Dale R. San Marco v. Village/Town of Mount Kisco
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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
----------------------------------------------------------------No. 223
Dale R. San Marco et al.,
Appellants,
v.
Village/Town of Mount Kisco,
Respondent.
Michael Fuller Sirignano, for appellants.
Kathleen D. Foley, for respondent.
Defense Association of New York, amicus curiae.
LIPPMAN, Chief Judge:
This appeal presents the question of whether a prior
written notice statute acts as an absolute bar to recovery
against a municipality where a plaintiff slipped and fell on
black ice that formed on the municipality's property.
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Since the
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ice hazard at issue may have been created by the municipality's
negligent snow removal efforts, and, if so, the municipality may
have known of the hazard, we conclude that Supreme Court properly
denied defendant's motion for summary judgment.
Plaintiff Dale San Marco slipped and fell in a parking
lot owned by defendant Village/Town of Mount Kisco (the Village)
while on her way to work on Saturday, February 5, 2005 at
approximately 8:15 a.m.
At 4:45 a.m. on the previous morning,
the Village had treated the parking lot for ice conditions.
However, the Village did not employ a work crew on Saturdays and
Sundays to monitor the parking lot for dangerous conditions.
It
is undisputed that in the interim between the Village's last
inspection and salting of the lot early on Friday morning and San
Marco's fall on Saturday morning, the air temperature had risen
above freezing for approximately nineteen hours and then dropped.
As a result of her fall, San Marco suffered a
concussion, fractured her sacrum and herniated several cervical
discs.
Her injuries required a bone graft and surgical
installation of a titanium plate affixed to her spine and secured
by thirteen screws.
In May 2005, San Marco and her husband,
suing derivatively, commenced this action, seeking to recover
damages for her personal injuries.
San Marco alleged that she
fell on a patch of black ice that was caused by the melting and
refreezing of a pile of snow that the Village had plowed into a
row of meters adjacent to the parking spaces.
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San Marco further
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alleged both that the Village was negligent in plowing the snow
so near the parking spaces and negligent in failing to take
measures to remedy any dangerous ice conditions that developed.
In response, the Village asserted that Village Law §
6-628 and Village of Mount Kisco Code § 93-47 shielded it from
liability in the absence of prior written notice.
Pursuant to
Village Law § 6-628, a municipality cannot be liable as a matter
of law "unless written notice of the defective, unsafe, dangerous
or obstructed condition or of the existence of the snow or ice,
relating to the particular place, was actually given to the
village clerk" (Village Law § 6-628).
The Village consequently
established before the motion court that its clerk had not
received written notice regarding a defective condition in the
parking lot where San Marco fell.
Supreme Court, however, rejected the Village's argument
that the action should be dismissed because no one had given
written notice of a black ice condition.
The court reasoned that
the Village's snow removal procedure triggered an exception to
the written notice statute, finding a question of fact as to
whether the Village might have created the hazardous ice
condition.
Under Amabile v City of Buffalo (93 NY2d 471 [1999]),
a prior written notice statute does not protect a municipality
from liability if it can be proven that the "locality created the
defect or hazard through an affirmative act of negligence" (id.
at 474).
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No. 223
The Appellate Division reversed and granted the Village
summary judgment, concluding that this Court's holdings in
Yarborough v City of New York (10 NY3d 726 [2008]) and Oboler v
City of New York (8 NY3d 888 [2007]) controlled in cases of
melting and freezing snow.
Yarborough and Oboler, which
respectively dealt with hazards caused by a pothole and an uneven
manhole cover, held that the "affirmative creation" exception to
prior written notice statutes applies only where the action of
the municipality "immediately results in the existence of a
dangerous condition" (Yarborough, 10 NY3d at 728, quoting Oboler,
8 NY3d at 889).
Reasoning that this "immediacy test" extends to
snow melting cases, the Second Department found that the
Village's action of snow plowing did not amount to "immediate
creation" of the hazard that San Marco allegedly encountered (57
AD3d 874, 877 [2d Dept 2008]).
Rather, the Court found, "the
environmental factors of time and temperature fluctuations . . .
caused the allegedly hazardous condition" (id.).
