Hi, everyone. Thank you so much for joining us today for this discussion on Anatomy of a Slip and Fall Case From Plaintiff and Defense Perspectives. My name is Michele Newsome. I'm a partner at Milber Makris Plousadis and Seiden, where I've practiced insurance defense for the last eight and a half years, focusing my practice on premises, liability, labor law and automobile accidents. Good morning, everyone. My name is David Yaron. I am the managing member of Yaron Injury Law located in Long Island, New York, with an office in Nassau County. I'm very excited today to give the plaintiff's perspective on what we're going to be talking about today. Excited to go through these slides. I've been litigating these cases on behalf of plaintiffs for over a decade, and I'm very happy to share my knowledge today. Thank you so much. Hi, everyone. Thanks for having me as well today. My name is Alicia Wasula and I own STM weather. We're based in upstate New York and my my firm focuses on forensic meteorology, so I spend my time looking at past weather events, usually in the context of litigation, such as what we're going to talk about today. So I likewise am really glad to be here and excited to speak with you. So we'll jump right into a course outline. It's pretty straightforward, actually. And we're each going to sort of take a turn talking about a slip and fall case from our perspective. And I'll be setting up the case from the weather perspective to begin with. We'll talk about a specific storm that we've chosen as our example or case example to to discuss today. From there, we'll talk about the plaintiff's perspective. And David's going to handle that part. And Michelle will finish up with the defense perspective. So I mentioned I do forensic meteorology. Just to give you an idea of what my personal experience looks like here. Again, I'm in the Northeast United States, so a huge majority of the types of work that I do involve litigation with winter weather and a large number of those are slip and fall incidents on snow or ice. We do take cases from all over the country. We deal with a lot of different types of weather hazards, but geographically, this is the most that we see and that makes a lot of sense being, like I said, in upstate New York here. So we're going to be looking at the I say, the PI day storm a little bit tongue in cheek because as of the date of this recording, we have had another storm on Pi Day, which is March 14th, 3.14. So these storms can occur on PI Day or around Pi Day. We do tend to get some high impact weather in mid-March in the northeast United States. So this is not the Pi day storm, rather a Pi day storm. But this one that we're going to be talking about today occurred on March 13th and 14th, 2017. It was a pretty classic nor'easter setup with a storm coming up the eastern seaboard and some areas of the northeast United States received over three feet of snow with this storm. So huge impact. And then additionally, as the storm sort of moved off to the north and east, high winds and extreme cold, particularly for mid-March when we're almost hitting spring also were problematic weather impacts that caused numerous problems in and around the northeast. So what we're looking at here are three images or time stamps of the storm as it moved up the Eastern seaboard, starting on the left with March 13th at 4:00. These are all Eastern time. And you can see we have an area of low pressure off the coast of South Carolina and Georgia. This combined with the area of low pressure over Kentucky, west of the Appalachians, is what ultimately will become the Pi day storm as it moved up into the mid-Atlantic and the northeast. So you can see by 7 a.m. on March 14th, the morning of the heavy snow, we had a really intense area of low pressure off the coast of New Jersey. And then by 7 a.m., March 15th on the right hand panel, just 24 hours later, the storm had moved up into Maine. And you can see those pressure, those lines of pressure on the weather map. When you see a lot of those close together, that's indicative of very high winds. So even though the storm had moved up into Maine on March 15th, there were continued impacts, like I said, in the form of blowing snow. A little quick radar loop to go through here. Shows you when the precipitation happened and where and wherever you see yellows or oranges, that is indicative of heavy snow going on. So this storm was a pretty quick hitting storm in terms of the precipitation, really just about a 36 hour or 39 hour time period shown here. But again, the impacts in terms of winds and other types of weather also continued after the time of the precipitation. Snowfall map here shown on the top left where you see those dark reds. That represents over three feet of snow across central and northern New York. And you can see, generally speaking, along the extreme east coast of the United States, right along the coast, there was actually only about 3 to 6in of snow in those blue colors. So this is a little bit interesting because if you look at the bottom left, what you're seeing there is a map of all those pinpricks indicate locations of slip and falls that I have seen or been retained to do an analysis for related to this storm just in my own practice. So this is not, you know, meteorology wide across the field. This is what I've seen so far. And what's interesting here is that a lot of the cases where people slipped and fell were not where the highest snow totals were. And this is something that's pretty common. And I see this a lot, the slip and fall cases where we need to do a weather analysis for an attorney are oftentimes not these big blockbuster storms like this event was in central New York, but rather there are these little run of the mill kind of cold snaps, melting and refreezing or little types of nuisance storms that create impacts where people slip and fall. I suspect, although I don't know for 100% certainty that it's a combination of both meteorology and human behavior. When the weather is going to be really, really bad, people tend to stay home, whereas when there's less snow or less impacts, people will still be out and about trying to get to work and school and all of that. So I suspect that's part of the the explanation here. So what happens now is that I'm going to turn this over to David and he is going to talk about what happens when somebody contacts him after having slipped and fallen on snow or ice. Absolutely. Thank you so much. So as a plaintiff's attorney, it's your job to help someone out when they call you or when they walk into the office after they've slipped and fallen due to the possible negligence of, let's say, a restaurant owner or a building or basically anyone. So I just want to say at my firm, we have a very hard and fast rule. We do not sign up and we do not retain slips on snow and ice same day unless we have all the information which we probably can't get the same day unless the plaintiff is attorney shopping and has everything ready to go. So if someone slips and falls, they give my office a call. I'll want to do the intake process with them. I do want to say to all the attorneys out there, the intake process is so important, especially for a slip and fall snow and ice case. It is not like a car accident case, a car accident case. You're going to have a police report. In other types of cases, you can get, let's say a title report or an accident report with a slip and fall case. Many times a plaintiff slips and falls, gets up or is helped up and walks away and thinks they're fine, doesn't take any photographs. And then maybe a day later, they're really starting to feel that pain, either in their back or in their hand or their head. Et cetera. So there might not be a report generated as a result of my plaintiff slipping and falling on snow or