Opinion
570018/02, 03-153.
Decided May 13, 2005.
Defendant appeals from an order of the Civil Court of the City of New York, Bronx County, entered on or about November 9, 2001 (Francis M. Alessandro, J.) which denied his motion to set aside a jury verdict in plaintiffs' favor and for judgment as a matter of law.
Order entered on or about November 9, 2001 (Francis M. Alessandro, J.) reversed, with $10 costs, motion granted, and complaint dismissed. The Clerk is directed to enter judgment accordingly.
PRESENT: HON. LUCINDO SUAREZ, P.J., HON. WILLIAM J. DAVIS, HON. MARTIN SCHOENFELD, Justices.
During the course of a severe snowstorm that had already produced eight inches of snow, with sustained winds ranging from 18 to 27 miles per hour and gusts of up to 45 miles per hour, plaintiff George DiBartolo was struck by snow and ice which allegedly fell from the top of the defendant's five-story, mansard roof building. The plaintiffs' trial theory, as articulated by their expert witness, a former construction site project manager, was that the falling snow and ice was caused by the absence of two or three circular snow guards from the building's rooftop and the "somewhat bent" condition of an unspecified number of other snow guards. Based upon his examination of photographs and a visual inspection of the building's roof several months after the accident, plaintiffs' expert opined that the falling ice chunks could only have emanated from that portion of the building's roof from which the snow guards were missing and stated as a scientific principle that the substantial gusting winds shown to have been prevailing at the time of the accident would not have "change[d] the direction" of the falling snow. Notably, the testimony of plaintiffs' expert included a concession that the purpose of the type of snow guards here involved, which measured at most three or four inches in height, was "not to completely hold back the snow," but to "separate" the snow and allow it to "break apart in small sections" in rising temperatures and thawing conditions — conditions not shown to have been present at the time of the accident.
Defendant's expert, a structural engineer, explained that snow guards are "used to prevent large sheets of ice from falling and that ice is usually formed by the melting of the snow and refreezing against the roof surface. . . . The snow is expected to be wind blown off or it melts slowly off of the roof, so [snow guards are] not meant to stop it. They only stick up about two inches."
"In the absence of all but opinion evidence in support of the theory that [a few missing and bent snowguards] had proximately caused [the accident], this record was insufficient to support a verdict in plaintiffs' favor. An action based on circumstantial evidence must link a defendant's acts to the cause of injury by a reasonable and logical flow of inferences . . . [W]e find that plaintiffs' theory of recovery rested entirely upon the speculation of their expert witness, and thus was insufficient to support this verdict. Having failed to prove a prima facie case by other than pure speculation, plaintiffs provided no basis for a verdict in their favor against [this] defendant, and the case should have been dismissed without going to the jury" ( Broder v. MacNeil, 232 AD2d 163, 166 [internal citations omitted]). Although plaintiffs were not required to "positively exclude every other possible cause" of the accident but defendant's negligence ( Schneider v. Kings Highway Hosp. Ctr., 67 NY2d 743, 744), they were required to present proof rendering those other causes sufficiently "remote" or "technical" ( id.), a requirement clearly not met here. On this record, and particularly considering the magnitude of the snow and wind storm in progress at the time of the accident, any finding that the minimal snow guard defect alleged was a substantial causative factor in the occurrence of the accident necessarily rested on pure speculation.
An independent basis to set aside the verdict is found in plaintiffs' failure to present sufficient evidence to charge the defendant landowner with notice of a dangerous condition. Conspicuously absent from plaintiffs' trial presentation was any claim or showing that snow or ice had fallen from this roof on any prior occasion ( cf. Klepper v. Seymour House Corp., 246 NY 85) or that the icy snow that struck plaintiff was the residue of any prior, completed snowstorm ( cf. Taylor v. Bankers Tr. Co., 80 AD2d 483). In this posture, the evidence, even when viewed most favorably to plaintiffs, cannot support a finding that defendant knew or should have known of the existence of any reasonably foreseeable hazard on the basis of so slender a showing as the absence of two or three of the roof's many "staggered" snow guards or the vaguely described "somewhat bent" condition of others.
DISSENTING MEMORANDUM
I respectfully dissent. The issue on this appeal is whether plaintiffs' evidence was sufficient to raise an issue of fact as to whether defendant breached his duty to take reasonable precautions to protect passersby from being struck by snow and ice discharged from the roof of defendant's building and whether the jury's determination that defendant was negligent was against the weight of the evidence. I find that plaintiffs' evidence was sufficient to raise an issue of fact and that the jury's determination that defendant was negligent was not against the weight of the evidence. Accordingly, the judgment should be affirmed, with costs to plaintiffs.