The Appellate Division granted plaintiff leave to
appeal.
We reverse and deny summary judgment.
Reviewing the public policy rationale for prior written
notice statutes, as well as the factual distinctions between each
category of case, we conclude that the immediacy requirement for
"pothole cases" should not be extended to cases involving hazards
related to negligent snow removal.
In reaching the conclusion
that the Village should not be shielded from liability as a
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No. 223
matter of law in the present case, we uphold the general
underlying purpose of prior written notice statutes.
Although it
can be harsh for plaintiffs in many cases, it is sensible that
the municipality is exempt from liability for injuries on public
property unless the municipality knew of the problem.
Prior
written notice statutes were designed precisely to release
municipalities from the "vexing problem of municipal street and
sidewalk liability" (Barry v Niagara Frontier Tr. Sys., 35 NY2d
629, 633 [1974]) when they have no reasonable opportunity to
remedy the problem (see e.g. Jagoda v City of Dunkirk, 43 AD2d
795, 796 [4th Dept 1973] ["Notice provisions . . . are intended
to insure that a municipality be given reasonable opportunity to
cure defective conditions, the existence of which it could not be
expected to know absent some sort of positive apprisal"]).
We recognized the importance of actual notice in
Doremus v Incorporated Vil. of Lynbrook (18 NY2d 362 [1966]),
stating that prior written notice statutes represent "an effort
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"
(id. at 378).
In keeping with this emphasis, we developed in
Amabile the exception for the municipality's affirmative creation
of the hazardous condition that caused injury.
Then, in Yarborough and Oboler, we held that a
municipality could only be liable for its actions that
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These holdings
merely reinforced the object of prior written notice statutes to
protect municipalities from liability for a road construction or
repair, recognizing the difficulty in determining, after the
passage of time, whether the initial repair was negligent.
At
the same time, the affirmative creation exception addressed
situations where a hazard was foreseeable, insofar as the
municipality created it, by, for example, digging an unmarked
ditch in a road or neglecting to cover a street drain.
Considering the present facts in light of the
underlying purpose of prior written notice statutes, we 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.
Unlike a pothole,
which ordinarily is a product of wear and tear of traffic or
long-term melting and freezing on pavement that at one time was
safe and served an important purpose, a pile of plowed snow in a
parking lot is a cost-saving, pragmatic solution to the problem
of an accumulation of snow that presents the foreseeable, indeed
known, risk of melting and refreezing.
Moreover, a patch of pavement may gradually and
unpredictably deteriorate, making the point at which the efficacy
of the initial repair ceases unknown to the municipality.
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It is
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therefore understandable that the hazard may escape detection
until the municipality receives written notice of the problem.
However, in the case of black ice that forms from plowing snow in
a municipally owned parking facility, a municipality should
require no additional notice of the possible danger arising from
its method of snow clearance apart from widely available local
temperature data.
Indeed, there is evidence that in the case at
bar, the Village treated the same parking lot with salt and sand
the day before the accident, in order to limit the hazards of
black ice.
Thus, the determinative factor in this case should be
whether the Village's snow removal efforts created the ice
condition on which San Marco fell.
We have recognized the problem of negligent snow
removal going back to 1948 in Zahn v City of New York (299 NY 581
[1949]), where judgment for the injured plaintiff was affirmed
upon similar facts -- that a plaintiff fell on black ice that had
accumulated as a result of melting and refreezing of snow that
the property owner had shoveled on the sidewalk in front of her
home. Although this case involved a private defendant, since that
time there have been Appellate Division cases holding that a
municipal defendant may be liable for a negligent ice condition
without prior written notice.
For example, on almost identical
facts to the present case, in Smith v County of Orange (51 AD3d
1006 [2d Dept 2008]), the Second Department held that there was a
triable issue of fact "regarding whether the ice upon which the
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No. 223
plaintiff slipped was formed when snow piles created by the
County's snow removal efforts melted and froze" (id. at 1006; see
also Brownell v City of New York, 277 AD2d 31 [1st Dept 2000], lv
denied 96 NY2d 712 [2001]; Rector v City of New York, 259 AD2d
319 [1st Dept 1999]; Glick v City of New York, 139 AD2d 402 [1st
Dept 1988]).