ice. One of the reasons, the critical reasons why I don't sign these cases up same day is there might be a lot of third party practice going on. So let's just say that my potential plaintiff is walking out of a restaurant and slips and falls on ice right in front of the restaurant. A lot of people think, Oh, that's great, just sue the restaurant and see what happens. But a lot of people might not realize that it might not be the restaurant's duty and job to take care of the snow and ice removal in front of that restaurant. So I really want to do my research before I sign that plaintiff up. I've heard some horror stories, and this is for the plaintiffs out there. Plaintiff's counsel I've heard some horror stories of people signing a case up very quickly and then much later realizing that a municipality or a state or a government was tasked and had the duty of removing snow and ice, that is a very, very scary situation. That could be a potentially malpractice situation if you wait too long to find out who was responsible. So in my office, I don't mind if an attorney excuse me, if a plaintiff is attorney shopping and says, hey, I need you to sign me up today, I want a lawsuit today, that is not the case for me. I will send it to a colleague. So basically somebody will call and say they slipped and fell on ice. It's interesting because as the weather gets warmer, the intake process is much different than it is in the winter, in the winter or in the colder months. If a plaintiff calls and says, I slipped and fell on ice two weeks ago, I will get the location and the next time that it snows or is icy, I will send an investigator out to that location to see who is cleaning that area up. It might not be the people responsible, but it might get me pointed in the right direction. So I'll send an investigator and many times the investigator will show me photographs of a municipality or a local town or sometimes a neighboring town, which is wild, where let's say you sue Town A but they actually contract with town B to remove the snow and ice. You really want to make sure you hit the right the right people in your notice of claim in New York or eventually in your lawsuit. In the summer months, it's much different. Somebody comes to me and says, You know, David, I slipped on ice six months ago. I haven't really been the same. I've been trading. I've been going to the doctor. I can't send an investigator out now. The next time it snows might be six months from now. So it's something that you really want to take into account. Signing up a case either during the winter months versus the summer months, you're going to have more information in the winter months. So I wanted to touch base on that. Also very important to the intake process. Michelle is going to do a fantastic job about explaining some of the defenses that her firm and many defense firms in New York use. When I start my personal injury case, one of them is very important and is called the Storm in Progress rule. Basically, if it's snowing, raining at the time that my plaintiff falls, it's going to be an extremely uphill battle that I'll need Alicia's help for. So if my plaintiff comes to me and says, Hey, David, I slipped and fell six months ago, I'm going to ask, Hey, was it. Snowing. Was it raining? Chances are they don't really remember. They really remember falling and they remember the piles of snow on the ground. They remember the pain that they felt, but they don't really remember if it is snowing or raining at the time of their actual accident. And I've heard other stories of attorneys that just take plaintiffs at their word and just kind of litigate the case and then it's too late. Then they find out much, much too late that it was actually snowing and they could have put their defense together. But it's too late. So those are the things that you really want to think about from a plaintiff's perspective. Obviously, my plaintiff attorneys out there, business is business. You want sign ups. But what you don't want is a case that you sign up and then two years later you find out that it was actually snowing and you're going to get banged with a summary judgment motion from someone like Michelle that's going to do their research after you file your note of issue and you're going to have to explain to your plaintiff why they no longer have a case and that if you did your job, you would have known this two years ago and you could have managed their expectations. So those are the things that you really want to think about. It's a lot because these cases are very hard and very tough. I do want to go over some of the red flags during the intake process for a potential plaintiff when they call me or when they come to my office. One I hear very often is I'll ask a plaintiff, what were you doing at the time of your incident? And they'll say something to the extent of I was running to catch a train. I was running to catch a subway. Et cetera. That that one sentence is littered with red flags all over it. The first part I was running in New York, in the counties that I practice in, we have to deal with contributory negligence. And so sometimes we have plaintiffs that are going to get their laundry and they don't really put all their clothes on. You know, they'll put on a t shirt on and sweatpants and they just want to run downstairs and get their laundry. And they run out and flip flops. Well, I know that a really good defense attorney like Michelle is going to be able to argue that that is really not appropriate footwear when you're going outside a day or two after it was snowing and raining and icy. So I'm going to have to deal with that. I'm also going to catch a train or subway. This is that municipality issue that I was speaking about earlier in New York. You have 90 days to file your notice of claim and serve it on a municipality, telling them basically, hey, we think there's a claim here against you. Here's all the information that you're going to need. This is a condition precedent. You have to do this. If you don't do this, you're in very big trouble. And I have heard stories about plaintiffs that don't do this in a timely fashion, and then they're in very, very big trouble. So if I have someone that says, yeah, you know, I was running to catch a train about three months ago and I slipped and fell and it really, really hurts. And the doctor's recommending a surgery. You really have to stop and say, wait a minute, it looks like this might be a municipality issue. What if they were going down the steps to the subway or the train and they slipped and fell? It could be that the Long Island Railroad or New York City Transit Authority is responsible for maintaining those steps. You have to let them know that you you plan on pursuing a notice of claim and you plan on moving against them. If you don't, you're going to be in big trouble. And again, I've heard these stories and I'm telling you all out there now, try not to sign these cases up too quickly, because once you attach your your your firm and your malpractice insurance really to the case, it's really on you. Um, the second one, it was snowing. We briefly spoke about that. Basically, Michelle is going to do a job, a good job later of just explaining how important it is that we establish what the weather was at the time of plaintiff's accident. I've worked with a few firms in the past. They'll go on something like Weather Underground or Weather.com to see if it was snowing or raining at the time of the incident. That will not hold up in court, literally, that will not hold up on an SJ motion that Michelle makes later on in the case. My philosophy is if you have a snow and ice case, you might as well get someone like Alicia working on it ASAP because she's going to have the data that you need and she does have the data that you need