In 2021, a defendant’s burden of proof under Connecticut’s Ongoing Storm Doctrine was significantly modified by the Belevich v. Renaissance I, LLC[1] (“Belevich”) decision, which may have fallen below the collective radar. The Connecticut Appellate Court’s subsequent 2023 decision in Herrera v. Meadow Hill, Inc.[2] underscores that the Belevich decision has dramatically altered the analysis applying to motions for summary judgment premised on the Ongoing Storm Doctrine, making both Belevich and Herrera must-reads for any lawyer, insurance adjuster, or other professional involved in litigating slip-and-falls on snow and ice.
In Belevich v. Renaissance I, LLC, 207 Conn. App. 119 (2021), the Connecticut Appellate Court adopted the burden-shifting mechanism from New York law. Nonetheless, there remained unanswered questions as to how the burden shifted in cases where a party began snow and ice remediation sooner than the law or local ordinances required. It remained unclear whether the plaintiff would also have an increased burden in opposing summary judgment under those circumstances, as compared with the relatively minimal burden plaintiffs faced prior to the Belevich decision.
Those unanswered questions were resolved by the Connecticut Appellate Court in Herrera v. Meadow Hill, Inc., 217 Conn. App. 671 (2023), which clarified that the burden shifts to the plaintiff to affirmatively prove that any snow and ice remediation activities performed by the defendant were performed inadequately. Should the plaintiff fail to do so, their case will not survive summary judgment.
Ongoing Storm Doctrine Pre-Belevich
The Ongoing Storm Doctrine is a well-established defense to slip-and-falls on snow and ice in Connecticut. In Kraus v. Newton, the Connecticut Supreme Court set out the defense: “. . . in the absence of unusual circumstances, a property owner, in fulfilling the duty owed to invitees upon his property to exercise reasonable diligence in removing dangerous accumulations of snow . . . and ice, may await the end of a storm and a reasonable time thereafter before removing ice and snow from outside walks and steps. To require a landlord or other inviter to keep walks and steps clear of dangerous accumulations of ice, sleet or snow, or to spread sand or ashes while a storm continues is inexpedient and impractical.” (Emphasis added.)[3]
Following Kraus, the courts developed a healthy body of case law applying the Ongoing Storm Doctrine to motions for summary judgment. One issue that split the Superior Courts was whether a defendant effectively waives the Ongoing Storm defense by gratuitously beginning snow and ice remediation prior to the expiration of the “reasonable time” they are allotted pursuant to Kraus. The Zynkowska v. Danbury Mall, LLC case sets out an analysis of the split (as of 2020), and succinctly demonstrates the effect of the split prior to Belevich’s adoption of burden-shifting:
[W]hether the defendant engaged in snow or ice removal is a genuine issue of material fact because it is necessary to establish whether the snow and ice removal exception to the ongoing storm doctrine will apply. The defendant has not offered any evidence as to whether or not it engaged in snow or ice removal. As the non-moving party, the plaintiff does not need to provide evidentiary support for her opposition because the defendant, as the moving party, has not affirmatively shown that there is no genuine issue of fact. (Emphasis added.)[4]
This is noteworthy, as up to 2020, it was the defendant’s burden, not the plaintiff’s, to prove that the defendant had or had not engaged in snow and ice removal, and if it had engaged in removal, that it had done so sufficiently.
Belevich Burden of Proof
The Ongoing Storm Doctrine remained largely unchanged following Kraus—apart from Superior Court analysis of when the defense could be waived—until the Connecticut Appellate Court decided Belevich. In Belevich, the Appellate Court articulated the analytical framework for summary judgment motions premised on the Ongoing Storm Doctrine, formally adopting New York’s Storm in Progress Doctrine’s analysis. The defendant’s burden under that scheme calls for the defendant “to establish, prima facie, that it neither created the snow and ice condition nor had actual or constructive notice of the condition .... [T]he defendant [may sustain] this burden by presenting evidence that there was a storm in progress when the plaintiff fell . . .” (emphasis added.) Thus, Belevich provided clear parameters for defendants to craft motions for summary judgment, and thereafter provided the plaintiff’s analog:
“[Upon the defendant meeting its burden], the burden shift[s] to the plaintiff to raise a triable issue of fact as to whether the precipitation from the storm in progress was not the cause of his accident .... To do so, the plaintiff [is] required to raise a triable issue of fact as to whether the accident was caused by a slippery condition at the location where the plaintiff fell that existed prior to the storm, as opposed to precipitation . . . from the storm in progress, and that the defendant had actual or constructive notice of the preexisting condition . . .” (Emphasis added.)
