Rain ... Snow ... Ice ... Does Your Board Know About "The Four-Hour Rule"?
June 8, 2012 — Nigen and Yvonne Vosper lived at 555 W. 160th Street in Manhattan on December 24, 2008, when Nigen slipped and fell on ice as he was leaving the building at 7:55 a.m. Note the time, because it becomes important. The following month, he filed a lawsuit for personal injuries, alleging that the building had "created a dangerous and hazardous condition on [the] outside landing by removing a step that was there and replacing it with a downward sloping landing, without a handrail."
Vosper testified that he did not recalls seeing any snow, ice or rain on the landing the day before his accident, and neither he nor anyone in his household had complained about the landing before — other than Yvonne once telling the super, Patricio Valderrabano, that she didn't like the landing.
A weather expert testifying in the case said a "mixture of sleet and freezing rain developed between 3:10 a.m. and 3:20 a.m." on the morning of the accident. This became freezing rain by 4 a.m., and regular rain by 6 a.m. "The precipitation that fell prior to 6 a.m. produced an icy, thin layer or glaze of ice on the outside landing" where Vosper slipped and fell.
The duty to remedy hazardous
conditions does not commence
until a reasonable time
after a storm has ended.
The super, Valderrabano, testified that his duties to remove ice from the premises didn't begin until 8 a.m., and that he had arrived then on that day and saw the icy conditions. He generally threw salt in such circumstances, everyone agreed — but the slip-and-fall happened five minutes before he arrived.
Judge Eileen A. Rakower of New York State Supreme Court, quoting past decisions in the case she decided this past May 14, said a building owner "has a duty to maintain its property in a reasonably safe condition under the extant circumstances," and that in order to be held liable for an injury, it must be established that the owner "either created or had actual constructive notice of the hazardous condition [that] precipitated an injury." Someone suing your building must show that a defect "existed for a sufficient length of time" before the accident.
What about something transient, like an ice storm? "[I]t is settled that the duty of a landowner to take reasonable measures to remedy a dangerous conditions caused by a storm is suspended while the storm is in progress," Rakower wrote, "and does not commence until a reasonable time after the storm has ended." A lot of board members and building staffs may not have been aware of that.
Ice, Ice, Baby
Moreover, she said, the law defines "a reasonable time" in such cases as "that period within which the [landowner] should have taken notice of the icy condition and, in the exercise of reasonable car, remedied it by clearing the sidewalk or otherwise eliminating the danger. … It is not until 'the storm has passed and precipitation has tailed off to such an extent that there is no longer any appreciable accumulation' that an owner … may be held liable for injuries caused by accumulated ice or snow."
Now here's the kicker: The New York Administrative Code, Section 16-123, "Removal of Snow, Ice and Dirt From Sidewalks; Property Owners' Duties," grants building owners "four hours to remedy snow or ice conditions," she wrote, and that in this case "the building superintendent's snow-removal responsibilities did not commence until 8 a.m." She also noted that the Vospers' claim "that actual notice was provided … from the weather forecast is speculation."
The court ruled for the building, and even though in this case it's a rental property, the law applies equally to any owner / landlord such as condo associations or co-op boards. And while, naturally, you want your staff to clean hazardous conditions as quickly as possible and can instruct them to do so, it's nice to know there's a city rule that gives you a cushion of protection.
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