Merges et al v. Aramark Corporation et al

Filing 52

ORDER denying 32 Motion for Summary Judgment. Signed by Hon. Jonathan W. Feldman on 3/30/2012. (RJO)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DAVID R. MERGES and
JULIE L. MERGES,
DECISION AND ORDER
08-CV-6250

Plaintiff(s),
v.
ARAMARK CORPORATION, ARAMARK
MANAGEMENT SERVICES LIMITED
PARTNERSHIP and ARAMARK
INTERMEDIATE HOLDCO CORPORATION,
Defendant(s).

Preliminary Statement
On January 9, 2007, plaintiff David Merges slipped and fell on
a snow covered and icy portion of Churchville-Chile intermediate
school’s walkway.
permanent

The fall caused plaintiff to suffer serious and

injuries.

On

May

13, 2008,

Merges

commenced

this

personal injury action in New York State Supreme Court, Ontario
County. Based on diversity jurisdiction, the action was removed to
this Court on June 9, 2008.

See Docket # 1.

Currently pending

before the Court is defendants’ motion for summary judgment.1
(Docket # 32).
were

heard

On May 5, 2011, a hearing was held and arguments

from

the

parties.

For

the

reasons

that

follow,

defendants’ motion for summary judgment is denied.
Relevant Facts
Plaintiff

1

David

Merges

(“Merges”

or

plaintiff)

was

the

This dispositive motion is being heard by the undersigned by
consent of the parties pursuant to 28 U.S.C. Section 636(c). See
Docket # 51.

Director of Pupil Services at the Churchville-Chili Central School
District (“CCSD”).

His office was on the grounds at the CCSD

intermediate school located at 139 Fairbanks Road, Churchville, New
York.

On January 9, 2007 at approximately 9:00 a.m., a student at

the school pulled the building’s fire alarm and, as a result, the
building’s occupants – including Merges – were forced to evacuate
outside to the exterior of the building pursuant to the school’s
established fire alarm evacuation process.

See Affidavit of David

R. Merges (hereinafter “Merges Aff.”) attached as Exhibit “G” to
Docket # 39 at ¶ 3.

After arriving outside the building, Merges

met up with fellow CCSD employees and walked to the front of the
building.

Merges observed that snow and ice had been cleared from

certain areas of the school’s grounds; namely, the area directly in
front of the main entrance to the school.

Id. at ¶ 4.

Merges also

noticed that the sidewalks and walkways in front of the building
had been treated with an ice melting substance such as salt.
see also July

7,

2009

Deposition

Transcript

of

David

Id.;

Merges

(hereinafter “Merges Dep.”) attached as Exhibit “I” to Affidavit of
Terence P. O’Connor annexed to Docket # 32 at p. 66 (“It [salt] was
scattered all over the front entrance on the sidewalk.”).
While assisting students with evacuating in the front of the
school building, Merges learned that a fellow teacher, Hillary
Grana, had slipped and fallen near the back of the school at a
location referred to in the record as the “south entrance.”

2

The

Principle of the intermediate school, John Bellini, asked Merges if
he would find and assist Ms. Grana, and Merges agreed.

See

Affidavit of David R. Merges (hereinafter “Merges Aff.”) attached
as Exhibit “G” to Affidavit of William P. Smith, Jr., Esq. (Docket
# 39) at ¶ 5.

In order to get to the back of the school where Ms.

Grana was located, it was necessary for Merges to walk around the
side of the building which had “an established path.”

Id. at ¶ 6.

According to Merges, no snow removal efforts had been taken to
clear snow and ice from the path or to treat the path with an ice
melter such as salt and, as a result, Merges walked through snow
and over ice to get to the south entrance.

As Merges arrived at

the back exit doors of the building he noticed that, unlike the
front entrance, the walkways surrounding the south entrance had not
been treated with an ice-melting substance.

