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Case Study

“Storm in Progress” Summary Judgment Clears Major Restaurant Franchisee in Premises Liability Claim

June 25, 2018

Goldberg Segalla partner Julie P. Apter won summary judgment in Erie County Supreme Court on behalf of a major restaurant franchisee facing a serious premises liability claim. In this case, the plaintiff was injured by a municipal bus when she was struck by a protruding panel as it passed her, causing severe facial scarring. The plaintiff claimed she was standing close enough to the roadway to be struck by the panel because of an accumulation of snow on a sidewalk in proximity to our client’s business.

The litigation raised questions of ownership and responsibility for the sidewalk, pitting our client against a neighboring gas station and car wash. Pursuing a defense along these lines, however, would have increased the client’s legal spending in trial preparation, and could ultimately have led to a plaintiff’s verdict. Instead, Julie shrewdly argued that the franchisee was entitled to summary judgment under the “storm in progress” doctrine, which states that the owner of a sidewalk (regardless, in this case, of whether it was our client or the neighbor) does not have a duty to remove the snow until a reasonable time has passed following the cessation of the storm. Julie obtained a helpful opinion from a local meteorologist and reduced this to a thorough, compelling, and uncontroverted affidavit, resulting in a summary judgment for our client dismissing the complaint and all cross claims.