to show that it either wasn't or it was snowing or there was a reasonable amount of time since it had last snowed. Why go into a case like this blind and just hoping for the best? I've heard horror tales of plaintiffs that need multiple surgeries, that get summary judgment motions, and then you have an attorney bringing a client into the office to explain, We're so sorry. It was actually snowing at the time of your incident. The judge dismissed your case. You get nothing, no settlement, nothing. And, you know, that's something that the plaintiff's attorney should have. Known very soon after signing the case up. And it's not that difficult. It's a phone call to Alicia. So I would highly recommend doing that as soon as possible. Um, some of the others, SantaCon people drinking alcohol in the city. I mean, I've heard the stories, people going to SantaCon, you know, they're drinking Guinness and, you know, whiskey. Et cetera. And they're partying and they're dancing. I actually have videos sometimes of people falling on ice and they're just drunk. I mean, you know, Michelle is going to be able to pick up on that. She's going to get the hospital records. She's going to see the blood alcohol content level of my client. My client's going to testify. They had four beers. And that's not to say that there isn't a personal injury case there. There might be, but it's really going to affect your damages. You know, as a plaintiff's attorney, you have to think about liability. You have to think about damages, and you have to think about insurance. If somebody tells me that they slipped and fell on ice a year ago and there's clear liability here and I have the target. Defendant But there's no treatment. They're fine. There's no damages to the case. Michelle is going to pick up on the fact that my plaintiff was four or 5 or 6 beers in and juries don't like hearing that and judges don't like hearing that. So if we go to a settlement conference or we go to speak in front of a jury, they're going to hold that against my client. I've had judges push me out of court in the Bronx, particularly because my client was drunk at the time that they either fell down stairs or slipped on ice. It's a really big deal and it's going to affect your ability to settle your case if that's what your ultimate goal is. So it's something that you want to keep into account and it's something that you definitely want to ask during your intake process. Another It all happens so fast. I didn't see what I slipped on. As a plaintiff's attorney, I hear this kind of sentence all the time. I hear it in regard to car accidents. Oh my God, The accident happened so fast, I didn't see the car. Et cetera. You really want to flesh this out at the intake with your client or potential client? You have to show in New York what caused you to slip. I mean, it would be very unfair to a defendant to say, hey, listen, my plaintiff was walking down the street on XYZ Avenue and slipped and fell. We don't know what they fell on. Was it a crack? Was it, you know, snow? Was it ice? Was it a banana peel? That's not fair to the defendant. And by law, I have to show what the plaintiff fell on. So I will have a very, very long conversation. If I get an answer like that, I'll say, where Where was your foot? Where was your left foot? Where was your right foot? When was the last time that you felt ice on the bottom of your foot or flip flop or snow boot? Et cetera. And I will just keep prodding the plaintiff to see if they can remember. If they can't remember what they slip on. That is a no sign up for me. I am not litigating a case and waiting until plaintiff's deposition, and then all of a sudden the plaintiff is deposed and says, I actually didn't see what I slipped on. That's all. Michel needs to make a summary judgment motion the day after she gets that transcript. And I do not want that to happen. So you really want to make sure during the intake that you establish what caused your plaintiff to fall? Um, they did a bad job salting and plowing. Well, then they tried. You want to take that into account? I mean, the duty of, you know, a landowner or whoever is responsible isn't to, you know, be perfectly clear that there isn't any snow or ice on the ground at all. They can't do that. You know, if they did a bad job salting and plowing, then there's a couple of things that happen. One is, you know, that they tried. Maybe they weren't negligent, maybe they did the best they could. And second, somebody was there, somebody actually salted and plowed. So you need to find out if it was actually the person you're suing or potentially suing or there could be that third party practice. There could be someone that you don't know that's out in that atmosphere that could be a municipality or a small mom and pop plowing company. You need to figure that out. You need to figure it out really fast. And lastly, black ice, black ice is very, very tricky. Black ice it again, you know, being unfair to the defendant, how can the defendant be responsible for cleaning something up that they can't see that nobody could see? A lot of people after they slip and fall, they will go to the doctor. They'll go to the hospital. Et cetera. And they'll tell everybody I slipped on black ice, and then it's all over my hospital record. And yeah, sure. You know, maybe the plaintiff thinks that black ice is actually cracked, cloudy ice. Et cetera. But during the deposition, a good defense attorney like Michelle is going to point out every single time that the plaintiff said black ice to doctors, hospital staff, the intake staff, et cetera. And that is also a no go. Michelle will be able to make a summary judgment motion based on my client saying that they fell on black ice. And sometimes that's what happens. Sometimes I see pictures of my client on the ground that I have to turn over to someone like Michelle, and they're my client is, you know, kind of slumped over some black ice that I could barely see. If you're signing up a client and you're looking at a photo of them on the ground and you're asking your client, hey, where's the ice in this photo? You have a big problem. So you really want to stay on your toes when you're signing up these cases. It's not like a car accident case when you're going to get that police report within a week or two and you're going to see what who that car is registered to, it's going to make your life a lot easier. You really have to do the detective work and you don't have to do it alone. I don't do it alone. I tell my clients I went to law school, not med school and not school to be a meteorologist. I hire people so that I can present my case to a judge or a jury. So Alicia is very helpful to me in that aspect. Funnily enough, Alicia and I just asked her about a new case that I signed up and I'm going to be working with her and I just filed the summons and complaint not even a month ago. That's how soon that I reach out to get the experts on my cases. And I do. Before I end, I do want to just move on to some photos that were taken on slip and ice cases. If you get photos like this from a plaintiff and this goes to all my plaintiff attorneys out there and I mean, the defense attorneys probably already know it. But if you get photos like this, first of all, that top right photo is is a very difficult photo to use because it doesn't really show the area. So if my plaintiff is testifying that this photograph is a fair and accurate representation of the way that the snow and ice looked at the moment that they fell during a deposition, a jury is going to have a really hard time buying it because this photograph could have been taken of almost any location with a white line. So if you do have the opportunity, I have some clients that call me, you know, within minutes after they fell or a car accident. And I