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Clark v. Cumberland Farms, Inc.

United States District Court, N.D. New York

June 19, 2014

BRIAN CLARK, Plaintiff,


LAWRENCE E. KAHN, District Judge.


In this premises liability case, Plaintiff Brian Clark ("Plaintiff") alleges that he sustained serious and permanent injuries when he slipped and fell on "black ice" outside of Defendant Cumberland Farms, Inc.'s ("Defendant") store. Dkt. No 1-1 ("Complaint"). Presently before the Court is Defendant's Motion for summary judgment. Dkt. No. 19 ("Motion"). For the following reasons, the Motion is denied.


A. Facts

1. The Incident

Defendant owns and operates a convenience store in Schenectady, NY. See Dkt. No. 19-9 ("Statement of Material Facts") ¶ 2. In front of the store, there is a raised sidewalk that extends across the entire building. See Dkt. No. 19-3 ("Leduc Deposition") at 8. On the right corner of the sidewalk (facing the entrance), there is a handicap ramp "constructed of blacktop" that rises "from the parking lot surface up to the level of the sidewalk." Dkt. No. 21-1 ("Response Statement of Material Facts") ¶ 3. There is also an overhang from the roof that extends over the sidewalk "approximately three and a half to four feet." Id.

On December 13, 2009, at approximately 7:30 P.M., Plaintiff and his girlfriend walked onto Defendant's property. Dkt. No. 21 ("Plaintiff's Memorandum") at 2. Either Plaintiff or his girlfriend entered the store to purchase a few grocery items, while the other waited outside near the entrance. Id . When either Plaintiff or his girlfriend returned, Plaintiff "took three or four steps along the sidewalk and then stepped from the sidewalk onto the handicap ramp. As he did so, his foot went up into the air and he fell onto the ground." Id.

Plaintiff contacted Defendant the following day to notify them about his fall. Resp. SMF ¶ 12. Defendant's employee filled out an incident report, stating that "[d]uring the ice storm on sunday Dec 13, 2009 [c]ustomer states the next day that he slipped on ice in the parking lot around the corner of the building." Dkt. No. 19-7 ("Incident Report") at 1. Under the section titled "Have you taken appropriate measures to prevent this type of accident from happening again?" the Incident Report states "[s]alted area next day." Id. at 2. It also indicates that Rhiannon Kaarstad ("Kaarstad") and Jahnelle Roberts ("Roberts") were the only two employees working at the time of Plaintiff's fall. Id.

In Plaintiff's deposition testimony, he states that before he fell, he did not observe any areas of ice or snow on the handicap ramp, but "assumed it was wet with water." Resp. SMF ¶¶ 5-6. After the fall, Plaintiff observed "black ice"[1] on the handicap ramp where he slipped and fell. Id. at 6-7. Plaintiff did not touch the ice with his bare hand but only through his gloves. Id. at 9. Plaintiff states that he "does not know whether the wetness or black ice covered the entire ramp, " and that the "the wetness or black ice he saw did not have any appreciable thickness." Id. at 10.

2. Weather Analysis

Plaintiff hired a forensic meteorologist, Howard Altschule ("Altschule"), to investigate the weather conditions in the vicinity of Defendant's store on the day of Plaintiff's fall. Resp. SMF ¶ 23. Altschule testified that a "light snow" fell from approximately 12:30 p.m. until 2:30 p.m., and that the "snow mixed with or changed to sleet and/or rain" during that time period. Id . ¶ 32. The precipitation then changed to "a light rain or drizzle" from approximately 2:30 P.M. until 6:45 P.M. Id . ¶ 33. At 7:30 P.M., the approximate time of Plaintiff's fall, there was no appreciable precipitation. Id . ¶ 34.

Altschule testified that, at the time of Plaintiff's fall, the air temperature was approximately 35 to 36 degrees Fahrenheit, and that "black ice can form at temperatures above thirty-two degrees if the ground temperature is below thirty-two degrees." Resp. SMF ¶¶ 31, 34. However, Altschule's analysis only examined the air temperature, not the ground temperature, on the date at issue. Id . ¶ 37.

Altschule testified that the last significant snow accumulation before Plaintiff's fall occurred on December 9, 2009. Pl. Mem. at 13. Altschule also concluded that, due to changes in air temperature, melting and "refreezing processes... occurred on December 8th, 10th, [and] 11th, " and "new ice formed between 1:45 and 3:45 p.m. on December 12[th]."[2] Resp. SMF ¶¶ 26-27.

3. Defendant's Snow Removal Procedures

Carl Leduc ("Leduc"), Defendant's store manager, testified that an outside vendor handled snow removal of the parking lot and sidewalk, but only when a minimum of three inches of snow accumulated. Leduc Dep. at 10; Resp. SMF ¶¶ 17-18. Otherwise, it was Defendant's employees' responsibility to manage ice and snow removal. Resp. SMF ¶ 20. Defendant did not have an official snow removal protocol; according to Leduc, employees "were just watching all the time. If you're by the window, you're looking out the window, you think it needs it[, then] you go out and do it." Id . ¶ 21. Leduc was not sure if he or his employees shoveled or salted the sidewalk or handicap ramp on ...

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