Carty v. Merchant 99-111 Founders, LLC

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Carty v. Merchant 99-111 Founders, LLC

LLOYD CARTY v. MERCHANT 99-111 FOUNDERS, LLC
(AC 46511)
Bright, C. J., and Clark and Westbrook, Js.

Syllabus

The plaintiff sought to recover damages from the defendant for personal
injuries he sustained in connection with an alleged slip and fall as a
result of untreated ice on premises owned, controlled, and maintained
by the defendant. The trial court granted the defendant’s motion for
summary judgment on the basis of the ongoing storm doctrine, and the
plaintiff appealed to this court. Held that the trial court properly granted
the defendant’s motion for summary judgment as it was undisputed that
there was an ongoing storm at the time the plaintiff fell, the defendant
satisfied its initial burden of establishing, prima facie, that it neither
created the snow and ice condition nor did it have actual or constructive
notice of the condition, and the plaintiff failed to satisfy his burden of
raising a genuine issue of material fact with respect to whether the icy
condition existed prior to the storm that was ongoing at the time of
his fall.
Argued April 25—officially released August 27, 2024

Procedural History

Action to recover damages for personal injuries sus-
tained as a result of the defendant’s alleged negligence,
and for other relief, brought to the Superior Court in
the judicial district of Hartford, where the court, Rosen,
J., granted the defendant’s motion for summary judg-
ment and rendered judgment thereon, from which the
plaintiff appealed to this court. Affirmed.
William B. Wynne, for the appellant (plaintiff).
Sarah B. Christie, with whom, on the brief, were
Colleen M. Garlick and Nicholas G. Dimopoulos, for
the appellee (defendant).
Opinion

CLARK, J. The plaintiff, Lloyd Carty, appeals from
the summary judgment rendered by the trial court in
favor of the defendant, Merchant 99-111 Founders,
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LLC, on the plaintiff’s one count complaint sounding
1