tell them, take photos and take a few steps back. I mean, just like some people that take photographs of a car very, very close up, they'll take photographs of the damage. But you can't see the license plate. You can't see whose card is It applies to these photographs as well. So you really want to tell your plaintiffs, hey, just take kind of a wide shot, more like the shot on the left. So if you look at the photo on the left, you do see some snow and ice piled up. And that tells you that this area has been treated. And so you don't have a situation where it snowed and for 2 or 3 days nothing happened. And now your plaintiff is walking across a parking lot and fell. It looks like this area has been plowed. So you should, as the plaintiff's attorney, you need to get the wheels in motion figuring out who was there to plow this so that you can bring them into the case, or at least you can ask them questions. Who hired them? You can see their contract. You can move for some pre-action disclosures and discoveries. You really got to make moves on these snow and ice cases. You can't sit on them. So those are just some of the things that I wanted to talk about. And eventually I'm going to call Alicia. I'm going to say, listen, I have someone that fell. Here's the address, here's the time. Work your magic, please, and tell me what the weather was like for the past couple of days leading up to the fall, because I don't trust Weather.com or Weather Underground. And I will call Alicia as soon as I possibly can and get her on my case. Yeah, Alicia, if you want to, you know, talk about what it's like when you get a phone call from someone like me. That would be fantastic. Sure. Absolutely. So I'll start even with these pictures that we have on the screen right now, regardless of whether I'm retained by plaintiff's counsel or defense counsel, if I see pictures like this, I have a lot of questions about the weather and about the meteorology. You know, like David said, I can see that there has been some treatment done. But my questions are things like, well, when did that snow fall? How long was it there for? What were the temperatures like after the snow fell? Was there melting refreezing of snow and ice and even questions that an engineer might need to answer, like what is the grade of that parking lot? Where is that snow going to melt and run off to? So there's a lot of questions involved when I take on a new case. So the first thing I do, whether by phone or Zoom or whatever, is I will meet with council to discuss what kinds of questions they need answered. Obviously I need the basic information where it happened, when it happened, what time of day it happened. And I always double check. For example, if somebody says the accident happened at midnight. Well, is that midnight going into that calendar day or is it midnight going out of the calendar day into the next one? So just making sure that we have the date and the location? Correct. Which corner of that intersection was the fall on? What were the buildings around it like? Was there any shadows cast by buildings, anything that could affect potentially melting and refreezing? I would be interested in knowing. I also need to know what kinds of questions need to be answered for this particular case for a slip and fall, whether I'm retained by plaintiff or defense counsel generally, they need to know whether or not there was a storm in progress. Was there any precipitation that fell prior to the date of the incident and how much and what type? And then like I mentioned with the pictures, was there any melting and refreezing of old snow that may have been obscured by, say, a dusting of snow that had more recently fallen? I always ask for any case documents that may be relevant to the weather. I don't necessarily need all of the medical records and that kind of thing. But if there are any deposition transcripts that have already been taken that reference, the weather recollections of what happened with the weather descriptions of the ice, anything like that is helpful. Accident reports, police reports and even photographs, if they were taken after the time of the incident, can sometimes be helpful in just understanding the context and the full picture of the situation before I go into the weather record. So I don't necessarily rely on those kinds of documents to form an opinion that's going to come from the weather data. But it's helpful for me to understand sort of the bigger picture of what's going on. The other questions that I always ask and please let me know up front is whether or not you have a deadline. As David mentioned, retaining a meteorologist early on is very helpful, but sometimes it can't be helped. Sometimes you're pretty far along and you didn't realize that you needed some help decoding some weather records or you don't really understand what went on. And then there is a deadline. So that's important for me to know. And then what kind of deliverable are you expecting in the end? I always brief my clients orally over the phone before I put anything into a written report. But what is that report going to look like? Do you need just a summary of the weather facts? No opinion necessary. Do you need a written report with an opinion or do you need an affidavit drafted in support of a motion that you're filing? I can do any of those things. And usually after we have that briefing conversation, you'll have a better idea of what you might need. So I think David left us off here where he retains me. And then the next step in this process is that I would be doing the research. And so I'm going to spend just a little bit of time here today explaining to you how I go about that. It's actually not magic. There is some science to it, although, you know, weather forecasting can be very difficult and, you know, so can weather analysis. But we'll definitely talk about what we do here so that you have a better idea of what kind of deliverable you might expect when you retain a meteorologist. So once I have a solid idea of what kinds of questions I need to look into, the next step is finding data. And you can see in that middle box there, it's like going to the cereal aisle at the grocery store. There are a million types of choices when it comes to weather data. Some of them are really necessary for a particular case. Some of them are not. For example, I'm not going to download and spend money on lightning data if we're dealing with a slip and fall on snow and ice. So my job is to determine the most complete set of weather data to use without being superfluous. We don't need all the data all the time and that gets expensive. But we do need to be complete and make sure that we really have the most representative set of weather observations. I'll talk about that in just a little bit. When we have all of that, I will develop a chronology of weather events. Now, I always go back in time because context is important. It may just be a couple of days. If it was one big storm and not much else before that, then maybe we only need to go back a couple of days into the weather record. But I've had situations where there's multiple small storms followed by repeated rounds of melting and refreezing, and all of those facts are really relevant in painting a picture of what happened leading up to a particular fall event. So we'll talk about all of that during the briefing part as well. I mentioned choosing appropriate data. This is the foundational step to any solid meteorological analysis. I have to be able to choose from what's available of which there is copious data, but not all of it meets the requirements that we would need to consider that really reliable and relevant data to a particular case. And I love this quote that I have on the bottom. This is an article from the Bulletin of the American Meteorological