Merges testified:

There was no salt on it. It wasn’t – when I
went out of the front of the building earlier,
there was no – you could tell that [it] had
attention to it.
There was salt down, it
looked like somebody had paid attention to
that as far as making it safe to walk on and
to be – you know, have kids go out on. Where
I was walking and falling or fell, that looked
like there was no attention given to it.
Merges Dep. at p. 83; see also Merges Aff. at ¶ 7 (“Unlike the
walkways in the front of the Intermediate School building, the
walkways adjacent to the back of the Intermediate School building
had not been treated by the Defendants with a substance to melt the
ice on the path.”).
3

As Merges turned the corner he fell hard on the walkway
hitting his head and losing consciousness.

Merges Dep. at p. 82.

Merges maintains that it was not snowing at the time he fell, but
there was “a buildup of ice” on the walkway.
17.

Merges Aff. at ¶¶ 11,

Merges suffered severe and permanent injuries as a result of

the fall.
At

Id. at ¶¶ 18-19.
the

time

of

Merges’s

fall,

a

“Management

Services

Agreement” existed between defendant Aramark and the CCSD.
Exhibit “D” attached to Docket # 32.
Aramark

“agreed

to

perform

See

Pursuant to the contract,

Custodial,

Plan

Operations

and

Maintenance, and Grounds Management Services on [CCSD’s] premises.”
See id.

In return, CCSD agreed to pay Aramark $200,340.00 per year

for five years (total payments exceeding one million dollars) in
exchange for Aramark providing managerial services for custodial,
plant operations, maintenance and grounds operations.

Id.

The parties dispute the parameters of the contract and,
specifically,

whether

Aramark

agreed

to

assume

control

responsibility of CCSD’s grounds maintenance operations.

and

Aramark

asserts that the contract it had with the School District was only
“consultative” and summary judgment should be granted in its favor
because “the proof demonstrates that ARAMARK never undertook any
steps to remove snow and/or salt on the premises.
district performed those functions.”

Rather, the

See Affidavit of Terence P.

O’Connor, Esq. (hereinafter “O’Connor Aff.”) annexed to Docket # 32

4

at ¶¶ 11, 14.

According to Aramark, School District employees did

the snow removal work and since the School District “retained
significant control over” its land, premises and facilities, it
“retained its common law duty as landowner to maintain the premises
in a safe condition for Merges and others.”

Id. at ¶ 13.

Aramark

contends that pursuant to its contract with the School District, it
was

“to

lend

management.

its

expertise

to

the

district

as

to

facility

ARAMARK was never contracted to, nor did it ever

undertake the snow and ice removal processes for the district.”
Id. at ¶ 14.

Aramark asserts that its agreement with the School

District only “called for ARAMARK’s general oversight and expertise
in facility management,” and did not call for Aramark to be
responsible for the snow and ice removal processes at the School
District’s facilities.

Id. at ¶ 18.

Aramark asserts that CCSD

retained significant control over the premises, and Aramark did not
assume responsibility for snow and ice removal and “owed no duty to
Merges.”

Id. at ¶ 28.

Plaintiffs, on the other hand, assert that Aramark’s contract
with CCSD confirms that defendants “completely and entirely assumed
exclusive

control

over

the

management

and

operation

of

the

District’s buildings, facilities, and grounds . . . including
ground maintenance and inspections and the treatment and removal of
snow, ice, and slippery conditions.”

See Affidavit of William P.

Smith, Jr., Esq. (hereinafter “Smith Aff.”) (Docket # 39) at ¶ 11.

5

Plaintiffs contend that pursuant to the terms of the contract,
“Defendants agreed to establish a snow removal plan, which involved
removing snow and ice from entrances, walks, roads, and parking
lots on the District property, which they did not do.”
15.

Id. at ¶

Plaintiffs maintain that the contract placed defendants “in

complete and exclusive control of grounds maintenance for the
safety of the District’s employees, including Mr. Merges.”
¶ 16.

Id. at

Plaintiffs assert that it was Phillip Behe’s, Aramark’s on

site Manager of Facilities, “duty to maintain safe sidewalks at the
District’s Premises,” as he “was in a position to exclusively
create and implement the entire snow and ice removal process on the
District’s premises” and he “unilaterally trained and supervised
the service employees, such as Kenneth Tanner, with respect to
grounds maintenance.”

