Prior Written Notice

Q: In the village parking lot, on the weekend, I slipped and fell.  On the weekend, the village did not employ a work crew.  The temperature had been rising above freezing and then dropping.  I believe that I fell on a patch of black ice that was caused by the melting and refreezing of snow that the village had plowed against a row of meters, adjacent to the parking spaces.

The village says that it is shielded from liability because the village had never received ‘prior written notice’.  Supposedly, pursuant to some law, the village cannot be liable unless prior written notice of the existence of the snow or ice, relating to this particular place, had been given to the village clerk.

A: Looking at public policy rationale for ‘prior written notice’ statutes, one realizes that a statute designed for pothole cases should not be extended to cases involving negligent snow removal.  A prior written notice statute is designed to release the municipality from liability only when it has had no reasonable opportunity to remedy the problem.  The statute applies only to a defective condition about which the village cannot be expected to know, absent some sort of positive actual notice (unless the village affirmatively created the hazardous condition).

These statutes do not exempt a municipality from liability where negligence in the maintenance of a parking facility triggers the foreseeable development of black ice as soon as the temperature shifts.  Unlike a pothole, a pile of plowed snow presents the foreseeable (indeed, known) risk of melting and refreezing.  A municipality needs no additional notice: why, it has local temperature data.

Accordingly, a jury is free to decide whether the village breached its duty of care to maintain the parking lot in a reasonably safe condition – e.g. by failing to salt the lot on weekends, despite the fact that it remained open.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

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