There are several common defenses used by property owners and insurance companies to try and shield themselves from liability when someone is injured on their property due to their negligence. Understanding these defenses is crucial for building a strong case and ensuring you receive the compensation you deserve for your injuries.
Injured On Someone Else's Property In New York?
CONTACT USOur Recent Case Results
Settlement
Jury Verdict
Settlement
Settlement
Property owners often use sophisticated legal strategies to shift blame, minimize damages, or escape liability entirely. However, each defense has limitations and exceptions that experienced premises liability attorneys know how to challenge.
If you were injured on someone else’s property because of their negligence or failure to maintain safety, contact the Porter Law Group for a free, no-obligation consultation, and learn more about your legal options. Below is a list of the most common defenses in New York premises liability cases. If you have been met with any of these, reach out to us promptly and let us help you mount a stronger case.
The Storm in Progress Doctrine: When Weather Becomes a Shield
How Property Owners Use This Defense
The Storm in Progress Doctrine is one of the most powerful defenses property owners use in slip and fall cases involving snow and ice. It argues that property owners shouldn't be held liable for accidents that occur during active precipitation since it's nearly impossible to maintain completely safe conditions while snow, ice, or rain is falling.
The Legal Foundation: This defense was solidified by the New York Court of Appeals in the landmark case Solazzo v. New York City Transit Authority (2005). The court ruled that defendants can't be expected to "constantly maintain dry station floors" during storms because moisture accumulation from tracked-in precipitation is unavoidable during active weather events.
How Property Owners Apply It:
- They present meteorological evidence showing precipitation at the time of your accident
- They argue their duty of care was "suspended" during the storm
- They claim that any hazardous condition was caused solely by the ongoing weather, not their negligence
- They extend this protection for a "reasonable time" after precipitation ends
Geographic Variations That Affect Your Case
Upstate vs. Downstate Differences: One critical factor many clients don't realize is that this defense works differently depending on where your accident occurred. Upstate courts (Third and Fourth Departments) are generally more receptive to Storm in Progress defenses and more likely to grant summary judgment based on meteorological evidence alone.
Downstate courts (First and Second Departments), particularly in New York City, apply stricter scrutiny to these defenses and require more rigorous analysis of the "reasonable time thereafter" component.
How We Counter the Storm in Progress Defense
1. Challenging the "Ongoing Storm" Claim: We thoroughly investigate weather conditions using multiple sources:
- Official National Weather Service data
- Local weather station records
- Witness testimony about actual conditions
- Time-stamped photographs or video evidence
- Analysis of precipitation intensity and duration
2. The Post-Storm Timeline Attack: In New York City, we have a powerful tool: Administrative Code Section 16-123, which requires property owners to clear snow and ice within four hours after precipitation stops (excluding 9 p.m. to 7 a.m.). If we can prove the storm ended and the required time passed, the defense collapses.
Example: If snow stopped at 2 p.m. and your accident occurred at 8 p.m., the property owner had 6 hours to clear the sidewalk—well beyond the 4-hour requirement.
3. Pre-Existing Condition Arguments: The Storm in Progress defense only protects against conditions caused by the current storm. We investigate whether:
- The hazardous condition existed before the storm
- Poor drainage or structural defects contributed to ice formation
- The property owner's negligent maintenance created enhanced dangers
- Previous storms created conditions that weren't properly addressed
4. Mixed Precipitation Challenges: While the Court of Appeals ruled in Sherman v. New York State Thruway Authority that changing precipitation types don't automatically end storm protection, we can argue that:
- Warming conditions that change snow to rain should restart maintenance duties
- The property owner should have anticipated and prepared for changing conditions
- Different types of precipitation require different response strategies
The Open and Obvious Doctrine: When Visibility Doesn't Equal Safety
How This Defense Works Against You
Property owners frequently argue that if a dangerous condition was "open and obvious," they shouldn't be held liable because you should have seen and avoided it. This defense attempts to shift responsibility from their negligent maintenance to your alleged failure to pay attention.
Typical Examples:
- Visible cracks in sidewalks or parking lots
- Obvious puddles or wet areas
- Clearly damaged stairs or handrails
- Well-lit elevation changes or steps
The Evolution of This Defense in New York
The Traditional Approach: Historically, if a hazard was deemed "open and obvious," property owners could escape liability entirely.
The Modern Reality: New York courts have significantly limited this defense. The current approach focuses on whether a condition is "inherently dangerous" despite being visible.
Key Case Example: In Hutchinson v. Sheridan Hill House Corp. (2015), a ¼-inch sidewalk defect was deemed "trivial" because it was well-lit and unobstructed. However, the court emphasized that even obvious hazards may require remediation if they pose unreasonable risks.