Society from 1971, and it's still true today. The authors say that considering that within 50 miles of downtown Boston, there are civilian airport sites, military sites, cooperative weather observers and all of those are giving data maybe once daily to hourly or even more often than that. That leads to thousands of observations every single day. But we always consider whether the data is a available. Sometimes it's missing and meteorologists rely on a lot of networks of trained volunteers. And those weather observations are high quality. But if a volunteer is on vacation, the data may not be there. Is it representative? I live in upstate New York and I live in an area of the Hudson Valley where you could be two miles from the river and the elevation changes by 500ft. Well, that may render an observation completely unrepresentative. If you're looking at snowfall or snow depth, maybe that nearby site really doesn't reflect what would have occurred at the incident site. What is the documentation like? What is the quality control processes for that data? Does it cost money? Sometimes we can use free data and then we later pay for certification from NOAA, for example, the National Oceanic and Atmospheric Administration. And then other times we have to pay up front for data like lightning I mentioned earlier. So we have to consider those things and we don't want to order data that we need to pay for that really isn't relevant to a particular weather event. Is it necessary, like I've talked about? And then that certification a lot of times to get data admitted into court, it needs to have a certification with it. Any records from the federal government, including from some of these volunteer networks, from federally maintained networks? These are all archived at the government and can be certified for a cost. And there are other networks which maybe are state networks of weather data, for example, where you pay up front for that data. But it comes with an affidavit of certification, and all of that makes it much easier to get data admitted into court. The last thing you want to do as a meteorologist is rely on some kind of secondary weather station that you don't know anything about, whether it's sited appropriately and it's not certified. You don't know anything about the quality control, and then you rely on that data as a foundation of your opinion. Well, that could render your whole opinion at risk if that data is not admitted into court. So we always look for certification options as a first course. So this is an example of what you might see or what I might sort of synthesize from my notes for that hypothetical storm, the PI Day storm, a hypothetical slip and fall in Manhattan, I would say. Okay. So the first first order station, the closest one is in Central Park, maybe a couple of miles even from the incident site at that station, there was 7.6in of snow. I would note the start time, the end time, I would note what types of precipitation were observed. I would note the temperatures during and after the time of the incident and any other relevant weather conditions. So in this case, I mentioned we talked about the winds being problematic. I would use radar data that tells you when and where and how intense precipitation is. And so we can determine at the end site, at the incident site, what time the precipitation ended. The other thing we do is pull National Weather Service, federal government warnings and statements related to the particular storm. In this case, I would note that there was a winter weather advisory in effect. It ended at 3:10 p.m. on March 14th. However, there were additional statements later issued four times between the 14th and the 15th for ice and refreezing. That's a relevant piece of information because maybe there's a notice concern here where these statements were out in the public. So I would then take all of this information and then I would call up the attorney and give a verbal briefing. And that's the next step in the process. I would summarize the weather situation, summarize the watches and warnings. We would have a discussion about these complicating factors, whether the winds were a problematic and maybe hindered snow removal efforts, whether there was mixed precipitation types or, like I said before, whether you have a case where there was clearly a source for old ice, but it might have been obscured by a very recent dusting of snow. I will look at the testimony and determine whether the recollections of the individuals are consistent with what the weather record shows. People remember things differently years later. So sometimes things are consistent and sometimes they're not consistent with what the weather data actually would indicate went on. And then the next steps would be that I would either draft a report, draft an affidavit, or maybe just do nothing. Maybe the information is sufficient at this point, and then the attorney might come to me later on asking for a report down the road. So those are all possible outcomes. And then I think once we get to this point, we're going to turn this case now over to Michelle, and she's going to talk about what happens from the defense perspective. Thank you, Alicia. So from a defense perspective, it sounds basic, but I need to know the who, what, when, where and why. Because the law and defenses that apply to, say, owners versus tenants versus snow removal contractors differ. So it's important to identify who am I representing and who are the players? What is the responsibility of each player? Where did the accident happen? When are the players required to exercise their responsibility? And why did the accident happen? What was the cause of the fall? When I'm representing an owner, I always first look at the deed because I want to know if my client actually owned the location where the accident occurred. Now, of course, most time plaintiff's attorneys like David have done their homework. But occasionally when I pull a deed, I see that my client transferred the property prior to the accident or purchased it after, and that would trigger a voluntary dismissal or a motion to dismiss. When I look at the data, I'm also looking at the type of property in issue. Is it a single 2 or 3 family home? And this classification becomes relevant later on when looking at defenses to statutory liability or is it a condominium? And if so, what is my client's role? A condo board is generally responsible for the common elements, which may include a parking lot. And so I want to make sure that I get my hands immediately on the declarations and the bylaws, which dictate the responsibility for common and limited common elements. Alternatively, if I'm representing an individual unit owner, I might once again be gearing up for a voluntary dismissal or a motion to dismiss, since the individual unit owners are typically only responsible for the space within their four walls. The responsibility of a landowner with respect to the property is generally a non-delegable common law duty to maintain the premises in a reasonably safe condition. Well, that's really not entirely helpful. As attorneys, we see this word reasonable all the time, but what does it actually mean? So in this context, it would include acts such as placing warning cones, beginning the cleanup process, shoveling down to the pavement. But of course, it's going to be very fact specific. Next we look at where where did the accident happen? Was it on a portion of the premises that was actually within the metes and bounds of my client's ownership? Or was it on a public sidewalk? Because beyond the common law duty to maintain its premises in a reasonably safe condition, a property owner may also have a statutory duty to maintain a publicly owned sidewalk. Now, generally liability for injuries sustained as a result