From Casetext: Smarter Legal Research

Rothrock v. Cottom

Appellate Division of the Supreme Court of New York, Fourth Department
Nov 15, 1985
115 A.D.2d 242 (N.Y. App. Div. 1985)

Opinion

November 15, 1985

Appeal from the Supreme Court, Livingston County, Rosenbloom, J.

Present — Hancock, Jr., J.P., Doerr, Green, O'Donnell and Schnepp, JJ.


Judgment unanimously reversed, on the law, without costs, motions granted and complaint dismissed. Memorandum: In this negligence action, plaintiff Elnora Rothrock claimed that she slipped and fell on defendants' driveway, breaking her right wrist. It was undisputed at trial that plaintiff fell because of an accumulation of ice on the driveway, and that the storm which had caused this condition was still in progress at the time of the accident. It is well settled that "`[R]esponsibility for ice conditions arises, at the most, only after the lapse of a reasonable time for taking protective measures and never while a storm is in progress'" (Valentine v City of New York, 86 A.D.2d 381, 384, affd 57 N.Y.2d 932, quoting Valentine v State of New York, 197 Misc. 972, 975, affd. 277 App. Div. 1069, lv. denied 302 N.Y. 952). Since plaintiff fell on ice formed during a storm which was in progress at the time of the accident, she cannot recover (Moorhead v Hummel, 36 A.D.2d 682, 683; Falina v Hollis Diner, 281 App. Div. 711, affd 306 N.Y. 586). Defendants' motions at trial to dismiss the complaint on this ground should have been granted.


Summaries of

Rothrock v. Cottom

Appellate Division of the Supreme Court of New York, Fourth Department
Nov 15, 1985
115 A.D.2d 242 (N.Y. App. Div. 1985)
Case details for

Rothrock v. Cottom

Case Details

Full title:ELNORA ROTHROCK et al., Respondents, v. JOHN COTTOM et al., Appellants

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Nov 15, 1985

Citations

115 A.D.2d 242 (N.Y. App. Div. 1985)

Citing Cases

Sweeney v. Wegman's Food Market, Inc.

The proof was insufficient to support an inference that the mixed precipitation that gave rise to the icy…

Powell v. MLG Hillside Associates, L.P.

The "storm in progress" defense (Grau v. Taxter Park Assocs., 283 A.D.2d 551, lv denied 96 N.Y.2d 721) is…