How We Attack the Open and Obvious Defense
1. The "Inherently Dangerous" Standard: We demonstrate that even obvious conditions can be unreasonably dangerous:
- A visible crack that's deeper or wider than it appears
- Conditions that force people to encounter the hazard to conduct normal business
- Hazards in high-traffic areas where people can't reasonably avoid them
- Obvious conditions that pose greater dangers than their appearance suggests
2. Comparative Negligence vs. Complete Bar: Even when conditions are somewhat obvious, New York's comparative negligence system means this doesn't completely bar your recovery—it just reduces it proportionally. We argue that:
- The property owner's negligence was the primary cause of your injury
- Your momentary inattention was minimal compared to their failure to maintain safe conditions
- The design or lighting made the hazard more dangerous than it appeared
3. Contextual Factors: We examine circumstances that made even "obvious" hazards unreasonably dangerous:
- Poor lighting that obscured the true nature of the defect
- Weather conditions that made navigation difficult
- Crowds or distractions that impaired your ability to observe
- Emergency situations requiring quick movement
Assumption of Risk: When Property Owners Claim You Accepted the Danger
Understanding This Defense Strategy
Property owners argue that you voluntarily assumed the risk of injury by choosing to encounter a known danger. This defense comes in two forms:
Express Assumption of Risk:
- Written waivers or disclaimers
- Lease agreements with liability limitations
- Membership contracts with risk acknowledgments
Implied Assumption of Risk:
- Repeatedly using a known dangerous area
- Proceeding despite obvious warnings
- Voluntarily engaging in inherently risky activities
Why This Defense Often Fails in New York
Public Policy Limitations: New York courts strictly limit assumption of risk defenses, especially for:
- Gross negligence or reckless conduct by property owners
- Violations of statutory duties (building codes, safety regulations)
- Essential services where people have no reasonable alternative
Housing Law Protections: In residential cases, Housing Maintenance Code violations typically void assumption of risk defenses entirely.
Case Example: In Valentine v. City of New York (2020), a mold-infested apartment rendered a lease waiver unenforceable due to the landlord's deliberate inaction in addressing known health hazards.
How We Challenge Assumption of Risk Claims
1. Proving Lack of True Choice: We demonstrate that you didn't have reasonable alternatives:
- The hazardous area was the only way to access necessary services
- Emergency situations required you to use the dangerous route
- The property owner created conditions forcing exposure to danger
2. Exceeding the Scope of Assumed Risk: Even valid waivers have limits:
- They don't cover gross negligence or intentional misconduct
- They can't waive statutory duties or building code violations
- They don't apply to hazards beyond those reasonably contemplated
3. Invalid or Unenforceable Waivers: We challenge assumption of risk documents by proving:
- Inadequate disclosure of specific risks
- Unconscionable terms or unequal bargaining power
- Violations of public policy
- Ambiguous language that doesn't clearly cover the actual injury
The Trivial Defect Defense: Minimizing Dangerous Conditions
How Property Owners Downplay Serious Hazards
This defense attempts to characterize dangerous conditions as minor imperfections that shouldn't warrant liability. Property owners argue that small cracks, minor elevation changes, or slight irregularities are "trivial defects" that reasonable people should navigate without difficulty.
Common Measurements Used:
- Defects under 1 inch in height or depth
- Small cracks or chips in walking surfaces
- Minor irregularities in pavement or flooring
Why Size Isn't Everything
Contextual Analysis Required: New York courts don't apply rigid size thresholds. Instead, they examine:
- Location and traffic patterns: Defects in high-traffic areas are more dangerous
- Lighting conditions: Poor visibility makes small defects more hazardous
- Weather conditions: Rain or ice can make minor defects much more dangerous
- Surrounding circumstances: Other factors that increase the danger
Recent Case Example: In Zelichenko v. 301 Oriental Boulevard LLC (2023), a ½-inch stair nosing chip warranted liability because it disrupted normal foot traffic flow, despite being relatively small.
