CWithout Notice: ‘Black Ice’ Cases Against Municipalities After San Marco v. Village of Mount Kisco

The snows of winter have melted away, but the injuries sustained in those icy conditions – and the ensuing litigation – will linger for years to come. Where plaintiffs sue municipalities over such injuries, though, their burden just got significantly lighter.
In San Marco v. Village of Mount Kisco, 2010 N.Y. Slip Op. 09197 (Dec. 16, 2010), the Court of Appeals held that a plaintiff who sues a municipality for a slip-and-fall on “black ice” or other icy conditions need not prove prior written notice if the municipality’s negligence created those conditions, no matter how long those conditions took to arise.
This is an exception to the general rule that to obviate the prior written notice requirement, a municipality’s negligence must have immediately caused the hazardous condition. Counsel for plaintiffs and municipalities should note the implications of San Marco, for similar cases and for the future of the prior written notice requirement.
Prior Written Notice: The Rule and its Exceptions
To minimize municipalities’ exposure to liability for every pothole or patch of ice, several statutes make prior written notice a prerequisite to liability. Among these is Village Law § 6-628, at issue in San Marco: No civil action shall be maintained against the village … for damages or injuries to person or property sustained solely in consequence of the existence of snow or ice upon any sidewalk, crosswalk, street, highway, bridge or culvert unless written notice … of the existence of the snow or ice, relating to the particular place, was actually given to the village clerk and there was a failure or neglect within a reasonable time after the receipt of such notice … to cause the snow or ice to be removed, or the place otherwise made reasonably safe.
CPLR § 9804 repeats this provision almost verbatim. Similar provisions appear in Town Law § 65-a, Second Class Cities Law § 244, New York City Administrative Code § 7-201 (the “Pothole Law”), and Highway Law § 139, as well as in the codes and charters of apparently every municipality in the State. The LIRR, however, appears to enjoy no such protection. See Stallone v. Long Island Rail Road, 69 A.D.3d 705 (2nd Dept. 2010).
The Court of Appeals has recognized two exceptions to the prior written notice requirement: where the locality created the defect or hazard through an affirmative act of negligence; and where a “special use” confers a particular benefit upon the locality. See Amabile v. City of Buffalo, 93 N.Y.2d 471, 474 (1999). San Marco turned on the former exception.
The Court of Appeals first recognized the affirmative-negligence exception in Muszynski v. City of Buffalo, 29 N.Y.2d 810 (1971). A wheelchair-bound girl fell along a sidewalk deteriorated by rock salt, which the city had been applying to make a safe path for pedestrians. The plaintiffs prevailed at trial, but the trial court set aside the verdict for lack of prior written notice, which the city charter required. The Fourth Department reinstated the verdict, finding that the city had caused the sidewalk to deteriorate over time. Muszynski v. City of Buffalo, 33 A.D.2d 468 (4th Dept. 1969). The Court of Appeals affirmed on the opinion below, even the lone dissenter conceding the “apparent exception to the notice requirement which exists in cases where the city causes and maintains the defective condition.” 29 N.Y.2d at 812 (Scileppi, J., dissenting).
Recently, the Court of Appeals had limited the affirmative-negligence exception to conduct that immediately results in a dangerous condition.
In Oboler v. City of New York, 8 N.Y.2d 888 (2007), the plaintiff had tripped on a depressed manhole cover on Madison Avenue, and sued under the Pothole Law. He could not prove prior written notice, however, and lost on summary judgment because he “presented no evidence of who last repaved this section of the roadway before the accident, when any such work may have been carried out, or the condition of the asphalt abutting the manhole cover immediately after any such resurfacing.” Id. at 890.
In Yarborough v. City of New York, 10 N.Y.2d 726 (2008), the plaintiff also sued under the Pothole Law. He also could not prove prior written notice, but offered expert testimony that the city negligently patched the pothole to create the alleged tripping hazards. The Court of Appeals affirmed dismissal, finding that the deterioration of the patch “developed over time with environmental wear and tear.” Id. at 728.
Oboler and Yarborough involved roadway defects, but courts had required immediacy in cases of negligent snow or ice removal as well. Just this past August, in Lynch v. Village of Monroe, 29 Misc.2d 683, 687 (2010), the court relied on a litany of opinions – including the Second Department’s opinion in San Marco – to dismiss the complaint for lack of prior written notice. But by reversing the Second Department in San Marco and finding that prior written notice was not required the Court of Appeals has departed from precedent.
