgment by proving that plaintiff was not a party to the snow removal contract. Moreover, the Court found that we negated the possible applicability of all three Espinal exceptions, though we were not required to do so due to plaintiff’s failure to allege facts in her complaint and bill of particulars that would trigger these exceptions. The burden shifted to plaintiff to present evidence sufficient to raise a triable issue of fact, but she failed to show Espinal’s applicability. The Court dismissed the owner/operator’s cross claim for indemnification on the theory that defendant did not completely displace the owner/operator’s duty of care to main the premises in a safe condition.

Robert A. Fitch, the resident partner in our New York City office, and Sylvia E. Lee, an associate, handled these cases. Robert F. Fanning, a law clerk, assisted in the preparation of this article.

Robert A. Fitch concentrates his practice on the defense of architects and engineers, construction, medical and oral surgery malpractice claims, and commercial motor vehicle litigation. He received his undergraduate degree from Syracuse University and his J.D. from Syracuse University College of Law. He is admitted to practice in New York since 1974, as well as in Federal Courts in Southern, Eastern and Northern Districts of New York and the Second Circuit Court of Appeals. Bob has tried over 100 cases to verdict and is a member of the Defense Research Institute, Federal Bar Council, PIAA and Trucking Industry Defense Association. Bob was named a New York Metro Super Lawyer in 2013, 2014, 2015, 2016 and 2017 by the publishers of Law & Politics. He has a peer review rating by Martindale-Hubbell of AV (the highest).

Bob can be reached directly at (212) 323-7070 •


David Ira Rosenbaum, a partner in our Philadelphia office, served as the co-chair and co-emcee at the Spring 2017 Conference of the Product Liability Advisory Council with Kelli J. Stallard, a partner with the Australian law firm of DibbsBarker in April in Las Vegas, Nevada. David is a member of the Product Liability Advisory Council (“PLAC”), a non-profit association of American and international product manufacturers who analyze and improve product liability law. The Council is composed of more than 90 leading product manufacturers and several hundred of the most elite product liability defense counsel both in the U.S. and abroad.

David has an active product liability defense practice. Throughout his career, he has defended product liability lawsuits for manufacturers of a wide variety of industrial and consumer products. David also regularly works with in-house attorneys, engineers and warranty personnel to formulate product recall notices and services bulletins and to conduct post-sale campaigns to minimize the risk of product-related injuries. In addition, David has extensive experience in commercial litigation and transactional matters. He graduated cum laude from Temple University School of Law and earned an A.B. in Political Economy from Vassar College. He is admitted to practice in Pennsylvania and New Jersey, as well as the U.S. District Courts for the Eastern and Middle Districts of Pennsylvania, the District of New Jersey, the Third Circuit Court of Appeals and the U.S. Supreme Court. He has been rated AV Preeminent by Martindale-Hubbell in 2017 for the 17th consecutive year.

David can be reached directly at (215) 575-4378 •


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