Id. at ¶¶ 21-22.

Plaintiffs argue that the

School District “did not retain any responsibility or right to
direct, control, or act to remove ice [and] snow at the premises in
light of the Agreement” and, as a result, “Defendants owed Mr.
Merges

a

duty

of

care”

because

“it

entirely

displaced

the

District[’]s duty to maintain the premises in a safe manner.”

Id.

at ¶¶ 23-24. Plaintiffs contend that any School District personnel
that were involved in grounds maintenance were operating under the
direction and control of Aramark’s Philip Behe.

Id. at ¶ 22.

Assuming the Court finds that defendants owed plaintiff a duty
of care under the contract, defendants alternatively argue they are

6

entitled

to

summary

judgment

because

there

was

a

“storm

in

progress” and they did not have actual or constructive notice of
the dangerous condition. Defendants argue that climatological data
analyzed

by

Howard

Altschule,

a

certified

meteorologist,

demonstrates that on January 9, 2007 between 9:10 a.m. and 9:20
a.m. (the approximate time that Merges fell) “light snow was
falling over 139 Fairbanks Road, Churchville, New York” and “[t]he
snow accumulated because of the snow’s steady and consistent
intensity, and because the ground was colder as a result of the
below freezing temperatures that occurred that morning.”
Affidavit

of

Howard

Altschule

(Docket # 33) at ¶ 6.
present on the ground

(hereinafter

“Altschule

See
Aff.”)

Altschule found that “[a]ny snow that was
at the time of the accident had only

accumulated since 8:23 a.m., which was a very short time prior to
the accident.”

Id.

Altschule concluded “with a reasonable degree

of meteorological certainty that a new storm was in progress at the
time of the January 9, 2007 accident at issue.”

Id. at ¶ 10.

In response, plaintiffs argue that there was no storm in
progress and, in any event, defendants had notice of the slippery
conditions

of

the

walkway

where

Merges

fell.

According

to

plaintiffs, the fact that defendants employed snow and ice removal
efforts and treated the sidewalks at the front entrance of the
intermediate school but failed to provide similar efforts on the
pathways on the sides of the buildings or at the building’s south

7

entrance, raises triable issues of fact as to whether plaintiff’s
fall was the result of any “storm in progress.”
Discussion
Summary Judgment Standard: Summary judgment shall only be
granted if the record demonstrates “that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”

Fed. R. Civ. P. 56(a).

A genuine

issue exists "if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party."
Lobby, Inc., 477 U.S. 242, 248 (1986).

Anderson v. Liberty

In reviewing the evidence

presented, it is important to remember that all inferences and
ambiguities must be resolved in favor of the party against whom
summary judgment is sought. Thompson v. Gjivoje, 896 F.2d 716, 720
(2d Cir. 1990); Donahue v. Windsor Locks Bd. of Fire Comm’rs, 834
F.2d 54, 57 (2d Cir. 1987).

The burden of showing the absence of

any issue of material fact rests with the moving party.

Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Breach of a Duty of Care: The parties do not dispute that New
York substantive law is controlling in this diversity action.

In

order to establish negligence under New York law, the plaintiff
must show by a preponderance of the evidence “(1) the existence of
a duty on defendant's part as to plaintiff; (2) a breach of this
duty; and (3) injury to the plaintiff as a result thereof.”

Akins

v. Glens Falls City Sch. Dist., 53 N.Y.2d 325, 333 (N.Y. 1981).
8

“Because a finding of negligence must be based on the breach of a
duty, a threshold question in tort cases is whether the alleged
tortfeasor owed a duty of care to the injured party.”

Espinal v.

Melville Snow Contractors, Inc., 98 N.Y.2d 136, 138 (N.Y. 2002);
see also Palka v. Servicemaster Mgmt. Servs. Corp., 83 N.Y.2d 579,
584 (N.Y. 1994)(“[A] duty of reasonable care owed by a tortfeasor
to an injured party is elemental to any recovery in negligence.”).
The existence of a duty of care is usually a question of law for
the Court to determine.

