Every winter premises docket runs into the same wall. Your client goes down on an icy walkway, the medical specials are real, and the defense answer leads with three words that end a surprising number of cases before discovery closes: storm in progress.
The storm-in-progress rule holds that a landowner owes no duty to clear snow or ice while precipitation is still falling. The duty to remediate arises only after a reasonable time has passed following the end of the storm. New York and New Jersey courts have built the most developed body of law on the point, but versions of the rule appear across cold-weather jurisdictions. For plaintiff counsel, the doctrine is not a dead end. It is a fact question dressed up as a legal one, and the cases that survive summary judgment are the ones where counsel treated the weather timeline as a discovery project from intake forward.
What the rule actually requires the defense to prove
The defense does not get the rule for free. It has to establish that a storm was in fact ongoing at the time of the fall, and that it had not yet had a reasonable opportunity to clear the resulting accumulation. Both halves are contestable. A drizzle that stopped hours earlier is not an ongoing storm. A dusting that fell on top of a sheet of ice from a freeze three days prior does not immunize the owner from the older hazard underneath.
That second scenario is where most winning plaintiff cases live. If the ice your client slipped on predated the current system, the storm-in-progress rule does not apply to it at all. The owner had days to address the base layer and did not. Your job is to separate the old hazard from the new precipitation with evidence a jury can follow.
Build the weather record before the defense does
Certified climatological data is the backbone of these cases. Order the hourly observations from the nearest official station and, where the fall site sits far from that station, retain a forensic meteorologist to interpolate conditions at the actual location. The report should fix three things: when precipitation started, when it stopped, and what was already on the ground before it began.
Lulls matter too. A multi-day system with a dry, above-freezing window in the middle can reset the reasonable-time clock. If your client fell during that window, the owner may have owed a duty to clear even though snow returned later. None of this is available from memory or from the incident report. It comes from the data, and the party that pulls it first controls the narrative.
Attack the negligent partial clearing
Owners who do nothing during a storm are protected. Owners who do something and do it badly often are not. When a property manager sends a crew out mid-storm, plows part of a lot, piles snow where it will melt and refreeze across a walkway, or shovels a path and leaves a glaze behind, the owner may have created or aggravated the very hazard that caused the fall. That theory sidesteps the rule entirely, because it does not depend on the timing of the storm's end. It depends on affirmative conduct.
Discovery here targets the vendor. Get the snow-removal contract, the service logs, the dispatch records, and the invoices. The timestamps on those documents frequently contradict the defense affidavit that says nothing was touched until the storm cleared. A crew that billed for a 2 a.m. push has, by its own paperwork, undertaken a duty.
Preserve the transient evidence early
Ice melts and surveillance overwrites. The narrow evidentiary window is one reason these cases reward fast, aggressive preservation. Send the litigation hold the week you sign the client, and be specific about weather-treatment records, salt and sand purchase logs, and any camera covering the fall location. Firms that handle a steady volume of these files should treat the preservation letter as a template, not a bespoke drafting exercise. Our coverage of practice operations has walked through building that kind of intake discipline.
Photographs from the client, a companion, or responding EMS can lock in the condition before it changes. A single image showing rutted, refrozen ice with dirt embedded in it can defeat the claim that the hazard was fresh, clean, falling snow.
Frame the summary judgment fight as a factual dispute
The defense wants the court to treat storm-in-progress as a matter of law. Your opposition should convert it into a swearing contest the jury has to resolve. Competing meteorological interpretations, contractor logs that undercut the affidavit, and photographs of old ice are each enough to raise a triable issue. Courts that grant these motions do so on thin plaintiff records. Courts that deny them are looking at a developed weather timeline and a documented clearing history.
The through-line with the rest of premises practice is consistent. Notice, causation, and preservation decide these files, and winter cases simply add a meteorological layer on top. For more on proof problems in this area, see our ongoing slip-and-fall coverage, and for how these disputes read on appeal, our case law and settlements reporting tracks the decisions that matter.
Treated as a legal doctrine, storm-in-progress ends cases. Treated as a factual question about what fell, when it stopped, and what was already frozen underneath, it becomes one more issue you can win with the record.