of negligent maintenance of or the existence of a dangerous condition on a public sidewalk is placed with the municipality and not the landowner. However, and it's a big however, statutes such as New York City Administrative Code 7 to 10 place that duty not with the municipality but with the landowner with 7 to 10 states is that it shall be the duty of the owner of real property abutting any sidewalk to maintain such sidewalk in a reasonably safe condition. And now this code actually goes one extra step to impose liability on that landowner for any injury to property or personal injury. So in effect, a property owner in New York City is responsible for maintaining the public sidewalk in front of its building, including structural maintenance, such as repaving and repairing and, of course, snow removal. And it can be held liable for its failure to do so. So this statute does also contain a carve out for one, 2 or 3 family residential real property owners that is partially owner occupied and used exclusively for residential purposes. So I'm going to talk to my client and figure out what was the purpose of this building, What were they doing there? In addition, the owner of an individual condo unit is not considered an owner for purposes of 7 to 10. Even a ground unit owner abutting the exact area where the accident happened. But if we're outside of New York City, you have to compare any applicable local codes or statutes, let's say, such as the one in the town of Hempstead or the city of Long Beach, because the codes there also impose the same duty on the land owner to maintain the sidewalk, to remove snow and ice. But it does not go that extra step to expressly impose tort liability on the owner. So there's no private right of action. Plaintiff slips and falls in front of my client's house in East Meadow, New York. My homeowner is protected. Now, you might be asking yourself, well, why do they have this duty to maintain it? And that's simply to relieve the town of the responsibility to do it. If my homeowner client fails to remove snow and ice, the town steps in, They undertake those duties and then they can find my client. But it does not allow a private right of action for a slip and fall matter. I'm also looking for other outs for my client because despite all of the above, there may be no liability if the accident occurred on a curb or in a tree. Well, or in a car or in hardware. And in that case, the city or the municipality might still be liable. If I am representing a tenant, what I look to is the lease because the tenant's liability is going to be governed by the contract and their conduct. A lease usually contains language. Saying something along the lines of tenant shall take good care of the demised premises. Again, what does that mean? It's usually defined a little bit further. That clause might go on to say, including removal of snow and ice. So while the owner has the non-delegable duty, they can still pass on the acts themselves. So the duty itself is non-delegable, but the duties, the acts are delegable and owner can pass that responsibility, not the liability, onto the tenant. You also look at the tenants conduct though, because even if the lease did not require them to go out and shovel and plough, but they nonetheless undertook that duty, well then. An attorney like David is going to look at the tenant and say, you caused the condition, you created it, you exacerbated it, and that might hook the tenant in on liability by way of their conduct. The snow removal contractor is another common party in these types of litigation and generally a contractual obligation. Standing alone will not give rise to tort liability in favor of a third party. So a direct action by an injured plaintiff against the snow removal contractor is subject to dismissal because there is no duty except for exceptions that we'll talk about later under the Aspinall matter. So what are some of the common legal defenses? And this has been touched on by both David and Alicia when we're talking about a storm in progress and this is one of those situations where you do want to retain a meteorologist as soon as you can in the action. Because if I can establish that a storm was ongoing, there is no liability. And I'm sorry, but I have to roll my eyes when I tell my adversary that there was a storm in progress at the time of the accident and that my client is not liable. And my adversary says, But it wasn't a storm because that's not what case law requires. It doesn't require blizzard conditions. In order for the defense to apply. What the storm in progress provides is that an owner owes no duty to remove snow and ice until a reasonable or adequate time has elapsed after the storm has stopped. So there's no threshold for a for establishing that a storm is in progress is typically if precipitation is falling, the defense is available. So a light snow or even a drizzle is usually sufficient to demonstrate that a storm was in progress. And here weather records are crucial. I will always pull up preliminary weather records, as David referred to Weather Underground, some other sites that are available. But you have to get a meteorologist because as laymen, we are unable to distill complete weather information ourselves. And sometimes I swear there's hieroglyphics in these records. So retaining a meteorologist will help reconstruct the accident scene. The meteorologist can draw data from various sources and interpret it so you, your client and the court can easily digest it. I do want you to keep in mind that a lull or a break in the storm does not trigger the duty. So if there's a storm in progress, a 12 hour storm, but precipitation tapers off temporarily throughout the day. The duty to commence snow removal efforts is not triggered. The defense also allows for a reasonable time after the storm has stopped. So again, this word reasonable. What does that mean? First thing we're going to do is look to local codes in New York City. There is an administrative code that allows essentially a four hour grace period before a party is required to go out and commence snow and ice removal measures. There are certain hours accepted the overnight hours. Right. You're not expected to jump out of bed at 3:00 in the morning to start shoveling your sidewalk. Absent a. The code or statute that governs the time frame. It's going to be very fact specific as to what constitutes a reasonable time. Another instance when I'm going to reach out to Alicia and say, Alicia, can you please put together a reconstruction? What was the severity of the storm? What was the nature of the precipitation? Were there fallen trees? Were there high winds? Because if all of these factors are present, I'm going to say that it was not reasonable for my client to go out because it was unsafe. And that will allow my client some wiggle room there before they have to go out and start shoveling snowing and plowing. Another defense that we're all familiar with is notice the plaintiff has to establish that my client, no matter who I'm representing, the owner, the tenant, the snow removal contractor, the property manager, David, has to demonstrate that my client had either actual or constructive notice of the exact condition that caused the accident. So when we're talking about actual notice, what we mean is whether the client. Actually new, right? Were they told about it? Did they receive emails from the tenants? Did they get a text message? Were they at the site? Did they know that it was there? When you're talking about constructive notice. This depends more on the timing and the appearance of the condition. How long was it there and what did it look like? No. Often a plaintiff might testify that, well, I saw footprints going through the patch of ice, and generally that might be enough to defeat any