Wednesday, February 25, 2009

Wednesday's Weird But True Legal Cases - Vol XLIII

Tonight's weird (but true) legal case analysis was inspired by a recent letter to the editor which I read in one of the local Jewish papers. The writer had written to the paper to express her displeasure with people not shoveling the snow on their sidewalks. The person then stated that people should shovel because: (1) it was not considerate or menchlich to leave the sidewalk messy; (2) the failure to remove the snow could result in a ticket from the municipality and (3) the property owner could be sued if someone fell on the snow and ice which had accumulated.

I can't argue with the first reason mentioned in the writer's letter above, but the second two have been the subject of numerous court cases. Tonight, I would like to discuss Roark v. Hunting, 24 N.Y.2d 470, 301 N.Y.S.2d 59 (1969) which dealt with a pedestrian who slipped an fell on ice which had accumulated on a public sidewalk under a hanging sign.

In Roark, the Plaintiff broke his ankle as a result of a slip and fall on an icy patch of sidewalk. In his complaint, the plaintiff alleged that the ice was a result of water which had flowed off the gutter and leaders of an overhead sign and pooled in broken sidewalk in front of the commercial building.

Following a trial, an Albany County jury awarded the plaintiff $19,000 in damages as against the owner of the commercial building. This award was then affirmed by the Appellate Division. On appeal to the Court of Appeals, the court first went into a discussion about the liability of property owners for snow and ice related accidents, stating:

The basic rules in snow and ice cases were reviewed by the Appellate Division in Cannon v. Pfleider:‘As a general rule it is only the municipality which may be held liable for the negligent failure to remove snow and ice from a public sidewalk or to have defects and dangerous conditions in the sidewalk repaired, unless a charter, statute or an ordinance clearly imposes liability upon the owner in favor of the injured pedestrian. The parties cite no provision of any charter, statute or ordinance imposing such liability on an abutting owner. An abutting owner is not liable even though he fails to comply with a provision of a charter, statute or ordinance charging him with removal of snow and ice, nor is he liable for the removal thereof in an incomplete manner. It is also a general rule that an abutting owner is liable if, by artificial means, snow and ice are transferred from the abutting premises to the sidewalk; or if, by such artificial means, water from the property is permitted to flow onto the public sidewalk where it freezes. The basic distinction between liability and non-liability rests upon whether the water, snow or ice was conducted from private premises to the public sidewalk by artificial or natural means. The abutting owner may be held liable in the former case-where the unsafe condition was created by his own wrongful act. He is not liable in the latter case-where he committed no wrongful act.

So what did the Court of Appeals do? They reversed the decision of the lower court, since:

In the instant case there is not one iota of evidence that water flowed from the building or any instrumentality owned or controlled by the defendants. The evidence clearly shows that the water dripped from the sign and that this sign was erected by the tenant before [the landlord] bought the building. There is no evidence that [the landlord] controlled or maintained the sign, although it was attached to a pipe and bracket which were part of the exterior of the building. [The landlord] did testify that he was responsible for the exterior of the building, but the evidence fails to indicate that the water was conducted to the sidewalk because the sign was either negligently erected or maintained by the tenant, or because of a defect in the pipe and bracket which were affixed to the building owned by the defendants herein. The only evidence bearing on maintenance of the sign is the lease under which [the tenant] occupied the premises.

Keep in mind, the law in each municipality is different. However, if the writer of that letter lived in my town, she would be incorrect about the liability for the property owner, since the only liability would be if the homeowner did a poor job shoveling the snow, not of he chose not to shovel at all.

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