in premises liability arising out of his slip and fall. On
appeal, the plaintiff claims that the court improperly
rendered summary judgment in favor of the defendant
on the basis of the ongoing storm doctrine because (1)
the defendant never produced evidence to refute the
claim that the plaintiff fell on preexisting ice, and (2)
the plaintiff raised genuine issues of material fact as
to whether he fell on preexisting ice.2 We affirm the
judgment of the trial court.
We begin with the relevant procedural history of the
case. On January 7, 2021, the plaintiff commenced the
present action against the defendant in which he
asserted a claim sounding in premises liability arising
out of his alleged slip and fall. In support of his claim,
he alleged that, on March 10, 2019, he was walking on
the exterior of the premises known as 111 Founders
Plaza in East Hartford (plaza), which is owned by the
defendant. He was caused to slip and fall by reason of
a dangerous and defective condition, namely, an accu-
mulation of snow and ice that had been present for
1
On November 12, 2021, the defendant filed a motion to serve a third-
party complaint on Pinewood Landscaping, LLC (Pinewood). The defendant
alleged that BrightView Landscapes, LLC, was retained by the defendant
for snow removal services which, in turn, subcontracted with Pinewood,
that the defendant was a third-party beneficiary to the subcontract agree-
ment, and that the agreement provided that Pinewood shall hold harmless
and indemnify the defendant and to include the defendant as an additional
insured on its liability policy to protect the defendant from claims such as
the present claim. On December 20, 2021, the court granted the defendant’s
motion to implead Pinewood. Pinewood was not a party to the motion for
summary judgment and is not participating in this appeal.
2
The plaintiff also claims that ‘‘the trial court improperly substituted its
judgment for that of the trier of fact and deprived the plaintiff-appellant of
his right to a jury trial.’’ At oral argument before this court, the plaintiff
conceded that this claim is better characterized as an argument that summary
judgment was improperly rendered. Therefore, although the plaintiff
attempted to brief this argument as a separate claim, we read the substance
of this claim as part of his more general argument that the court improperly
granted the defendant’s motion for summary judgment, which we address
in our analysis of the plaintiff’s other two claims.
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some time, which was not visible to pedestrians. As a
result of such fall, he suffered various injuries and
losses, and incurred (and may continue to incur)
expenses for medical care and attention, hospital care,
X-rays, physical therapy, and prescriptions, among
other things.
On March 25, 2021, the defendant answered the com-
plaint and asserted a special defense alleging that the
plaintiff’s alleged injuries and damages were caused, in
whole or in part, by his own negligence.
On October 6, 2022, the defendant filed a motion
for summary judgment, accompanied by a supporting
memorandum of law. The defendant argued that it was
entitled to summary judgment because there was no
genuine issue of material fact that the plaintiff’s injuries
occurred during an ongoing snowstorm and that, conse-
quently, pursuant to the ongoing storm doctrine, the
defendant did not owe any legal duty to the plaintiff at
the time of the incident and could not, as a matter of
law, be found negligent. As evidentiary support for its
motion, the defendant submitted transcript excerpts
from the August 26, 2022 deposition of the plaintiff and
a police report produced by the East Hartford Police
Department.
The plaintiff testified during his deposition that, on
March 10, 2019, at approximately 8 a.m., he had just
finished working his shift as a security guard at the
plaza and was on his way home after being relieved by
his coworker, Christian Burton. Before the plaintiff left,
Burton told him that Pitkin Street was slippery, and
that he had slipped on his way in to work. As the plaintiff
was leaving work, he observed that it was actively snow-
ing and that the roads, parking lot, and sidewalks were
covered with snow. He also observed plow trucks and
a snow removal crew working, which he saw arrive at
the property at some point during his shift.
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The plaintiff testified that he walked on the sidewalk
in front of the plaza and headed across the parking lot
of the Hampton Inn & Suites toward the sidewalk along
Pitkin Street, which was the route he typically took to
access the Founders Bridge into downtown Hartford
on his route home. As the plaintiff was walking down
the sidewalk near the Hampton Inn & Suites, he slipped
on a patch of ice that was underneath the snow and
fell onto his knees and then onto his stomach. Once he
was able to get up, he tried to continue walking but
was only able to reach East River Drive before his pain
was too much to bear. He then sat down on a staircase
in a commuter parking lot and called 911. An ambulance
arrived first, followed by an East Hartford police officer,
who spoke to the plaintiff about his fall. The plaintiff
told the officer the general area where he fell, and the
officer located the area and took photographs, which
were included in the police report.
As to the weather conditions on the day of his fall,
the plaintiff testified that, when he arrived at work, he
did not recall it snowing and that the parking lot and
sidewalks were clear. According to the plaintiff, it
started snowing in the morning on the day of his fall
while he was working indoors. Although he could not
recall exactly when he first noticed that it had begun
to snow, it was snowing when he fell, and the roads,
parking lot, and sidewalks were covered with snow at
that time. With respect to the condition of the sidewalk
where he fell, the plaintiff could not recall whether
there had been any snow or ice on the sidewalk the
day before his fall. He also testified that he did not
know how or when the ice that caused him to slip and
fall had formed, how long that ice was there before he
fell, how thick the ice was, or whether it was formed
during the ongoing storm. To the best of the plaintiff’s
recollection, it had last snowed early during the week
leading up to his fall. The plaintiff also testified that,
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at some point during the week leading up to his fall,
he noticed water on the sidewalk in the general area
where he fell.
On January 18, 2023, the plaintiff filed a memorandum
of law in opposition to the defendant’s motion for sum-
