Avoid a Slippery Situation

What certified consulting meteorologists can bring to the settlement table

January 18, 2021 Photo

Claims and lawsuits involving slip and falls on snow and ice are big business, especially in heavily populated cities in the northeast like New York; Philadelphia; Washington, D.C.; and Baltimore. Significant resources are spent investigating, defending, and resolving these claims. Whenever weather conditions at a specific time and place are relevant to proving or defending a claim, counsel should consult with an expert meteorologist to review and analyze the weather conditions at the time of the incident, since they can be invaluable to the successful resolution of snow and ice claims.  

Since snow and ice claims are contingent upon the establishment of “notice” by the owner of the property, it is essential to discover the precise weather and ground conditions at the time of the alleged incident. Weather conditions change quickly and significantly over short distances, making snow and ice claims very complex. Fraudulent claims and/or inaccurate recollections of the weather and ground conditions complicate matters. A certified consulting meteorologist conducts a site-specific analysis and provides detailed information about the weather conditions, temperatures, history of melting and refreezing processes, timelines, and when snow or ice last formed. Such expertise is essential to establish the weather and ground conditions at the precise time and location of the slip and fall. 

Bad Weather Data

While it is tempting to rely on NOAA records, those records are prone to misinterpretation when viewed by a layperson. The NOAA data does not correlate the different weather codes to actual outdoor conditions. For example, there is a common misconception that freezing rain is the small, solid ice pellets that fall from the sky, as opposed to what it really is: rain that falls in liquid form but freezes upon impact to form a coating of glaze upon the ground and on exposed objects. Freezing rain creates a very slippery, dangerous glaze of ice on the ground. Knowing the difference between that and sleet, which has a lot more traction than freezing rain, can have significant implications for how a claim or lawsuit is resolved. 

Further, the heating coils in the rain gauges at airports may malfunction or freeze, and the precipitation amounts from that airport only register as ‘trace’ in the NOAA records. An experienced meteorologist reviews all of the weather data, Doppler radar images, and other detailed weather records, which often reveal that thick ice accumulated; and area roads, sidewalks, and driveways were slippery and hazardous, causing numerous accidents. Attorneys, and even some courts, have relied upon these NOAA records and misleading ‘trace’ amounts when a certified consulting meteorologist was not engaged. Had one been retained, she would be able to analyze all available weather data to explain what was truly occurring. In those cases, the outcomes could have been much different. 

When to Retain a Meteorologist

It is important to retain a certified consulting meteorologist early in the discovery phase. Retaining a weather expert enables the attorney to discuss the facts and theories of a case, and allows the meteorologist to review relevant deposition transcripts, statements, photographs of the scene, and reports from other experts as they become available. The certified consulting meteorologists then use their findings to corroborate witness testimony or the conditions that reportedly existed when the accident occurred.

Having a certified consulting meteorologist review opposing expert reports for inaccuracies or inconsistencies is also an important consideration. Sometimes there are statements made in those reports or affidavits that simply cannot be supported by the weather data. Those errors may go unnoticed without the keen eye of a weather detective working the case for you. 

Insurance carriers should engage a trained meteorologist when the case or claim is filed because the detailed information received is instrumental in deciding whether to settle or defend a claim. The amount of money insurance carriers can save by making informed decisions is significant, especially in light of the sheer volume of snow and ice claims and lawsuits.    

Certified consulting meteorologists provide reliable, detailed information about the weather and ground conditions for a specific accident location and timeframe. Using Doppler radar images that can be zoomed in over the accident location, and records and data from various weather stations, meteorologists help adjusters and attorneys understand what weather and ground conditions existed in the days leading up to and including the time an alleged accident occurred. Experienced meteorological experts extrapolate between different weather stations and different types of weather records. This kind of analysis and granularity cannot be achieved with traditional airport weather records. Knowing if a storm was in progress, if snow or ice was actively accumulating, if melting and refreezing processes occurred, or if the ice had been present for many days pre-accident is all crucial information.

To avoid any potential Daubert or Frye challenges, certified consulting meteorologists use sound, scientific principles, practices, and methodologies customarily relied upon in these kinds of investigations. In addition to direct use in litigation and claims resolution, a meteorological expert report is reliable enough to provide to other liability experts as the foundation for their opinions and conclusions. These expert reports are prepared as if the case is going to trial in order to explain the data, methodology, and reasoning behind the conclusions, but they can also be used internally to document the file.

Impact on Verdicts

A lawsuit filed in Rensselaer County Supreme Court, in New York, alleged that the plaintiff fell on the slippery surface of a defendant’s parking lot at approximately 10:00 p.m. on Jan. 18, 2015. The plaintiff alleged that snow melted from a nearby pile onto the parking lot and refroze, causing icy patches on which the plaintiff fell.

The parking lot owner retained an expert meteorologist. Using numerous weather records, National Weather Service bulletins, and Doppler radar images zoomed in over the incident location, the defense meteorological expert showed that freezing drizzle was falling and icy conditions were forming at the precise time of the incident. This opinion aligned with the plaintiff’s testimony that there “was ice in every area of my immediate attention.” This opinion was also consistent with the testimony of plaintiff’s girlfriend, who stated it was extremely icy and that driving to the hospital was difficult as there was ice on the roads.

The defendant filed a motion for summary judgment to dismiss the case, relying on the expert meteorologist’s report to defeat the plaintiff’s theory that ice formed from snowmelt. The court granted the motion and dismissed the case. According to the court, a fact finder could not conclude that the icy conditions on the pavement where the plaintiff fell preceded the storm that occurred on Jan. 18, 2015, much less that it had been present for a sufficient period of time to establish the parking lot owner’s notice of the condition. The defense’s success hinged on a very detailed meteorological analysis for the incident location that demonstrated that a winter storm was in progress, ice was actively forming and accumulating, and freezing-rain advisories had been issued. 

In a Pennsylvania case, the plaintiff produced photographs of a snowy, partially cleared parking lot where he claimed to have slipped and fallen. It was only after retaining a consulting meteorologist that the defense learned that the plaintiff fell on the morning after a major snowstorm, at a time when there were still travel and snow/ice advisories in place. The claim settled quickly for nuisance value.

Smart attorneys and claims professionals retain a forensic meteorologist whenever a weather-related claim is alleged. Meteorologists provide insight that a weather website or NOAA data lacks. Their expertise can be valuable to the early resolution of legitimate claims, or the defense of questionable claims at trial.

About The Authors
Multiple Contributors
Jennifer M. Brooks

Jennifer M. Brooks is staff litigation counsel at GuideOne Insurance.

Howard Altschule

Howard Altschule is a certified consulting meteorologist and CEO of Forensic Weather Consultants, LLC.  hga@weatherconsultants.com

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