Plaintiffs' evidence established that George DiBartolo ("plaintiff"), was struck by icy snow, measuring approximately 18 inches across and three inches thick, which fell from the mansard roof of defendant's five-story building during a substantial snowstorm on February 4, 1995. At trial, the sole testifying eyewitness to the accident (Demino), stated that immediately after the first chunk of icy snow struck plaintiff, Demino looked up and saw two more chunks of similar shape and dimension "com[ing] from the roof" of defendant's building as "hit [plaintiff], boom, boom." Plaintiff attributed the falling snow and ice to the largely undisputed facts that several metal, ring-shaped "avalanche" or snow guards previously installed on the building's roof directly above the accident site were missing and that other snow guards were "bent or twisted." The testimony of the parties' respective expert witnesses was in accord that it is industry practice to install snow guards on mansard roofs of the type here involved and that the purpose of such snow guards is to reduce the size of snow and ice clumps that may accumulate on the roof, and, as defendant's experts acknowledged, "to prevent large pieces of ice from falling into the street and hitting pedestrians." The parties' experts disagreed, however, as to whether snow guards could effectively accomplish those safety goals in the weather conditions prevailing at the time of the accident, where meteorological records presented at trial indicate that approximately eight inches of snow had fallen at the time plaintiff was injured (approximately 1:00 p.m.) and that there were wind gusts that day of up to 45 miles per hour.
A mansard roof is "a roof having two slopes on all sides with the lower slope steeper than the upper one." (Webster's Third New Intl. Dictionary 1377 [Unabr. 1976]).
The trial court properly denied defendant's motion for a directed verdict on the issue of negligence. The duty of landowners to so construct and maintain their roofs so that rain and snow do not cause injury is longstanding. See Davis v. The Niagara Falls Tower Company, 171 N.Y. 336, 338-339, 64 N.E. 4, 4-5 (1902). On this record, it cannot be said that plaintiffs' evidence was insufficient to raise an issue of fact for the jury as to whether defendant breached his duty to take reasonable precautions to protect passersby from being struck by the icy snow which had accumulated on the roof and was blown off the roof by the wind. See Klepper v. Seymour House Corporation of Ogdensburg, Inc., 246 N.Y. 85, 91, 92, 158 N.E. 29, 31 (1927). Snowstorms of eight or more inches are hardly unusual in New York City. See Garricks v. City of New York, 1 NY3d 22, 801 NE2d 372, 769 NYS2d 152 (2003); Ralat v. New York City Housing Authority, 265 AD2d 185, 693 NYS2d 561 (1st Dep't 1999); Valentine v. City of New York, 86 AD2d 381, 449 NYS2d 991 (1st Dep't 1982). Nor was the jury finding that the defendant was negligent against the weight of the evidence, since the evidence on this issue did not so preponderate in favor of defendant that the verdict could not be reached on any fair interpretation of the evidence. See Lolik v. Big V Supermarkets, Inc., 86 NY2d 744, 746, 655 NE2d 163, 164, 631 NYS2d 122, 123 (1995). In reaching its verdict, the jury was entitled to credit and rely upon the testimony of plaintiff and an eyewitness to the incident, physical evidence in the form of photographs depicting the configuration and appearance of the snow guards, and the testimony of plaintiffs' expert who opined that the missing and defective snow guards did not comply with the industry standard and that the defective condition was a substantial cause of the "massive clump[s]" of snow and ice that fell from the building's sloped roof. The majority's reliance and paraphrasing of Broder v. MacNeil, 232 AD2d 163, 166, 647 NYS2d 743, 745 (1st Dep't 1996) is clearly misplaced, and ignores the direct evidence presented by plaintiffs. Broder was a case where the plaintiff's theory that an external fireball had proximately caused an explosion of a boat was found by the Appellate Division to be unsupported in the record, and there, unlike here, the direct evidence was directly contrary to plaintiff's theory.