We do not hereby create a new burden on municipalities
to remove all snow off-premises in order to avoid liability (see
e.g. Zweilich v Incorporated Vil. of Freeport, 208 AD2d 920 [2d
Dept 1994]).
Nor do we seek to render the municipality an
insurer of pedestrians.
However, at this juncture, plaintiff
raises triable issues of fact that compel denial of summary
judgment.
Primarily, a jury must decide whether San Marco fell
on ice created by the Village's snow clearance operation.
And
relatedly, there are factual issues concerning whether the
Village exercised its duty of care to maintain the parking lot in
a reasonably safe condition by plowing snow high alongside active
parking spaces, and in failing to salt or sand the lot on
weekends, despite the fact that it remained open seven days a
week.
Accordingly, the order of the Appellate Division should
be reversed, with costs, and defendant's motion for summary
judgment denied.
The certified question need not be answered
upon the ground that it is unnecessary.
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Dale R. San Marco, et al. v Village/Town of Mount Kisco
No. 223
SMITH, J.(dissenting):
The majority opinion seems to say that no written
notice requirement applies in this case because the Village
should have foreseen that its method of removing snow would
create a hazard.
This amounts to saying that no written notice
is required because the municipality was negligent.
But the
whole point of written notice legislation is to protect
municipalities from liability, even where they are negligent,
unless they have received written notice of the hazard in
question.
The majority decision frustrates this legislative aim,
contradicting both the text of the written notice requirements
and our recent holdings in Oboler v City of New York (8 NY3d 888
[2007]) and Yarborough v City of New York (10 NY3d 726 [2008]).
I therefore dissent.
Village Law § 6-628 says:
"No civil action shall be maintained against
the village for damages or injuries to person
or property sustained in consequence of any
street, highway, bridge, culvert, sidewalk or
crosswalk being defective, out of repair,
unsafe, dangerous or obstructed or 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 defective,
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unsafe, dangerous or obstructed condition or
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 repair or remove
the defect, danger or obstruction complained
of, or to cause the snow or ice to be
removed, or the place otherwise made
reasonably safe."
Village of Mount Kisco Code § 93-47 is very similar:
"No civil action shall be brought or
maintained against the Village of Mount Kisco
for damages or injuries to person or property
sustained in consequence of any street,
highway, bridge, culvert, sidewalk or
crosswalk being defective, out of repair,
unsafe, dangerous or obstructed or in
consequence of the existence or accumulation
of snow or ice upon any street, highway,
bridge, culvert, sidewalk or crosswalk,
unless written notice of the existence of
such condition, relating to the particular
place, had theretofore actually been given to
the Board of Trustees of the Village of Mount
Kisco and there had been a failure or neglect
on the part of said village to cause such
condition to be corrected or such snow or ice
to be removed or the place otherwise made
reasonably safe within a reasonable time
after the receipt of such notice."
Written notice requirements of this kind are common in
New York.
Ordinarily they do not, as these provisions do not,
include in their text an exception for hazards the municipalities
created.
We have nevertheless recognized such an exception --
not, as the majority implies, to nullify the requirement in every
case in which a municipality negligently fails to foresee the
consequence of its actions, but to take account of cases in which
a prior written notice requirement would be anomalous.
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Thus, if
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a city construction crew digs a hole in the street, it would seem
absurd to immunize the city from lawsuits by pedestrians who fall
in the hole on the ground that no one gave the city written
notice of the hole's existence (see Doremus v Vil. of Lynbrook,
18 NY2d 362, 366 [1966] [written notice requirements were
designed to exempt municipalities from roadway defects "which do
not immediately come to the attention of village officers"]).
Kiernan v Thompson (73 NY2d 840 [1988]) was a case of this type.
Where the City of Ithaca, in removing a tree stump, had left a
crack in the sidewalk, we held that "since the City created the
crack in the pavement, plaintiff was not required to provide it
with prior written notice of the unsafe condition" (id. at 842).