As compared with the cited passage above from Zynkowska,[5] the Appellate Court’s decision raised the bar that plaintiffs must clear when opposing summary judgment. In the wake of Belevich, plaintiffs’ burden of proof to survive summary judgment increased significantly, as plaintiffs must now raise triable issues of fact to oppose defendants’ motions for summary judgment. The adoption of New York’s analytical framework for Storm in Progress Doctrine represents a significant shift in the analysis applied to motions for summary judgment based on the Ongoing Storm Doctrine. However, Belevich did not provide clear guidance regarding how this new burden-shifting framework should operate when a defendant starts removing snow and ice while a storm is still ongoing. Hererra, decided two years later in 2023, provided the clarification.
Herrera Provides the Roadmap for Belevich’s Application
In Herrera, the Appellate Court considered whether the trial court properly granted summary judgment to the defendant based on the Ongoing Storm Doctrine. The defendant’s motion satisfied its initial burden of demonstrating that there was an ongoing storm or that a reasonable time had not elapsed after the storm’s conclusion before the plaintiff’s fall.[6] The trial court’s decision was based upon two primary submissions by the defendant: the defendant’s meteorological expert’s affidavit, and the local town’s Code of Ordinances.[7]
Specifically, the defendant presented evidence through its meteorological expert that a snow and ice event took place from 9:44 a.m. on December 7, 2018, through 10:11 p.m. of the same day (which was two hours prior to the plaintiff’s fall). The trial court granted summary judgment on the basis that this evidence shifted the burden of proof to the plaintiff, who failed to satisfy his burden of proof in return.[8] The trial court specifically found that the plaintiff failed to present sufficient evidence that suggested that the defendant’s remediation efforts were insufficient, and further found that the plaintiff’s testimony stating that he did not observe any signs of snow or ice remediation was insufficient to establish that the defendant’s efforts were indeed insufficient.[9] Therefore, the trial court found that the plaintiff had failed to meet his burden.[10]
The Appellate Court affirmed the trial court’s judgment, finding that the defendant had met its burden in the first instance by presenting expert opinions establishing that a storm had taken place, and the Glastonbury ordinance providing twenty-four hours for snow and ice remediation. Importantly, the Appellate Court’s decision (in its affirmation of the trial court’s underlying analysis and decision) provided the necessary guidance regarding how to analyze the aforementioned exception to the Ongoing Storm Doctrine on summary judgment, in that it required the plaintiff to raise a triable issue of fact as to whether the defendant performed its snow and ice remediation work sufficiently. If the plaintiff was unable to do so (as was the case in Herrera), then the plaintiff was unable to satisfy the exception to the Ongoing Storm Doctrine, and therefore could not defeat summary judgment. Thus, Herrera extends the Belevich burden-shifting analysis, and requires the plaintiff to raise a triable issue of fact as to the insufficiency of a defendant’s remediation work in order to meaningfully oppose summary judgment, instead of allowing the plaintiff to merely raise it as an open issue of fact best left to the jury to decide.
The Burden-Shifting Analysis Opens the Door to Favorable Rulings for Defendants
Belevich and Herrera are almost certainly going to have a measurable impact on slip-and-fall litigation in Connecticut. The modified analysis on summary judgment, in practice, calls for further investigation and development from the plaintiff’s side of the dispute in order to develop a meaningful opposition to summary judgment, which plaintiffs are not always prepared to do. Simultaneously, these holdings provide defendants with greater opportunities to dispose of slip-and-fall matters early in the case and at a lower cost than what was previously possible (assuming the facts support a defense under the Ongoing Storm Doctrine). Already, the modified framework has led to a potentially greater rate of disposition of slip-and-fall matters based upon the Ongoing Storm Doctrine, and the increased burdens that plaintiffs now face in opposing summary judgment.[11] As defendants test the applicability of the Ongoing Storm Doctrine going forward, their successes and failures will reveal the full effect of Belevich and Herrera, however, if present trends are an indicator of the expected effect of these decisions, we may see a marked increase in disposition of slip-and-fall matters based upon the Ongoing Storm Doctrine.
[1] 207 Conn. App. 119 (2021).
[2] 217 Conn. App. 671 (2023).
[3] 211 Conn. 191, 197-198, 558 A.2d 240, 243 (1989).
[4] 2020 WL 1921967, at *4 (Conn. Super. Ct. March 9, 2020).
[5] “As the non-moving party, the plaintiff does not need to provide evidentiary support for her opposition because the defendant, as the moving party, has not affirmatively shown that there is no genuine issue of fact.”
[6] Id. at 681.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Two recent decisions tend to support this conclusion. See Miller-Black v. New Britain Holdings, LLC, 2024 WL 3158357, (Conn. Super. Ct. June 17, 2024) (granting summary judgment based upon plaintiff’s failure to meet her burden of proof on rebuttal regarding the insufficiency of remediation work performed by defendants during the storm); see also Betts v. City of Middletown, 2023 WL 6578912 (Conn. Super. Ct. Oct. 6, 2023) (granting summary judgment based upon plaintiff’s failure to meet her burden of proof on rebuttal).