The efficacy of snow guards as safety devices to restrain accumulated snow and ice on building rooftops has long been recognized. See Hollenbeck v. St. Mark's Lutheran Church, 154 A.D. 328, 331, 138 N.Y.S. 1063, 1065 (1912). The expert testimony adduced by plaintiffs as to how the missing snow guards contributed to the occurrence of the accident was neither speculative nor inherently implausible. See Gayle v. City of New York, 92 NY2d 936, 703 NE2d 758, 759, 680 NYS2d 900, 901 (1998). Based upon the totality of the evidence, and particularly considering the contour and size of the icy chunks of snow that fell from the building's sloped roof, the jury reasonably could reject defendant's theory that the accident resulted solely from unavoidable wind blown snow, and instead determine that plaintiff's injuries were caused or exacerbated by the defendant's negligent maintenance of the previously installed snow guards. Especially where the resolution of a negligence action "turns on evaluation of the conflicting testimony of expert witnesses," a court must proceed with considerable caution before setting aside a jury verdict as against the weight of the evidence. McDermott v. Coffee Beanery, Ltd., 9 AD3d 195, 777 NYS2d 103, 112 (1st Dep't 2004) and "may not employ its discretion simply because it disagrees with a verdict, as this would 'unnecessarily interfere with the fact-finding function of the jury to a degree that amounts to a usurpation of the jury's duty'(citations omitted)." It was not necessary for plaintiff's expert to determine the exact location on defendant's building from where the snow and ice fell. The testimony of the eyewitness and the experts established to the satisfaction of the trier of facts that it was more likely than not that the snow and ice which injured plaintiff fell from the part of the roof where the snow guards were not properly maintained. Contrary to the majority, I find that "[p]laintiff's burden of proof on this issue [wa]s satisfied [since] the possibility of another explanation for the event is sufficiently remote or technical 'to enable the jury to reach its verdict based not upon speculation, but upon logical inferences to be drawn from the evidence.' (Citations omitted)." Merino v. Left Nine, Inc., 258 AD2d 896, 897, 685 NYS2d 363, 364 (4th Dep't 1999).
While I do not share the majority's stated view that the isolated and unamplified reference to temperature changes made by plaintiffs' expert when describing the purpose of snow guards can be read as a concession that snow guards are only effective in preventing snow and ice from falling in thawing conditions, I would note that there was no direct evidence elicited at trial that would preclude the jury from inferring that at the time of this midday accident some of the snow and ice that had accumulated on the building's roof was melting in the above-freezing temperatures reflected in the climatological records introduced into evidence by defendant himself.
The evidence also supports a finding that defendant negligently failed to maintain the snow guards, where defendant had constructive, if not actual, notice of the defective condition. Based upon, among other factors, defendant's ready acknowledgment that he personally inspected the roof on a regular basis prior to the accident and the unrefuted testimony of plaintiffs' expert that the particular snow guard defects revealed in his inspection necessarily developed "over a long period of time," the jury reasonably could find that the condition was in existence for a sufficient length of time that knowledge of the condition should have been acquired by defendant in the exercise of reasonable care. See Taylor v. New York City Transit Authority, 48 NY2d 903, 904, 400 NE2d 1340, 1341, 424 NYS2d 888, 889 (1979).
Nor does the "storm in progress" doctrine serve to shield defendant from liability otherwise established by the trial evidence. The rule, designed to relieve a landowner of "any obligation to shovel [or otherwise remove] snow while continuing precipitation or high winds are simply re-covering the walkways [or rooftops] as fast as they are cleaned" Powell v. MCG Hillside Assocs., L.P., 290 AD2d 345, 737 NYS2d 27, 28 (1st Dep't 2002), should find no application in a situation, where, as here, a known or readily discoverable premises defect, apart from the accumulation of snow and ice is shown to be a substantial factor in causing a plaintiff's injury. See Baehre v. Sagamore Resort Hotel, Inc., 4 AD3d 810, 811, 771 NYS2d 434, (4th Dep't 2004); Hoag v. Williamsburgh Sav. Bank, 75 A.D. 306, 78 N.Y.S. 141, 142 (2nd Dep't 1902).
Since I find that plaintiff presented sufficient evidence to raise triable questions of fact regarding defendant's negligence in the maintenance of his building ( see generally Taieb v. Hilton Hotels Corp., 131 AD2d 257, 520 NYS2d 776 (1st Dep't 1987), lv dismissed 72 NY2d 1040, 531 NE2d 656, 534 NYS2d 936 (1988), and that the jury rationally and reasonably resolved those fact questions in plaintiffs' favor, the order should be affirmed.
LUCINDO SUAREZ, P.J.