Palka, 83 N.Y.2d at 585.

The first issue before the Court is whether Aramark owed
plaintiff David Merges a duty of care, since his personal injuries
allegedly

arose

from

Aramark’s

alleged

negligent

or

failed

performance of its contractual duties owed to the School District.
In many cases, the existence of a duty running from the defendant
to the plaintiff is not in dispute.

Such is not the case here.

Under New York law a contracting party like Aramark generally owes
no duty of care to a non-contracting party like David Merges.
Church v. Callanan Indus., Inc., 99 N.Y.2d 104, 111 (2002); Espinal
v Melville Snow Contractors, Inc., 98 N.Y.2d at 139-41.

However,

“New York recognizes three exceptions to this otherwise broad
principle, and will impose a duty and thus potential tort liability
arising out of the performance of contractual obligations when one
of three factors is present.”

Doona v. Onesource Holdings, Inc.,

680 F. Supp. 2d 394, 402 (E.D.N.Y. 2010).

9

The three exceptions

are:
(1) where the contracting party, in failing to exercise
reasonable care in the performance of his duties,
launche[s] a force or instrument of harm; (2) where the
plaintiff
detrimentally
relies
on
the
continued
performance of the contracting party's duties and (3)
where the contracting party has entirely displaced the
other party's duty to maintain the premises safely.
Id. (quoting Espinal, 98 N.Y.2d at 140).

Under the particular

facts presented in the record here, I conclude that Merges meets
the second and third Espinal exceptions and accordingly find that
Aramark did owe a duty of care to Merges on January 9, 2007.
Although the two exceptions are factually related, I turn
first to Aramark’s argument that the contract between it and CCSD
did not entirely displace the School District’s duty to maintain
the premises safely.

In sum, Aramark’s argues that CCSD agreed to

pay Aramark over a million dollars over five years for nothing more
than “general oversight and expertise in facility management” (see
O’Connor Aff. at ¶ 18) and hence Aramark can not be held liable to
third parties

like

plaintiff

for

any negligence

it

may have

committed in the snow and ice removal processes at the School
District’s facilities.
The Court does not find Aramak’s argument persuasive.

A

review of the contract as a whole supports a finding that the
intent

of

the

contract

was

to

privatize

the

management

and

responsibility for maintenance of the District’s facilities during
the contract term.

In other words, a fair reading of the contract

10

confirms the parties intention to substitute Aramark for the
District as being the entity responsible for the overall management
and safety of the School District’s grounds and facilities.
contract

was

comprehensive

and

gave

Aramark

The

exclusive

responsibility to control and manage the day to day facility
maintenance requirements of the School District’s buildings and
grounds.

Pursuant to the terms of the contract Aramark was

required to provide and pay for an “Operations Team” Manager to
serve as “management of the custodial and maintenance departments
of the [School] District,” including the location where Merges
fell.

See Exhibit “D” attached to Smith Aff. at pp. 3, 10.

contract

required

Aramark

to

“design

and

implement”

The

standard

operating procedures with “a clean and safe environment” being a
“primary objective.”

Id. at p. 11.

Aramark was contractually

required to advise and implement casualty prevention and control
procedures.

Aramark

was

contractually

required

to

perform

“custodial duties,” including setting the schedules for custodial,
maintenance and grounds employees and police outside grounds daily.
Id. at p. 13.

Similarly, Aramark was contracted to “develop,

implement, and manage an effective program of grounds maintenance
for the District,” including a snow removal plan that included
requirements that “[s]now and ice will be cleared from entrances
[and] walks” on School District property, including the location
where Merges fell.

Id. at pp. 18, 21.

11

The contract also required

Aramark to conduct training of District employees with “an emphasis
on safety” for those employees with maintenance responsibilities.
Id. at p. 21.
To be sure, as Aramark points out, the contract required
Aramark to consult with the School District officials before
implementing many of its facility management operations.

But once

the contract term began, the School District was relieved of its
day to day responsibilities for supervising and controlling the
custodial and maintenance departments of the District.

