Opinion
K1-2015-133
05-16-2016
Kathryn Dingledy, Plaintiff v. Village of Brocton and Paul A. Bigelow, Defendants
BROWN CHIARI LLP Attorneys for Plaintiff Theresa Walsh, Esq., of Counsel CHELUS HERDZIK SPEYER & MONTE PC Attorneys for Defendant Village of Brocton Kevin Loftus, Jr., Esq., of Counsel WALSH, ROBERTS & GRACE Attorneys for Defendant Paul A. Bigelow Keith N. Bond, Esq., of Counsel
BROWN CHIARI LLP Attorneys for Plaintiff Theresa Walsh, Esq., of Counsel CHELUS HERDZIK SPEYER & MONTE PC Attorneys for Defendant Village of Brocton Kevin Loftus, Jr., Esq., of Counsel WALSH, ROBERTS & GRACE Attorneys for Defendant Paul A. Bigelow Keith N. Bond, Esq., of Counsel Frank A. Sedita III, J.
Plaintiff commenced this action against defendants — a municipality and a business owner — seeking to recover damages for personal injuries sustained when she slipped and fell on a public sidewalk. Both defendants move for summary judgment and seek to dismiss the complaint. The undisputed facts are as follows.
Plaintiff arrived at her place of employment at approximately nine o'clock on the morning of December 10, 2013. It began to snow sometime between 9:00am and 11:00am, when she left the office to run some errands. It was snowing moderately and approximately one-and-a-half inches had accumulated when, at 11:30am, plaintiff slipped and fell while walking down a village sidewalk in front of defendant Bigelow's antique store. Plaintiff did not see any ice, according to sworn testimony given at two separate depositions. Plaintiff claims, instead, that she felt ice underneath the snow, according to a recently filed affidavit.
Plaintiff walked back to her office on foot with the assistance a Good Samaritan and drove herself home but was taken to the hospital several hours later, where it was discovered that she had suffered injuries, including a fractured kneecap. Plaintiff filed a Notice of Claim against the Village of Brocton on February 27, 2013, followed by a Summons and Complaint, against both defendants, on January 28, 2015.
A village highway department employee routinely plows the sidewalk-in-question when it snows and has been doing so for approximately forty years. Defendant Bigelow routinely shovels the sidewalk when it snows and applies salt or ice when it is needed. Neither defendant knew of the accident before they were sued and neither recalls the weather conditions or the condition of the sidewalk on the day-in-question.
"Local Law 3-2004, Sidewalk Law, Village of Brocton" (sidewalk ordinance) was in effect at the time of the accident. Relevantly, the sidewalk ordinance mandates that a person whose property adjoins or abuts a sidewalk in the Village of Brocton, " shall be charged with the responsibility to keep such sidewalk in a good state of repair and free from defects and debris." There is, however, no requirement that a property owner shovel snow or melt ice that might accumulate on the sidewalk. The sidewalk ordinance also mandates: "On any claim presented for bodily injury or property damage on the sidewalk, the adjoining or abutting property owner shall be held liable in tort for such damages to another."
"Local Law No. 2, Written Notice of Civil Actions Against the Village" (notice ordinance) was also in effect at the time of the accident. Relevantly, §8.1 mandates that an action for, " damages or injuries to person or property sustained solely in consequence of the existence of snow or ice upon any highway, bridge or culvert ," shall not be maintained unless the village receives prior written notice specifying the location of the snow or ice and the village failed to remove the ice or snow within a reasonable amount of time thereafter. The Village of Brocton did not receive prior written notice of the snow and ice that had allegedly accumulated on the sidewalk adjacent to defendant Bigelow's property.
Defendant Village of Brocton filed their motion on January 11, 2016 and maintains, inter alia, that the lack of prior written notice, the express imposition of tort liability upon defendant Bigelow as an abutting property owner and the storm-in-progress doctrine, all support a finding of summary judgment in its favor.
Defendant Bigelow filed his motion on February 25, 2016 and similarly maintains that he is entitled to summary judgment under the storm-in-progress doctrine; however, he takes the view opposite to that of his co-defendant regarding the applicability and effect of the two ordinances. Defendant Bigelow contends that the sidewalk ordinance does not make him responsible for the removal of snow and ice on public sidewalks, thus absolving him of liability. Defendant Bigelow also contends that sidewalks are not encompassed in the notice ordinance, thus making the village exclusively liable for the plaintiff's injuries.
The plaintiff filed her responding papers on April 20, 2016 and principally contends that neither ordinance shields either defendant from liability and that both defendants fail to meet the high burden of proof required from the party moving for summary judgment. At the April 25, 2016 oral argument, plaintiff's counsel conceded that there was a storm and that it was snowing at the time of the accident, but again emphasized that defendants fail to meet their burden of proof, including their duty to (according to counsel) disprove constructive notice.
