"Black Ice" is defined as a thin layer of ice on pavement, which is usually clear and hard to see. During the day, the pavement may look like it is merely wet, not icy, thus hiding the danger. During the night, black ice is virtually impossible to see. Because of the difficulty in being seen, black ice can be particularly dangerous. But, if you slip and fall on black ice, can you successfully sue for damages? The answer is "Maybe", it all depends on the circumstances. A property owner must keep his property, including driveways, walkways, etc. free from dangerous conditions such as snow and ice. The owner has a reasonable amount of time after snow stops falling to remove snow or ice from his property. However, black ice is not always caused by precipitation. It is often caused by snow that is piled up along a driveway that melts and re-freezes, water that flows from a gutter and then re-freezes, drips from an eave and then freezes, or other similar circumstance. The general rule is that a property owner must have notice of the condition before the owner can be held liable for an injury that results from the condition. Where the condition is snow or ice from precipitation the owner is deemed to have notice of the precipitation. In regards to property that has been cleared of snow and ice, but then ice formed as a result of one of the above scenarios, an owner can be held liable under a number of different scenarios: 1) The owner has actual notice of the ice as a result of seeing it or being told of it. 2) The ice condition existed for such a long period of time that the owner should have become aware of it, even though he claims he was not. This is called constructive notice. 3) The owner created the condition. An owner can create a slippery ice condition where it: allows water to drain and refreeze; piles snow up in snowbanks which melt and refreeze; or shovels snow and leaves a layer of ice underneath. In December 2010 the New York State Court of Appeals held that a municipality could be held liable for creating a black ice condition in a parking lot. See San Marco v. Village/Town of Mt. Kisco (December 16, 2010). In that case the municipality plowed snow in a parking lot into a pile. The temperature subsequently rose above freezing for approximately 19 hours, allowing snow to melt off, before freezing temperatures returned, causing black ice to form in the parking lot. Mr. San Marco then slipped and fell on the ice. The court held that the development of the black ice was foreseeable. The court continued, stating:
"...in the case of black ice that forms from plowing snow in a municipality owned parking facility, a municipalty 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."The result would be the same where the property was privately owned. If you have any questions or comments, please contact us. If you have a ideas for future blog posts let me know. – Marc Miner, Esq. Zalman Schnurman & Miner is a New York law firm that concentrates in personal injury actions such as construction accidents, motor vehicle accidents, bicycle accidents, premises liability, trip and falls, slip and falls, snow and ice cases, medical malpractice, traumatic brain injuries, etc. Learn more at www.1800Lawline.com, or contact us at 1-800-LAWLINE, or 1-800-529-5463 New York City, Bronx, Brooklyn, Manhattan, Queens, Staten Island, Nassau County, Suffolk County, Westchester County, Rockland County. The information provided here is for informational purposes only and is not meant as legal advice or to cover all possible facts or factors. An attorney should be consulted to discuss specific facts and laws.