summary judgment motion I intend to make. Although I have been successful on appeal in the first apartment, through establishing that my client had a routine cleaning procedure and inspection schedule, I canvassed the building and I found witnesses who were in that area within the hour. The two hours, the three hours before plaintiff claims that they fell. And these witnesses, all individually and independently, said that they did not see any defective condition. Actions involving black ice are particularly challenging for plaintiffs, since black ice is a transient condition that is by definition difficult to see or recognize as ice. And if the condition is not readily visible and apparent and not even seen by the plaintiff, it will be difficult or perhaps even impossible for plaintiff to demonstrate that my client saw or should have seen it, and thus plaintiff has failed to establish constructive notice. And David had alluded before, you know, if if he learns from his client that his client told the doctor, told her physician that she tripped on black ice, I'm going to see that in the record and I'm going to flag that. I'm going to mark it as an exhibit at plaintiff's deposition. And you bet, I'll be asking her about it. You have to keep in mind that a general awareness of a condition. So for instance, that water might be tracked into a building when it snows or rains, that that general idea is insufficient to impute. Constructive notice of that particular puddle. But that is to be distinguished from a recurrent condition. When I think of a recurrent condition, I think of maybe an icicle that hangs off of a gutter, that every time it melts and refreezes, there's a an ice patch that forms underneath this gutter. So actual notice of a recurrent condition can impute. Constructive notice of each specific recurrence of a particular condition. And that's something that David is going to be questioning my client about at my client's deposition. One last thing on notice is the concept of open and obvious. So my client would owe no duty to warn of a condition that is open and obvious to everybody. Of course, this is very fact specific and generally a question for the jury, but at the very least, I'm going to use this in in evaluating plaintiff's comparative faults and I'm making leverage at settlement. Next slide. Finally is the issue of proximate cause. And David touched on this earlier, too. What caused the fall? Can the plaintiff identify the exact condition that caused him or her to slip? In a slip and fall case, A plaintiff's inability to identify the cause of the accident is absolutely fatal to the cause of action, since a finding of proximate cause would be based on nothing more than speculation. I don't know what my foot hit. I don't know what caused me to fall. Well, you bet. I'm gearing up for a summary judgment motion at the conclusion of discovery because plaintiff has not satisfied all of the elements of negligence. Next slide. These are the Espinal defenses that I alluded to earlier. When we're dealing with not only snow removal contractors, but any third party contractor, and this could include a property manager as well. So generally, those roles don't owe a direct duty to a plaintiff, right? An owner owes a common law duty to maintain their premises in a safe condition. But what duty does a property manager or a snow removal contractor owe to that same plaintiff for that same area? None, except if one of these three exceptions apply. That would be if the contracts are entirely displaced, the owner, or if the plaintiff detrimentally relied on the contractor in its obligations, or if the contractor launched the force of harm. Now, the first two are difficult hurdles to achieve when you're trying to establish that the contractor completely displaced the place of the owner. What do you look at? Well, you look at if the snow removal contractor, if his duties were automatically triggered under the contract or if the owner had to call the snow removal contractor and say, hey, can you please come out and take care of the parking lot? You look at whether or not the owner had shovels, had salt on site, whether or not the owner had its own maintenance staff, its janitorial staff, that would once in a while go out and clear some snow, clear some ice, throw down salt. If any of those things exist, then you can't say that the snow removal contractor entirely displaced the role of the owner because the owner was still actively involved in maintaining and managing the property. Detrimental reliance is an even harder hurdle to cross because you have to establish that the plaintiff knew of the contractor, knew of the obligations, was expecting this contractor to do a certain thing at a certain time. And generally a pedestrian walking down a sidewalk has no idea where they are sometimes, let alone who is responsible to maintain the area. So the one that really comes into play most of the time is whether or not the contractor launched the force of harm, whether or not the contractor came in and made things worse. And typically, when you see this is when the contractor piles snow on an uphill area of a parking lot on the pavement, not on the grass where it can melt and be absorbed, but on the pavement, not next to a drain where it will melt and run downstream and create a patch of ice. And so in those situations, I always make sure I'm asking the plaintiff at the deposition what was the origin of the patch of ice that you slipped on? Where did it come from? How long had it been there? Did you see a trail of water or ice coming from the snowpack? Snow pile was the snow pile on grass. Was it on pavement? Was it next to a storm drain? What was the weather? Did you see it melting? Did you see it running? All of these things are important because if my client, my snow removal contractor client did not launch the force of harm, I'm going to tell David, Sorry, buddy, look somewhere else, because my client has no liability here. Think we've made clear and how important it is to consult with a meteorologist as soon as you can. This will help you establish your facts and theories early on. So no matter what side you're on, you're not wasting your client's time or money. It's going to help you make informed decisions and to prepare for depositions so that you can tailor discovery toward a storm in progress defense or a launch the force of harm defense. If you know what the weather looked like, what the ground conditions looked like on the day of and the days leading up to the accident, this will help you from day one through discovery, through depositions, and will help advise your client appropriately. So of course, if you can't retain a meteorologist as soon as possible, you're going to want to do it throughout the discovery process. But. At the very latest at the time of summary judgment. You can go to the next slide. If you don't have a. An expert affidavit on your summary judgment motion. You're not in a good position. Again, the meteorologist is going to pull data from various sources and give you the most accurate recreation of what things looked like on the time and on the day of your accident. And weather records, whether they're certified or uncertified, will not be sufficient to say defeat your adversaries expert affidavit. So you're going to want the affidavit of your meteorologist that distills all of the information and regurgitates it in a succinct way that the court can understand it and hopefully grant your motion. Yeah. You know, actually, Michelle, I wanted to speak on this, too, if that's all right. But I just want to let all the plaintiff's attorneys out there know that, you know, when you're gearing your case up, when you're signing your case up, you're already thinking about that motion for summary judgment. You're thinking about