Summary judgment permits a party to show, by affidavit or other evidence, that there is no material issue of fact to be tried, and that judgment may be directed as a matter of law (Brill v. City of New York, 2 NY3d 648, 650-651). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any genuine, material issues of fact. Once this showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action ( Alvarez v. Prospect Hospital, 68 NY2d 320, 324-325).
Turning to the issue of whether defendant Bigelow is, as a matter of law, liable for the plaintiff's injuries, it is well-settled that an owner of land abutting a public sidewalk does not owe the public a duty to keep the sidewalk in a safe condition, solely by reason of being an abutting owner. Unless a statute or ordinance clearly imposes liability upon an abutting landowner, only a municipality may be held liable for the negligent failure to remove ice and snow from a sidewalk (Smalley v. Bemben, 12 NY3d 751; Owens v. Miesch, 118 AD3d 1259; Panzica v. Fantuzzi, 109 AD3d 1118, emphasis in original). Such an ordinance must expressly impose a duty on the landowner to maintain the sidewalk and state that a breach of that duty will result in liability (Smalley v. Bemben, 50 AD3d 1470). The test, in other words, is two-pronged: the language of the ordinance must not only charge the owner with a duty to maintain the public sidewalk, but it must also specifically state that a breach of that duty will result in liability (Gohn v. Hoffman, 248 AD2d 435; Shivone v. Palumbo, 177 AD2d 1045).
While the village sidewalk ordinance works to broadly shift liability to private citizens for torts on public property, it limits the scope of an abutting landowner's duty of care. It strains any reasonable sense of analogy to equate "dirt and debris" with "snow and ice." If, after four decades of removing snow from its sidewalks, the Village of Brocton wishes to shift that responsibility to abutting landowners, it may certainly do so. As of December 10, 2013, however, it had not.
Regarding whether defendant Village of Brocton is, as a matter of law, liable for the plaintiff's injuries, it is clear the municipality did not receive written notice of the ice (assuming it was ever there) at any time before the accident. Consequently, the parties opposing summary judgment don't contend there is an issue of fact as to whether written notice was provided to the village in a timely fashion. Instead, they argue that the omission of the word "sidewalk" from the notice ordinance eliminates any requirement of prior written notice. It has been consistently held, however, that in this and analogous contexts, the term "highway" (which appears in the notice ordinance) includes "sidewalks" (Scarsone v. Village of Celeron, 236 AD2d 870).
Defendant Bigelow has met his initial burden by establishing as a matter of law that he is not liable for dangerous condition that allegedly existed on a public sidewalk and no opposing party has raised a triable issue of fact sufficient to defeat summary judgment upon this ground. Defendant Village of Brocton has met its initial burden by establishing as a matter of law that it did not receive prior written notice of the allegedly dangerous condition and no opposing party has raised a triable issue of fact sufficient to defeat summary judgment upon this ground. As no other genuine, material issues of fact remain regarding the applicability and effect of these ordinances, summary judgment must be granted to both defendants (see, Guadagno v. City of Niagara Falls, 38 AD3d 1310).
Regardless of the applicability and effect of the ordinances, defendants are entitled to summary judgment on another ground: the storm-in-progress doctrine.
Defendants have the burden to establish, prima facie, that they neither created the snow and ice condition nor had actual or constructive notice of the condition. Defendants have met their initial burden by submitting evidence (e.g. plaintiff's deposition testimony) that a storm was in progress at the time of the accident, and thus, they had no duty to remove the snow and ice until a reasonable time had elapsed after the cessation of the storm. It should be noted that the storm-in-progress doctrine applies in situations where there is some type of less severe or inclement weather and is not limited to situations where blizzard conditions exist ( Glover v. Botsford, 109 AD3d 1182, 1184).
Contrary to what is urged by plaintiff's counsel, the burden shifts to plaintiff to raise a triable issue of fact as to whether the accident was caused by a preexisting condition (i.e. ice that had formed before the storm) and that defendant(s) had actual or constructive notice of the preexisting condition (see, Quill v. Churchville-Chili Central School District, 114 AD3d 1211; Meyers v. Big Six Towers, 85 AD3d 877). Regarding the former, plaintiff relies upon reports from nearby weather stations (without an affidavit of a meteorologist) in support of a speculative theory that ice must have formed before the storm because of temperature fluctuations. Regarding the latter, it is clear neither defendant received actual notice of the dangerous condition; as to constructive notice, it is equally clear that the ice was visible to no one, including the plaintiff herself. Accordingly, plaintiff fails to carry her burden of proof and summary judgment must be granted in defendants' favor (see, Mann v. Wegman's Food Markets, 115 AD3d 1249; Martin v. Wagner, 30 AD3d 733; Mullaney v. Royalty Properties, LLC, 81 AD3d 1312).
Based upon the foregoing, defendants' motions for summary judgment are granted and the complaint is dismissed.
The foregoing shall constitute the order of this court. Dated: May 16, 2016 HON. FRANK A. SEDITA, III