Opinion
February 18, 1971
Appeal from the Erie Trial Term.
Present — Goldman, P.J., Del Vecchio, Witmer, Moule and Henry, JJ.
Judgment unanimously reversed on the law and facts, without costs, and complaint dismissed. Memorandum: Plaintiff claimed she slipped on a patch of ice covered by snow on a sidewalk on defendant's hospital grounds. No claim was made that defendant had actual knowledge of the existence of the ice, and plaintiff stated that she had no idea how long it had been there. Plaintiff relied upon statistics of a weather station to establish that the condition had existed for a sufficient period of time to charge defendant with constructive notice. The accident occurred on March 12, 1968 at approximately 1:45 P.M. The weather report established that on March 9, three days before the accident, there were 0.12 inches of rain, most of which had occurred by 10:00 A.M. The temperature ranged from a high of 43 degrees to a low of 36, with the average being 40. On March 10, there was a total of 0.01 inches of rain. This occurred at 4:00 A.M., and until 10:00 A.M. there were traces of precipitation, but no measurable amount. Subsequent to 10:00 A.M. there was no precipitation. The temperature ranged from a high of 39 to a low of 33, with an average of 36. On March 11, the day before the accident, there was no precipitation, and it was a clear, sunny day. The temperature ranged from a high of 34 to a low of 25, with an average of 30. The temperature was above freezing for a period of several hours in the middle of the afternoon. On March 12, the day of the accident, there was a total of 5.2 inches of snow, or 0.39 inches of precipitation. The precipitation began at about 9:00 A.M. and there were 0.03 inches of precipitation by 1:00 P.M. and an additional 0.02 inches between 1:00 P.M. and 2:00 P.M. The temperature ranged from a high of 27 to a low of 24, with an average of 26. In order to return a verdict for plaintiff, the jury had to infer that conditions were the same at the hospital as at the weather station although we take judicial notice that they are 5.23 miles apart in a straight line. Also, the jury had to infer that the precipitation that fell on March 9 or 10 remained on the ground until March 11 when it froze. It further had to infer that the ice remained on the sidewalk throughout March 11 even though the temperature got up to 34 and there was sunshine for 7.1 hours. Finally, it had to infer either that no new ice formed during the snowstorm of March 12 or, if it did, that plaintiff fell on old ice and not the new ice. This involves guesswork and speculation. (Cf. Bonfrisco v. Marlib Corp., 30 A.D.2d 655, affd. 24 N.Y.2d 817; Cruz v. City of New York, 23 A.D.2d 491, affd. 17 N.Y.2d 717.) Defendants' maintenance man testified that he observed the sidewalk in question the morning of the accident, and that it was free of ice. If plaintiff fell on ice formed during this snow fall which was in progress at the time of the accident, she could not recover. ( Falina v. Hollis Diner, 281 App. Div. 711, affd. 306 N.Y. 586; Valentine v. State of New York, 197 Misc. 972, affd. 277 App. Div. 1069.) There is no rational basis on which the jury could have reached its verdict, and the complaint should be dismissed. ( Blum v. Fresh Grown Preserve Corp., 292 N.Y. 241.)