That the

contract also required Aramark and CCSD to consult and cooperate in
implementing the maintenance procedures installed by Aramark does
not immunize Aramark from a finding that the intent and effect of
the

contract

was

to

displace

the

School

District’s

in-house

supervision of grounds and facility management and substitute
Aramark as having overall control and responsibility.

See Palka,

83 N.Y. 2d at 588.
Aramark also points to the fact that it was School District
employees who actually performed the snow removal operations for
the District as evidence that it had not entirely displaced the
District’s duty to maintain the premises safely.

Again, however,

this argument misses the mark by minimizing Aramark’s contractual
responsibilities. There can be no doubt that someone was in charge
of and responsible for making sure that School District grounds
were properly and safely maintained. Aramark’s efforts to disclaim

12

contractual responsibility for these functions is untenable.
Indeed, the contract confirms it was Aramark’s responsibility to
make sure these essential duties were properly carried out.

The

fact that the contract permitted Aramark to utilize School District
employees and equipment in carrying out its facility management
responsibilities does not alter the answer to the question of who
was in charge.

Aramark was more than simply a “consultant” to CSSD

facility maintenance operations.

Aramark was paid hundreds of

thousands of dollars each year to be in charge of and responsible
for the day to day custodial and maintenance operations of the
School District.

See Palka, 83 N.Y. 2d at 585-86.

To the extent extrinsic evidence is necessary to assist in
determining whether Aramark agreed to fully assume responsibility
to maintain the premises safely, there is persuasive evidence in
the record that support’s the Court’s finding.

“The parties to an

agreement know best what they meant, and their action under it is
often the strongest evidence of their meaning.”

Restatement

(Second) of Contracts § 202 cmt. g (1981); see Old Colony Trust Co.
v. City of Omaha, 230 U.S. 100, 118 (1913)(“Generally speaking, the
practical interpretation of a contract by the parties to it for any
considerable period of time before it comes to be the subject of
controversy is deemed of great, if not controlling, influence.”).
Particularly revealing in this regard is the deposition testimony
of Kenneth R. Tanner, who has been employed by CCSD as Head

13

Groundsman since 1994. When he was first hired, Tanner reported to
Mike Morris, CCSD’s Superintendent of Buildings and Grounds.
Tanner testified that when Morris retired in 2000, he was replaced
by an outside third party, specifically Servicemaster Corporation.
See March 1, 2010 Deposition Transcript of Kenneth R. Tanner
(hereinafter “Tanner Dep.”) attached as Exhibit “E” to O’Connor
Aff. at p. 12.

Servicemaster placed its own employee at CCSD who

held the title of “Director of Operations and Management.”
testified

that as

Servicemaster.

CCSD’s

Head

Groundsman

he

now

Tanner

reported

to

Tanner testified that Servicemaster’s Director of

Operations and Management (whose name Tanner could not remember)
would “supervise” his work,” “direct” his work, “oversee” his work,
including “snow removal and ice treatment.”

Id. at p. 13.

Sometime later, Servicemaster employee Phillip Behe assumed the
position as Tanner’s supervisor. Tanner testified that he reported
to Behe

and that Behe would “direct” his work, “supervise his

work” and “oversee” his work.

According to Tanner, after Behe was

placed by Servicemaster at CCSD, Servicemaster was “bought out” by
Aramark and Behe became an Aramark employee. Despite the change in
ownership, Tanner stated that the nature of his relationship with
Behe did not change and Behe, as an Aramark employee, continued to
“direct,” “supervise” and “oversee” his work as Head Groundsman for
CCSD.

Id. at pp. 14-15.

Tanner stated it was his understanding

that Aramark was “hired to manage the grounds department, the

14

maintenance department, and the custodial staff.”

Id. at p. 18.

Tanner testified that in his job as Head Groundsman for CCSD, Behe
was his direct supervisor and that he ran through Mr. Behe any
determinations he made with respect to “salt, shovels and plows.”
Id. at p. 111.
jumped.

