Turmel v. UVM, No. S0980-01 Cncv (Katz, J., July 20, 2004)



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STATE OF VERMONT
Chittenden County, ss.:



TURMEL

v.

UVM

                                 ENTRY
                          (Motion to Reconsider)

        After falling down on a UVM walkway in the midst of a snowstorm,
plaintiff seeks to revive his claim of negligence against UVM based on the
fact that UVM sent its snow removal crews home shortly before his fall and
the fact that UVM did not provide evidence that snow and ice was had been
properly removed in the area where plaintiff fell from the morning prior to
his accident. By itself, the fact that UVM sent its ground crews home at
3:30—the normal end of their work day—after having already putting in an
11 hour day, does not logically suggest anything about the storm material to
the Storm in Progress Rule. It might suggest that there was no blizzard,
snow emergency, or “big storm” occurring, but it does not infer that it had
stopped snowing, or that the storm had ended. Moreover, this inference is
not supported by any other evidence and is directly contradicted by much of
the relevant evidence, including the plaintiff’s own affidavit. The result is
that plaintiff’s argument—because it had snowed earlier and the plowing
crews went home at the end of the day, the storm was over—rests solely on
conjecture, which as a matter of law does not satisfy his burden for
summary judgment. McKirryher v. Yager, 112 Vt. 336, 341 (1941)
(“Conjecture is no proof in him who is bound to make proof.”).

        The more interesting issue raised by plaintiff’s motion is whether
UVM has a burden to show that it effectively plowed the area the morning
before the accident. The inference sought is that without such evidence
plaintiff may have slipped on prior accumulation that should have been
removed. Plaintiff relies heavily for this inference on the factual
determination in Olejniczak v. E.I. DuPont de Nemours & Co., which we
cited in our previous entry for its phrasing of the Storm in Progress Rule.
Compare 998 F. Supp. 274, 280 (W.D.N.Y. 1998) (discussion of proximate
cause); with id. at 278 (SIP Rule). In Olejniczak, the court denied summary
judgment in part because the defendants submitted no evidence showing
they had removed ice and snow from the pumping area in front of liquid
nitrogen tanks the day of the accident. Id. at 280. This created a factual
question of whether plaintiff slipped on the inch and a half of new snow
that had fallen before his delivery or the layers of hard packed ice and
snow, which the evidence showed had accumulated all winter around the
tanks. Id.

       Setting aside for the moment the distinguishing factual features of
Olejniczak, such as the busy industrial setting that makes it more akin to the
high traffic area described in Budzko v. One City Center Assoc. Ltd.
P’ship, 767 A.2d 310 (Me. 2001), plaintiff confuses our limited application
of Olejniczak for its statement of the Storm in Progress Rule with its
proximate cause analysis. In Olejniczak, plaintiff’s evidence suggested an
on-going problem of negligent care of the tank area because the snow and
ice had accumulated and “been packed down and hardened.” 998 F. Supp.
at 280. Thus the question was whether the defendant had properly cared for
his premises throughout the winter. Since the facts suggested that plaintiff
fell either because of the new snow or the old snow, the case could not be
resolved on summary judgment or by application of the Storm in Progress
Rule. In the present case, there is no evidence that UVM had failed to
properly plow its campus in the past or had allowed snow to accumulate on
the campus walkways all winter. Naturally, the walkways cannot be
cleared of every flake of snow after each storm, but there is nothing to
suggest a mounding or packing of snow on the walkways creating a hazard
similar to Olejniczak. While the evidence does allow an inference that
some of the accumulation involved in plaintiff’s accident may have come
from the morning snowstorm, the Storm in Progress Rule allows an owner
a reasonable amount of time to remove the accumulated snow. Therefore,
even if the morning and afternoon storms were separate, their rapid
succession did not leave enough time in between to assign UVM, as a
matter of law, a duty to completely remove the first storm’s accumulation.
We note, however, that the evidence does not support an inference that the
morning and afternoon were two separate storms as there was no indication
of a break in storm conditions throughout the day. Cf. Neimann v.
Northwestern College, 389 N.W.2d 260, 262 (Minn. 1986) (SIP Rule
applies to plaintiff who slipped and fell on college walkway during the
second day of a three day winter storm). Either way, the Storm in Progress
Rule applies to the morning and afternoon snow. Therefore, UVM, as a
matter of law, did not have a duty to remove the snow from the scene prior
to plaintiff’s accident.

       Based on the foregoing, plaintiff’s motion to reconsider is denied.



       Dated at Burlington, Vermont________________, 2004.




                                          ________________________
                                          Judge
