Obviously, ice of whatever appearance is merely frozen water. However, under the appellate precedent in New York, ice is certainly not all the same when it comes to premises liability. Counsel pursuing prosecution or defense of a slip-and-fall case is well advised to pay careful attention to the nuances of color, transparency and overall appearance of an ice condition. The manner in which ice is described can make the difference between a case that is dismissed and one that survives to be heard by a jury.
Elements of Proof
The courts of New York have defined “black ice” as a term used to characterize ice that “is by its very nature, difficult to see” or recognize as ice.1 As in all slip and fall accidents, the elements of proof in such an allegedly dangerous ice condition case include the presence of a duty, the existence of a premises defect, and notice of the condition. Likewise, a property owner or party in possession or control of premises will only be held liable based on the presence of the black or transparent ice condition “if it created the dangerous condition or had actual or constructive notice of the condition.”2 Where there is no evidence that defendants had actual notice or created the allegedly dangerous condition, the plaintiff is required to produce evidence that “it was visible and apparent, and had existed for a sufficient length of time before the accident for the defendants to discover and remedy it.”3
A Plaintiff’s Trap
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