Black Ice, Slip and Fall Claims, and Your Right to Compensation
You have no doubt heard the ironic expression “pure as New York snow,” which conjures up the mental image of ice blackened with soot. Well that’s not what “black ice” is. In fact, black ice is clear as a mountain stream. It looks black because, ominously, it covers blacktop. It is clear because you see right through it to the blacktop below – and that is what makes it dangerous. The term also applies to clear ice that covers sidewalks,
When and Where You Are Most Likely to Encounter Black Ice
Black ice tends to accumulate in shaded areas when the temperature dips below freezing. Watch for it below trees, tunnels, bridges, and overpasses. The greatest danger occurs when the temperature dips below freezing overnight, then rises to marginally above the freezing point during daylight hours
This weather pattern (where the temperature hovers around freezing, dipping above and below it, depending whether or not the area is sunlit or shaded) can leave streets and sidewalks free of ice in sunlit areas even as black ice lingers in the shade. The result is a high rate of accidents as pedestrians and motorists get caught by surprise. Be aware of this phenomenon and watch for it.
The Legal Responsibilities of a Property Owner under Premises Liability Law
The owner or occupier of real estate is legally responsible for making sure that his premises are safe for guests by conducting a reasonable inspection of the property for hazards (including black ice) and either repairing or warning of any hazards. This principle applies to private homeowners, businesses open to the public and even the government. Some cities have laws requiring property owners to keep the sidewalks in front of their property free of snow and ice.
Three general types of damages are available under New York personal injury law (anywhere in the state):
- Economic damages: Medical bills, lost wages, etc.
- Non-economic damages: Pain and suffering and other psychological trauma
- Punitive damages: Awarded only when the defendant’s conduct was outrageous or shocking to the conscience
These three types of damages are not alternatives – they are cumulative.
If you are seeking damages against your employer for a work-related slip and fall accident, your claim will probably be handled under the New York workers’ compensation system. There is good news and bad news here:
- The good news is that you can win without proving that your employer was at fault for the accident.
- The bad news is that you will not be able to collect non-economic damages such as pain and suffering or punitive damages.
Potential Defense: Comparative Fault
Under New York’s comparative fault rule, you are only entitled to damages to the extent that the accident was not your fault. Suppose, for example, that you slip on black ice in a grocery store parking lot that should have been kept free of ice, but you were intoxicated at the time of the accident.
The court might decide, for example, that you were 60 percent at fault and the grocery store was 40 percent at fault. In that case you would be eligible to receive only 40 percent of your damages. Theoretically, you could still receive one percent of your damages even if the accident was 99 percent your fault.
Potential Defense: Statute of Limitations
In New York, the statute of limitations deadline for filing a lawsuit (including a slip and fall lawsuit) is:
- three years from the date of the accident for a personal injury lawsuit; or
- two years after the victim’s date of death for a wrongful death lawsuit.
There are limited exceptions to these deadlines. In any case, it is best to get started on your claim well before these deadlines loom.
Liability of Employers
In most cases, insurance will be available to pay your claim (if you slip on black ice in someone’s driveway, for example, you can sue the owner and rely on his homeowner’s insurance policy to pay your claim). Suppose, however, that you were injured when a teenage employee failed to properly remove the ice from the parking lot of a drug store?
It is unlikely that the teenager will carry insurance to pay your claim, or that he will be able to pay the claim out of his own pocket. Are you out of luck? Not likely. You can probably file a claim against the drug store for the negligence of the teenager. Because, in most cases, an employer is responsible for the negligence of its employees.
I slipped on ice and broke my hip in the parking lot of my fitness gym. My membership contract contains an arbitration clause. How will this affect my claim?
Many consumer contracts contain an arbitration clause in which a private judge decides on your claim. Arbitration simplifies the rules of evidence and procedure, and it is usually a lot faster than courtroom litigation. The biggest disadvantage of arbitration is that, in most cases, you cannot appeal an adverse decision.
Although it is possible, in some cases, to have an arbitration clause invalidated or to appeal an adverse decision, in most cases, you are stuck with arbitration. That is not necessarily a problem, because arbitration tribunals are typically fair. And just because you signed an arbitration clause doesn’t mean you can’t still try to negotiate a private settlement of your claim. You can bring a lawyer with you and we can help you negotiate or, if necessary, arbitrate.
At E. Stewart Jones Hacker Murphy, we fight to win. Our record of victory at trial is so successful that most defendants don’t dare risk a trial – which is precisely why most of our personal injury clients receive out-of-court settlements. If you have been injured in a slip and fall accident, contact us online or call one of our offices in Troy, Albany, Saratoga, or Schenectady. We charge no upfront fees, and you will owe us nothing, ever, until and unless we win your case.