Our cases also recognize, however, that the rationale
of the exception does not apply where a condition that the
municipality creates is not immediately dangerous, but becomes so
with the passage of time.
In such cases the municipality may be
at fault for not foreseeing the danger, but that is irrelevant;
there is, by hypothesis, fault by the municipality in every case
to which a prior written notice requirement applies.
Where the
danger is not the immediate result of the municipality's
negligent act, it cannot be said with certainty -- as it can in
the case of the hole the city itself dug -- that the municipality
actually knew of the danger.
In such cases, therefore, the
municipality is entitled to prior written notice.
As the Appellate Division explained in Bielecki v City
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No. 223
of New York (14 AD3d 301, 301-302 [1st Dept 2005]):
"We understand the affirmative negligence
exception to the notice requirement to be
limited to work by the City that immediately
results in the existence of a dangerous
condition.
. . . .
"If we were to extend the affirmative
negligence exception to cases like this one,
where it is alleged that a dangerous
condition developed over time from an
allegedly negligent municipal repair, the
exception to the notice requirement would
swallow up the requirement itself, thereby
defeating the purpose of the Pothole Law."
We adopted the reasoning of Bielecki in two recent
cases, Oboler (8 NY3d at 889 [2007] [case dismissed where
plaintiff failed to show that a height differential between a
manhole cover and the adjoining asphalt existed immediately after
the City's resurfacing of the roadway]) and Yarborough (10 NY3d
at 728 [2008] [case dismissed where City was allegedly negligent
in repairing a pothole, causing deterioration "over time with
environmental wear and tear"]).
These cases effectively
overruled our affirmance several decades ago of the Appellate
Division's decision in Muszynski v City of Buffalo (33 AD2d 648
[4th Dept 1969], affd on opinion below 29 NY2d 810 [1971]).
Oboler and Yarborough essentially adopt the view of Judge
Scileppi, dissenting in Muszynski, that written notice is
required where "the dangerous condition was not created
immediately and consequently" upon a municipality's action (29
NY2d at 813).
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No. 223
The majority here distinguishes Oboler and Yarborough
on the ground that those cases involved defects in the pavement
itself, not ice that formed on the pavement.
The majority's
reasoning is that, while it is "understandable" that
deterioration of the pavement resulting from negligent street
repair "may escape detection" (majority op at 7), a negligently
created pile of snow "presents the foreseeable, indeed known,
risk of melting and refreezing" (id. at 6-7).
But this confuses
the issue of written notice with the issue of negligence.
If a
risk is neither foreseeable nor known, the municipality is not
liable for it at all -- the written notice statute is
unnecessary.
The premise of the plaintiff's case, in a case like
Oboler or Yarborough, is that the municipality should have
foreseen, but negligently failed to foresee, that its way of
repairing the streets would cause the pavement to deteriorate.
There is, in other words, no logical distinction between
pavement-defect cases like Oboler and Yarborough and snow-and-ice
cases like this one.
The written notice requirements here apply
by their terms to the "accumulation of snow and ice."
Of course it can be said in a case like this -- as it
could be said in Oboler, Yarborough, Bielecki and similar cases - that it is unfair to leave plaintiffs uncompensated for an
injury that a municipality negligently caused, but that is what
prior written notice requirements do.
Such requirements may be
harsh, but they are "a valid exercise of legislative authority"
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No. 223
(Amabile v City of Buffalo, 93 NY2d 471, 473 [1999]).
The State,
which has created municipalities and has, by abrogating the old
rule of sovereign immunity, permitted citizens to bring actions
against them, has chosen to limit those lawsuits to cases in
which a municipality has received written notice of the hazard
complained of.
Because the Village here received no such notice,
this case should be dismissed.
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Order reversed, with costs, defendant's motion for summary
judgment denied, and certified question not answered upon the
ground that it is unnecessary. Opinion by Chief Judge Lippman.
Judges Ciparick, Pigott and Jones concur. Judge Smith dissents
in an opinion in which Judges Graffeo and Read concur.
Decided December 16, 2010
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