whether this is the kind of case where you think that settlement might be appropriate or the kind of case where you want to go to trial. I know in New York there are different counties and every county has different jurors and jurors give different amounts of money for different kinds of cases. And, you know, you really want to take that all into account. But either way, it's going to make not only your life easier, but your client's case better to make sure that you reach out to somebody, all the experts in your case, really, including someone like Alicia, who is a meteorologist earlier rather than later. I these are not, you know, hypothetical stories. I have heard stories of people that sign these cases up. They get the surgeries, as you know. They're very excited. They think I have a big case and then they find out after deposition or right before deposition that the plaintiff can't figure out what they fell on or that it was snowing at the time or they don't have the data that they needed. It just makes the most sense to reach out to someone like Alicia. I know we're saying it over and over as early as possible. I mean, if you if I want to get someone like Michelle in the room for a settlement conference, a real settlement conference, not one where we're just going to kind of throw silly numbers, I'm going to ask for $10 million. She's going to offer $25,000. We're going to get free sandwiches at a mediation and then go home. If I really want to gear this case up for settlement, I need an expert on my side. I need to know the facts are on my side so that we can talk real numbers. I mean, it's common knowledge. Many clients don't actually want to go to trial. They don't want to sit on that stand and tell their story. They get really freaked out during the deposition. That might last a day or two, and they don't want to go to trial. They don't want to. They're very nervous. So there are many cases that I have to set up for settlement. And in order to get the best case, you know, the best number for my client, I have to have all my ducks in a row, which absolutely, you know, would include Alicia. Also, like Michelle said, I don't know this stuff. I do a really good job of presenting cases and facts to the jury. But Alicia and other experts are the expert. They're going to sit in their office or zoom or phone and explain to me what I need to explain to this jury during my opening statement. So, again, very important to reach out to a meteorologist sooner rather than later if you want to have a good outcome for your client. Alicia, what are your thoughts? Yeah, I definitely just wanted to jump in here too. Excuse me. Being retained very early on in the process is also helpful from my end. Obviously, I talked about the deadline situation. Sometimes there are data outages and things like that. So the more time we have, the better. Also, you know, this is not a known outcome necessarily. When I get retained, I don't know if there's going to be a storm in progress. There may be some unexpected or complicating factor with the weather chronology like we talked about. Well, yes, there was a light dusting of snow, but there was old ice under there. At least there was a source of it in the weather record. These are things that is always better to discuss early on. And I think in both cases, David and Michelle, I've briefed clients and said, hey, you know, yes, you may have a case here regarding the weather, but there's some things that you should know about. And I think knowing about those things going into depositions can be really helpful, even in terms of like questions that I would have liked to have known, like, well, when were they on the premises? If all of the depositions are done, you can't always go back and ask that of somebody. And I may not have some information that would be helpful when I craft my report if I wanted to reference that information. So definitely. And then in terms of trial prep, definitely meet with your meteorologist or your other experts like well in advance. Sometimes it's important to put together a graphic, sometimes just talking through direct exam and how to best tell the story to the lay people on the jury. There's a really neat back and forth that goes on during the trial prep process, and I always prefer a meeting well in advance, a couple of weeks at least. And rather than just a quick phone call the day before, I've had attorneys do both and I can definitely say it's better for everybody if we can meet ahead of time before a trial if it does come to that. Yeah, that's definitely a really good point. Sooner rather than later. I have been on the opposing end of some of Michelle's summary judgment motions, and the last thing that I want to do is call someone and say like, Hey, you know, I already asked for an adjournment on this. I got to get this done within a week or two. You don't really want to be there. And so those are fantastic points. I mean, the key takeaways really here are consult with the meteorologist as early as possible and listen from the plaintiff's perspective, these costs are going to get passed on to your client. So, I mean, I speak to my clients and I say, listen, if we really want to do this the right way, I want to hire an expert. This is the cost. Let's move forward with this. We don't want to go into this lawsuit blind. And all of them say, yeah, do what you got to do. It's going to increase the value of my case anyway. So, you know, Alicia, really good points. Michelle, did you want to step back in? I think you guys did a great job of covering most of the key takeaways just from a defense perspective. Additional takeaways would be to certainly understand the role of your client, because as I said earlier, the law and the defenses do apply differently depending on who you're representing. Yeah, that's definitely true. I've gotten into a lot of hot water and I've seen attorneys get into hot water when they're not really sure who the correct entity is. But Michelle is always really good about pointing it out. It's never fun when you get a phone call from defense counsel saying the plaintiff like, Hey, do you know what you're doing on this one? You sued the wrong entity. Get me out of this case. Et cetera. So and that's why from both perspectives, too, you got to obtain all the relevant documentation as soon as you can. The deed, the declarations, the contracts, the logs, so that you have all of the appropriate players in from day one. You're not waiting until the conclusion of depositions to bring in another party. Yeah, that's very frightening. Yep. No one wants to. All the plaintiff's attorneys out there, we all know date calculator.com when you're going to figure out wait a minute, how much time do I have to bring in this party? That is not a fun place to be. Once you see that number, you know, three years, in two months, you know you're in big trouble. You don't want to be there. So I think this would be a good point. I mean, if anybody has any other anecdotes or stories are welcome to. But, you know, I think we have a slide with our contact information on it because these cases are really tough. And if you want to consult with an attorney, a plaintiff's attorney, you can absolutely email me or go on my website and just call me. I think my website even has my cell phone number and I can just give you advice if you're thinking about, you know, pursuing a case, you really want to make sure you have all this information. Because if you don't, you can make a fatal mistake. And not only will you have to tell your client that your case is dismissed, it could be a situation where you have to put your malpractice carrier on notice. And that is not a fun boat to be in. Well, thank you, everybody. We appreciate you attending this with us. And we look forward to hearing from you.