Our Strategy Against Trivial Defect Claims
1. Demonstrating Enhanced Danger: We prove that seemingly small defects created unreasonable risks:
- Expert testimony on biomechanics and trip hazards
- Analysis of lighting conditions and visibility
- Documentation of traffic patterns and usage
- Evidence of similar accidents at the same location
2. Cumulative Effect Arguments: We show how multiple "trivial" conditions combined to create serious hazards:
- Several small defects in close proximity
- Poor maintenance creating multiple trip points
- Interaction between defects and environmental conditions
3. Industry Standards and Regulations: We cite applicable codes and standards that require:
- Specific tolerances for walking surfaces
- Regular maintenance and inspection requirements
- Prompt repair of any defects that could cause injuries
Lack of Notice: The "We Didn't Know" Defense
Understanding the Notice Requirement
Property owners frequently claim they can't be held liable because they didn't know about the dangerous condition. This defense requires us to prove either:
Actual Notice:
- Written complaints from visitors or tenants
- Employee reports of the hazard
- Direct observation by management
- Municipal violation notices
Constructive Notice:
- The condition existed long enough that reasonable inspections should have discovered it
- The hazard was obvious and in a regularly inspected area
- Similar conditions had been reported previously
How We Establish Notice
1. Investigation and Discovery: We thoroughly investigate the property owner's knowledge:
- Email communications and internal reports
- Maintenance logs and inspection records
- Previous accident reports at the same location
- Employee testimony about known problems
2. Constructive Notice Through Duration: We establish how long the condition existed:
- Witness testimony about when they first observed the hazard
- Weather records and conditions that contributed to the problem
- Photographic evidence showing deterioration over time
- Expert analysis of how the condition developed
3. Pattern Evidence: We demonstrate that similar problems should have put the owner on notice:
- History of similar accidents or complaints
- Recurring maintenance issues in the same area
- Industry knowledge about common problems
- Violation of inspection protocols
Comparative Negligence: Sharing the Blame
How This Defense Reduces Your Recovery
Under New York's pure comparative negligence system (CPLR §1411), property owners argue that you contributed to your own injury. Even if they're found liable, your recovery is reduced by your percentage of fault.
Common Arguments:
- You weren't paying attention to where you were walking
- You were using a cell phone or otherwise distracted
- You ignored posted warnings or obvious hazards
- You were in an area where you weren't supposed to be
- You were under the influence of alcohol or drugs
Our Approach to Minimizing Your Fault
1. Emphasizing Property Owner's Primary Responsibility: We focus the case on the property owner's failures:
- Failure to maintain safe conditions
- Violation of building codes or safety standards
- Creating or allowing dangerous conditions to persist
- Inadequate warnings or security measures
2. Challenging Fault Allegations: We counter claims about your conduct:
- Demonstrating that your behavior was reasonable under the circumstances
- Showing that the hazard was unavoidable or unexpected
- Proving that the property owner's negligence was the primary cause
- Establishing that any inattention was momentary and understandable
3. Expert Testimony: We use expert witnesses to explain:
- How the dangerous condition would have caused injury regardless of your conduct
- Why your behavior was reasonable under the circumstances
- How the property owner's negligence created the primary danger
How We Protect Your Rights Against These Defenses
The lawyers at the Porter Law Group have decades of experience holding negligent property owners accountable, and securing substantial compensation for injured victims. When we take your case, you can be assured that we will do our utmost to make sure that you do not walk away with less than you deserve. We conduct meticulous evidence gathering, and work with various experts in meteorology, accident reconstruction, and medicine, to ensure that all aspects of your case are covered.
Not all cases need to go to trial. We can strongly advocate for the best possible settlement on your behalf, leveraging the strongest arguments of your case, and countering the common defenses raised by negligent property owners and their insurance representatives. But if your case goes to court, you can be assured that our experienced trial lawyers will not back down. You and your family deserve justice and compensation for your injuries. And we at the Porter Law Group are here to help you get that.
Were You Injured Because Of A Property Owner's Negligence?
Reach out to our experienced team for a free consultation.
Why Choose the Porter Law Group
The lawyers at the Porter Law Group have decades of experience representing individuals and families whose lives have been devastated by catastrophic injuries. We have obtained some of the largest settlements and verdicts in courts throughout the State of New York. We are a state-wide firm that handles cases with a hometown feel.
Our clients come to us looking for guidance and answers. With seasoned trial lawyers, the Porter Law Group has the resources necessary to help you navigate the most complex cases, against goliath insurance companies that will stop at nothing to prevent you from receiving the compensation you deserve.
You only get one chance to hire the best lawyer for you and your family. Hire the lawyers most recommended by former clients and local attorneys, and the firm that obtains superior results.
When you or a loved one’s life has been devastated by a serious personal injury in New York, don’t hire a lawyer without calling the Porter Law Group to learn why so many of our clients are thankful they trusted us with their case in their time of need.
Take Action to Protect Your Rights
If you've been injured on someone else's property, don't let these potential defenses discourage you from seeking compensation. The key is acting quickly to preserve evidence and build a strong case before these defenses can take hold.
Contact the Porter Law Group today at 833-PORTER9 or email info@porterlawteam.com for a free consultation about your premises liability case. We'll evaluate the specific defenses that may arise in your case and develop a strategic plan to overcome them.
We work on a contingency fee basis, meaning you pay no attorney fees unless we successfully recover compensation for you. Don't let property owners use sophisticated legal defenses to avoid responsibility for their negligence.
Your injuries are real, your damages are significant, and your rights deserve protection. Let our experienced premises liability attorneys fight these defenses and secure the compensation you deserve for your injuries and losses.
Remember: property owners may have defenses, but we have the knowledge, experience, and resources to overcome them. Contact us today to learn how we can protect your rights and maximize your recovery in your premises liability case.