Id.

Tanner explained that if Behe told him to jump, he
Tanner’s testimony confirms the pervasive control,

supervision and responsibility the contract gave to Behe and
Aramark with respect to the management and safety of the School
District’s grounds, including snow and ice removal processes where
plaintiff fell on January 9, 2007.
Based on much of the same evidence, the Court also finds that
plaintiff detrimentally relied on Aramark’s continued performance
of the contract, including the obligation to keep the sidewalks and
pathways surrounding the school free from ice and snow.

The

obvious consequences of the agreement at issue here were “not
solely a matter between the parties to the contract.”
N.Y.2d at 586.

Palka, 83

Rather, the contractual arrangements between

Aramark and CCSD “plainly affect the safety of all users of the
premises who are entitled to rely on the nonnegligent maintenance
services and repair responsibilities imposed by the contract.” Id.
Here, the record supports a finding that Merges detrimentally
relied on Aramark’s continued performance of its contractual duties
with the School District to maintain the intermediate school’s
grounds, including snow and ice removal.

15

Specifically, plaintiff

David Merges avers that prior to his accident he was aware of the
defendants’ contract with the CCSD and “knew that the Defendants
were contractually obligated to treat and remove snow and ice from
the [intermediate school’s] surrounding parking lots, roadways,
walkways, byways, paths, steps, stairways, and entranceways.”
Merges Aff. at ¶ 15.

See

Merges testified at his deposition that he

had “dealings” with Behe and knew him to be an Aramark employee.
“Pretty much anytime we needed any buildings and grounds or any
maintenance things done in our office we would call Phil. That was
kind of what we were directed to do [by District Superintendent
Anne Marie Spadafora], because Phil kind of had control of that.
We were told to call him.”

Merges Dep. at p. 87.

Specifically as

to what role Behe had in keeping school sidewalks and walkways free
of ice and snow, Merges testified: “My understanding was that Phil
kind of had complete control of the scheduling and the

– you know

– allocation of staff and work crews to all the building and
grounds’ needs.

He would kind of set all that up and make those

things happen.”

Merges Dep. at p. 88; see also Merges Aff. at ¶

16.

Merges asserts that it was his belief that “[o]nly the

Defendants and not the CCSD had the duty or the right to address
safety issues on the CCSD grounds,” and with respect to snow and
ice treatment and removal “Mr. Behe controlled the entire process.”
Merges Aff. at ¶ 16.

Merges avers that he “had the expectation

that Defendants were in charge of and responsible for safety

16

inspections and maintenance of the District’s premises.”

Id.

In sum, the nexus between Aramark’s contractual duties and
Merges’s safety is not speculative or attenuated – it existed at
the date and time and place of Merges’s fall.

Aramark had a

contractual responsibility to manage the School District’s property
so as to keep it safe for teachers and students.

Assuming that

Aramark had notice of a dangerous condition on the property, it had
the obligation under the contract to cause that dangerous condition
to

be

remedied

or

run

the

risk

of

liability

for

reasonably

foreseeable harm to others legitimately on the grounds they were
required to manage.

Based on the totality of the record, I find

that plaintiff has established that he detrimentally relied on
Aramark’s contractual obligations to maintain the CCSD’s grounds
and, as a result, Aramark owed a duty of reasonable care to
plaintiff.
Before moving to Aramark’s alternative basis for summary
judgment, it is important to distinguish the Court’s finding of
duty from any suggestion of liability.

This Court has only

determined that the comprehensive facilities management contract
between CCSD and Aramark imposed a duty of care applicable to David
Merges

on

January

9,

2007.

The

Court

makes

no

finding

or

suggestion that the duty of care was breached or that any breach
proximately caused Merges’s injury.

Those determinations are

exclusively within the province of the finder of fact.

17

Storm in Progress: Having determined that Aramark owed a duty
to plaintiff, the Court turns next to Aramark’s alternative basis
for summary judgment – invocation of the “storm in progress”
defense.