San Marco: The Exception to the Exception
On Saturday, February 5, 2005 at 8:15 a.m., Dale San Marco slipped and fell on black ice in a parking lot owned by the Village of Mount Kisco. She and her husband sued for negligence and Mount Kisco moved to dismiss, under Village Law § 6-628 and an identical provision in the village’s own code, for lack of prior written notice. The San Marcos argued that prior written notice was not necessary since Mount Kisco created the hazardous condition. The Supreme Court found this a tryable issue and denied the motion. San Marco v. Village of Mount Kisco, 57 A.D.3d 874, 875 (2nd Dept. 2008).
The Second Department reversed. Applying Yarborough and Oboler, it held that the San Marcos would have to prove that Mount Kisco’s negligence immediately created the hazardous condition. Based on the undisputed evidence as to the weather, the court held: “Such facts do not rise to immediate creation, as it was the environmental factors of time and temperature fluctuations that caused the allegedly hazardous condition, not the allegedly negligent creation of snow piles.” 57 A.D.3d at 876-77.
The Court of Appeals reversed in a 4-3 decision, holding “that the immediacy requirement for ‘pothole cases’ should not be extended to cases involving hazards related to negligent snow removal.” 2010 N.Y. Slip Op. 09197 at 3. The Court reached this decision by shifting focus from the statutes themselves to “the general underlying purpose of prior written notice statutes,” which is “to exempt the villages from liability for holes and breaks of a kind which do not immediately come to the attention of the village officers unless they are given actual notice thereof.” 2010 N.Y. Slip Op. 09197 at 3 (quoting Doremus v. Incor-porated Vil. of Lynbrook, 18 N.Y.2d 362, 378 (1966)).
The Court then justified the affirmative-negligence exception and the immediacy requirement as having “merely reinforced the object of prior written notice statutes,” and held:
[W]e find these statutes were never intended to and ought not to exempt a municipality from liability as a matter of law where a municipality’s negligence in the maintenance of a municipally owned parking facility triggers the foreseeable development of black ice as soon as the temperature shifts. 2010 N.Y. Slip Op. 09197 at 3-4.
In dissent, Judge Smith conceded the affirmative-negligence exception, as well as the immediacy requirement. Replacing immediacy with foreseeability, however, “confuses the issue of written notice with the issue of negligence,” he added, and found “no logical distinction between pavement-defect cases like Oboler and Yarborough and snow-and-ice cases like this one,” noting that “The written notice requirements here apply by their terms to the “accumulation of snow and ice.” 2010 N.Y. Slip Op. 09197 at 8 (Smith, J., dissenting).
Going Forward
San Marco is a departure from precedent, but does confine itself “to cases involving hazards related to negligent snow removal.” 2010 N.Y. Slip Op. 09197 at 3. For now, the immediacy requirement still applies as before to other defects, including potholes.
For plaintiffs, this decision ensures that cases involving negligent snow removal will not be dismissed for lack of prior written notice. Of course, plaintiffs still must prove all the elements of a negligence case, and defendants can still assert comparative negligence or other available defenses.
The negligence issue might someday prove the more significant impact of this case. The San Marcos have alleged that Mount Kisco was negligent in piling snow alongside active parking spaces rather than removing snow from the lot entirely. If they prevail, then municipalities may face the dilemma of either paying to have snow carted away or risking increased exposure to injury litigation.
It is worth noting that San Marco involved the Village Law, which like the Pothole Law requires prior written notice of any hazardous condition. Contrast the Town Law, Second Class Cities Law, and Highway Law, which generally accept constructive notice but expressly require prior written notice where the injuries are “solely in consequence of the existence of snow or ice.”
It is therefore at least possible that the Court of Appeals would hold differently in cases under those other laws. This seems doubtful, though, given the Court’s emphasis on the general purpose of all such statutes as the Court defines it. Judge Smith’s concern about the confusion of immediacy and foreseeability may presage future developments. Is the weather really foreseeable, even enough to moot the requirement of immediacy? Are other precipitation-related hazards, like a rain-soaked boardwalk or a slush-covered lobby, less foreseeable than an iced-over parking lot? Is it any less foreseeable that a tree will one day grow to crack the adjacent sidewalk, or that a negligently patched pothole will reopen? Future litigants arguing from San Marco might lead the Court of Appeals one day to broaden its holding – or reconsider it altogether.
The affirmative-negligence exception is a settled doctrine. It is a judicial one, however, and therefore open to modification. San Marco significantly affects black ice cases against municipalities, but it might also lead to further expansion or contraction of liability. Counsel for all parties should tread cautiously; unlike black ice, the future of this doctrine is not foreseeable.
Christopher J. and John M. DelliCarpini are principals of the DelliCarpini Law Firm, representing plaintiffs in personal injury matters.