Black ice on New York City plaza causes hazard for pedestrian

Proving that a person or entity controlling or managing property is aware of any dangerous conditions in and around their building can be a difficult task in New York.

In the recent case of Tompa v. 767 Fifth Partners, LLC, a pedestrian was injured while walking through the plaza in front of the old GM building at 767 Fifth Avenue when she slipped on a thin sheet of ice spread over a large area near a fountain. The building managers claimed they had no notice of the icy condition of the plaza, claiming their employees routinely inspected the area where the pedestrian fell, but did not see any ice.

Expert on fluid dynamics required

The New York Supreme Court did not think the pedestrian had proven her case that the defendant building owners had caused the icy condition, or that the ice was an obvious condition that a routine inspection of the area would discover. Her theory of high winds causing fountain overspray as a "recurrent condition" was discounted, and the court said expert testimony in fluid dynamics (windage) would be required, since it was beyond the knowledge of the average juror.

The pedestrian alleged that the water on the plaza must have come from the fountains, since there was no other water source around, and the fountains were "full." The court put the entire onus on her to prove that the weather conditions that morning were sufficient to cause the fountains to blow water on the plaza where it would freeze, and that the defendant should have known this and taken preventative action. Since the injured pedestrian only "surmised" and "speculated" that the defendant knew of the icy condition, there was not enough evidence to side with her.

Everyone knows water freezes in the cold

One of the judges in the Supreme Court panel disagreed with his colleagues that expert testimony was required for the pedestrian to show facts for a trial. He pointed out that the building manager testified that he had seen the fountain spray water over the plaza on warm days, and had seen ice on the plaza in winter, and presented no evidence that the fountains were turned off on the day of the accident. The knowledge that in certain conditions caused ice to form was enough to establish constructive notice of the icy conditions, in the judge's opinion; there was no need for an expert to explain to the jury how wind sprays water onto the plaza, or that water freezes in the cold.

The fact that the pedestrian slipped on ice near the fountain while the other areas of the plaza were dry, along with climatological data for New York that February, was enough circumstantial evidence that the pedestrian slipped on ice created from the fountain's spray. The judge said the defendant did not sufficiently establish that the water on the plaza came from somewhere other than the fountain, and the pedestrian was not required to prove with absolute certainty where the water came from.

The dissenting judge in this case lays out a roadmap for the next time a pedestrian is injured in this situation, including how the theory of recovery should be presented. Proof problems are common in injury cases, and it takes an experienced lawyer to frame the issues and bring in the proper testimony to protect people injured as a result of negligence.