Under

the

storm

in

progress

defense

“there

is

no

liability for injuries related to falling on accumulated snow and
ice until after the storm has ceased, in order to allow workers a
reasonable period of time to clean the walkways.”

Powell v. MLG

Hillside Assocs., L.P., 290 A.D.2d 345 (1st Dept. 2002).

If a

defendant establishes that the storm that has caused the hazardous
condition was still “in progress” at the time of a plaintiff’s slip
and

fall,

the

defendant

did

not,

as

a

matter

of

law,

have

reasonable time in which to remedy the condition and can not be
held liable for any negligence. Id. Once a defendant demonstrates
a prima facie showing of the “storm in progress” defense, the
defendant will be entitled to dismissal of the complaint at the
summary judgment stage unless the plaintiff comes forward with
evidence establishing the existence of a triable issue of fact.
Sanders v. Wal-Mart Stores, Inc., 9 A.D.3d 595 (3d Dept. 2004).
Here, Aramark relies on the expert opinion and report of
meteorologist

Howard

Altschule,

President

of

Forensic

Weather

Consultants in Albany New York, to demonstrate a prima facie
showing

of

the

“storm

in

progress”

defense.

According

to

Altschule, “surface observations and Doppler radar images . . .
establish that lake effect snow bands caused occasional light snow

18

to fall starting at 8:23 a.m through around 11:18 a.m.” on January
9, 2007.

See Altschule Aff. at ¶ 5.

More specifically, Altschule

opines that between 9:10 a.m. and 9:20 a.m. snow was falling over
139 Fairbanks Road in Churchville, New York, the location of
Merges’s fall.
data,

Id. at ¶ 6.

Altschule

concluded

Based on his review of the weather
“with

a

reasonable

degree

of

meteorological certainty that a new storm was in progress at the
time of the January 9, 2007 accident at issue in this lawsuit.”
Id. at ¶ 10.
For purposes of this summary judgment motion, the Court will
assume that the Altschule affidavit and expert report upon which it
is based satisfies Aramark’s burden to establish a prima facie
defense of a storm in progress on January 9, 2007.2

See Campagnano

v. Highgate Manor of Rensselaer, Inc., 299 A.D.2d 714, 715 (3d
Dept. 2002)(“Defendants satisfied their prima facie burden of
proving that there was a storm in progress at the time of the
incident” where their meteorologist opined that a storm was in
progress

“within

certainty.”).

a

reasonable

degree

of

meteorological

Accordingly, the Court turns to whether Merges has

2

Plaintiffs have submitted an affidavit from meteorologist
Kevin Williams in response to defendants’ “storm in progress”
argument. Defense counsel objected to the Williams affidavit for
several reasons, including the fact that it is “conclusory and
without evidentiary value.”
See Reply Affidavit of Terence P.
O’Connor, Esq. (Docket # 41) at ¶ 18. I agree and have given the
Williams affidavit no weight in analyzing the storm in progress
defense.
19

come forward with evidence establishing the existence of a triable
issue of fact.
Viewing, as I must, the evidence in the light most favorable
to plaintiff, the Court finds that the record contains evidence
sufficient to create a triable issue whether the plaintiff’s fall
was the result of the storm in progress or was due to negligence
independent of the “storm.”

The evidence in the record appears

undisputed that the hazardous ice conditions that were present in
and around the south entrance were not present at the front
entrance of the building.

Donald Duthe, an Associate Principal,

testified that Aramark was aware that the south entrance was a
designated exit route and that “we needed those back entrances
cleared of snow and safe for an evacuation at all times.”

See

March 1, 201 Deposition Transcript of Donald Duthe (hereinafter
“Duthe Dep.”) attached as Exhibit “J” to Smith Aff. at p. 23
(emphasis supplied).

According to Duthe, periodic inspections of

the grounds surrounding the facility had revealed problems in
keeping the south entrance clear of ice.

Indeed, prior to the

Merges’s slip and fall, the school Principal, John Bellini, had
notified Aramark’s Phil Behe of the need for Aramark to be “more
vigilant” and give “more rigid attention” to snow and ice problems
at the south entrance.

