The Appellate Court of Connecticut, last month, weighed in on the question of burden shifting as it applies to the “ongoing storm doctrine” (limiting liability to landowners as to potential hazards caused and injuries sustained therefrom) when plaintiff made an appeal as to the lower court’s decision to grant summary judgment to defendants. Belevich v. Renaissance I, LLC, 207 Conn. App. 119 (2021)
In this matter, plaintiff, Robert Belevich and Yale University sought damages that were the result of an alleged trip and fall from untreated ice on the premises. The lower court granted summary judgment to defendants, pursuant to the “ongoing storm doctrine.” On appeal, the plaintiffs claimed that the lower court improperly granted summary judgment in favor of the defendants on the basis of the ongoing storm doctrine because (1) the defendants did not establish the absence of a genuine issue of material fact as to the applicability of the doctrine, and (2) the court improperly, albeit implicitly, shifted the burden to the plaintiffs to negate the applicability of the doctrine, contending that the defendants should have been required to demonstrate that the ongoing storm produced the black ice on which the plaintiff allegedly fell. Id.
Plaintiff’s deposition unequivocally stated that it was snowing when he arrived at the premises and that it continued snowing throughout the day, including at the time of his alleged fall. Further, plaintiff testified that there were several inches of snow on the ground and that a snowplow was contemporaneously working to clear the premises. Defendants used plaintiff’s testimony to bolster their motion for summary judgment.
In its analysis the Court, sought guidance from its sister, the State of New York, as the issue had been well litigated as to burden-shifting. According to this approach, the New York courts found that once a defendant proved a storm in progress, the plaintiff is required “to raise a triable issue of fact as to whether the accident was caused by a slippery condition at the location where the plaintiff fell that existed prior to the storm, as opposed to precipitation from the storm in progress, and that the defendant had actual or constructive notice of the pre-existing condition…” See Meyers v. Big Six Towers, Inc., 85 App. Div. 3d 877, 925 N.Y.S.2d 607 (2011). The Court was persuaded by this reasoning and expressly adopted it as a matter of Connecticut Common law.
Further, according to the Court, even evidence that there was ice in the general vicinity of the accident prior to the storm is insufficient to raise a triable issue of fact as to whether the defendant had actual or constructive notice of the condition of the specific area where the plaintiff fell. See Belevich v. Renaissance I, LLC, 207 Conn. App. 119 (2021)(internal citations omitted).
In interpreting the Court’s ruling, once a defendant meets their burden of proving there was an ongoing storm at the time of injury whether with climatological evidence or as in this case, the plaintiff’s own testimony, the burden is shifted. The plaintiff then must prove that the hazard or condition pre-existed the storm and that the defendant had actual or constructive notice of same. This ruling therefore sets forth how Connecticut’s courts will procedurally determine the applicability of summary judgment in cases where the Ongoing Storm Doctrine is at issue.