On the day of his fall, however, Merges

recalled that “unlike the walkways in the front of the Intermediate
School building, the walkways adjacent to the Intermediate School

20

building had not been treated by the Defendants with a substance to
melt the ice on the path.”

Merges’s recollection was corroborated

by the deposition testimony of other CCSD staff who were outside
the school on January 9, 2007.

Kathleen Daly, a fifth grade

teacher, stated that both teachers and students were slipping and
losing their footing as they exited the south entrance and that the
walkways did not appear to have been treated with an ice melting
agent.

See March 1, 2010 Deposition Transcript of Kathleen Daly

attached as Exhibit “I” to Smith Aff. at pp. 16-19.

Donald Duthe

testified that while the front entrance sidewalks had been treated
before school opened on the morning of January 7, 2007, the south
entrance sidewalks and pathways had not been given the same ice
melting treatment.

Duthe Dep. at pp. 33, 43.

Duthe recalled the

ice build-up near the south entrance to be clear and smooth. Duthe
also testified that he was aware of five people slipping and
falling on ice during the fire drill and all of them fell in the
same south entrance area that Merges fell.
sought treatment by the school nurse.

Three of those who fell

Duthe Dep. at pp. 31-34.

The record before the Court does not indicate any student or staff
member slipping and falling in the front entrance of the school
building.
The foregoing evidence pays tribute to issues of fact as to
whether it was the “storm” alone that caused Merges to slip and
fall.

A reasonable jury could conclude that Aramark was on notice

21

that both entrances needed to be treated for potential ice hazards
in January and the failure to give the south entrance the same
needed corrective

action

as

was

given

to

the

front

entrance

unnecessarily created or exacerbated an obvious ice hazard on the
morning of January 9, 2007. In considering the “storm in progress”
defense, it must be remembered that whatever storm was in progress
that morning was in progress over both the south entrance and the
front entrance.

The fact that at least five people slipped and

fell at the south entrance and no one was reported to have fallen
at the front entrance could reasonably lead a jury to find that it
was not the “storm” that caused Merges to slip and fall, but rather
it was the failure to alleviate or correct a known winter risk of
ice which Aramark had been warned about.

Englerth v. Penfield

Cent. Sch. Dist., 85 A.D.3d 1714 (4th Dept. 2011)(Trial court’s
grant of summary judgment on basis of storm in progress reversed
where issue of fact existed as to whether the alleged condition
formed prior to commencement of the storm in progress and was
therefore a preexisting hazard, rather than the product of a storm
in progress and whether defendant contributed to the creation of
the hazardous condition); Pipero v. New York City Transit Auth., 69
A.D.3d 493 (1st Dept. 2010)(“[E]ven if a storm was in progress at
the time of the incident, plaintiff’s testimony and defendant’s own
records raise issues of fact as to whether defendant gratuitously
and negligently performed snow and ice removal operations and as to

22

whether its failure to place sand or salt on the stairs created or
exacerbated a dangerous condition.”); Schuster v. Dukarm, 38 A.D.3d
1358 (4th Dept. 2007)(grant of summary judgment on basis of storm
in progress reversed where plaintiff raised an issue of fact
whether she slipped on ice that had accumulated prior to the storm
and whether "the ice was a preexisting hazard and was not created
by

the

storm

in

progress

so

as

to

defeat

defendants'

motion")(citation omitted); see also Imperati v. Kohl's Dep’t
Stores, Inc., 91 A.D.3d 1111 (1st Dept. 2012)(“Simply stated,
questions abound as to how the conditions that caused plaintiff's
fall were created and, as a result, plaintiffs' motion for summary
judgment was properly denied.”).

Having found the existence of

triable factual issues as to Aramark’s conduct in relation to
Merges’s fall, the granting of summary judgment is not appropriate.

Conclusion
For the reasons set forth herein, Aramark’s motion for summary
judgment (Docket # 32) is denied.
SO ORDERED.

______________________________
JONATHAN W. FELDMAN
United States Magistrate Judge

Dated: March 30, 2012
Rochester, New York
23