mary judgment with appended exhibits, including addi-
tional transcript excerpts from his deposition and a
‘‘certified copy of the United States Department of Com-
merce meteorological records from the National Cen-
ters for Environmental Information in Asheville, North
Carolina’’ (weather records). In his memorandum of
law, the plaintiff argued that there existed a genuine
issue of material fact with respect to whether the ice
that caused him to fall had formed prior to the storm
that was ongoing when he fell. In support of that con-
tention, he pointed to his deposition testimony that he
had seen water on the sidewalk in the area where he
fell during the week leading up to his fall and to the
weather records, which, according to him, proved that
there had been precipitation during the week leading
up to his fall and that the temperature had ranged above
and below freezing throughout that period.
The plaintiff also filed an affidavit in opposition to
the defendant’s motion for summary judgment on Janu-
ary 23, 2023. In his affidavit, the plaintiff stated, inter
alia, that he ‘‘was caused to fall by reason of ice that
was present underneath snow that had fallen over-
night,’’ that ‘‘[i]n the week before [he] fell, [he saw] ice
on the sidewalk in the area where [he] fell, and that,
‘‘[d]uring [the week that he fell], [he saw] water on
the sidewalks and the temperatures had fallen below
freezing [at night].’’
At an April 17, 2023 hearing, the court, Rosen, J.,
heard oral argument on the defendant’s motion for sum-
mary judgment. On April 28, 2023, the court issued
a memorandum of decision in which it granted the
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defendant’s motion for summary judgment. In its memo-
randum of decision, the court stated: ‘‘In the present
case, it is undisputed that there was an ongoing storm
when the plaintiff fell. The plaintiff testified at his depo-
sition that it was snowing when the incident occurred,
a fact corroborated by the [weather] records submitted
by the plaintiff. . . . As such, the defendant has met its
burden under the ongoing storm doctrine. The plaintiff
must therefore show that the condition that caused the
plaintiff to fall preexisted the ongoing storm and that
the defendant had notice of the condition. . . .
‘‘The plaintiff avers that a few days prior to the inci-
dent, he saw ice on the sidewalk in the area where he
fell. . . . At his deposition, the plaintiff could not recall
whether there had been any snow or ice on the sidewalk
the day before the incident. . . . The plaintiff also
could not conclusively state that the ice had not formed
during the ongoing storm. . . . The plaintiff did not
know when the ice first appeared, how it formed, or
how long it had been on the ground. . . . Nor did he
know its thickness. . . .
‘‘The plaintiff’s averment that he saw ice in the gen-
eral vicinity of where he fell a few days before he fell is
insufficient to satisfy his burden. The plaintiff submitted
[weather] records to support his argument that ice was
present in the days preceding his fall. . . . However,
those records, while supporting the notion that ice
could have formed before his fall, do not raise a genuine
issue of material fact that ice had in fact formed, was
present in the area on the day he fell, establish its
thickness, or when it formed. . . . How and when the
ice formed is therefore speculation and conjecture, and
is insufficient to raise a genuine issue of material fact.
The plaintiff also has not shown that the defendant had
notice of the allegedly preexisting condition. Evidence
that there was ice in the general vicinity of the accident
is insufficient to raise a genuine issue of material fact
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as to whether the defendant had actual or constructive
notice. Belevich v. Renaissance I, LLC, [207 Conn. App.
119, 131, 261 A.3d 1 (2021)]. . . . For all of the forego-
ing reasons, the defendant’s motion for summary judg-
ment is granted.’’ (Citations omitted.) This appeal fol-
lowed. Additional facts and procedural history will be
set forth as necessary.
On appeal, the plaintiff claims that the court improp-
erly granted summary judgment in favor of the defen-
dant on the basis of the ongoing storm doctrine because
(1) the defendant never produced evidence to refute
the claim that the plaintiff fell on preexisting ice and
(2) the plaintiff raised genuine issues of material fact
as to whether he fell on preexisting ice. We disagree.
We begin by setting forth the standard of review
and legal principles necessary to our resolution of this
appeal. ‘‘Practice Book § 17-49 provides that summary
judgment shall be rendered forthwith if the pleadings,
affidavits and any other proof submitted show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.
A party moving for summary judgment is held to a strict
standard. . . . To satisfy his burden the movant must
make a showing that it is quite clear what the truth is,
and that excludes any real doubt as to the existence of
any genuine issue of material fact. . . . As the burden
of proof is on the movant, the evidence must be viewed
in the light most favorable to the opponent. . . . When
documents submitted in support of a motion for sum-
mary judgment fail to establish that there is no genuine
issue of material fact, the nonmoving party has no obli-
gation to submit documents establishing the existence
of such an issue. . . . Once the moving party has met
its burden, however, the opposing party must present
evidence that demonstrates the existence of some dis-
puted factual issue. . . . It is not enough, however, for
the opposing party merely to assert the existence of
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such a disputed issue. Mere assertions of fact . . . are
insufficient to establish the existence of a material fact
and, therefore, cannot refute evidence properly pre-
sented to the court under Practice Book § [17-45]. . . .
Our review of the trial court’s decision to grant [a]
motion for summary judgment is plenary.’’ (Internal
quotation marks omitted.) Belevich v. Renaissance I,
LLC, supra, 207 Conn. App. 124.
In Kraus v. Newton, 211 Conn. 191, 558 A.2d 240
(1989), our Supreme Court held that, ‘‘[i]n 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 accumula-
tions 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.’’ Id., 197–98.
The court reasoned that ‘‘[t]o require a landlord or other
inviter to keep walks and steps clear of dangerous accu-
mulations of ice, sleet or snow or to spread sand or
ashes while a storm continues is inexpedient and
impractical.’’ Id., 198. The court also held, however,
that its decision did ‘‘not foreclose submission to the
jury, on a proper evidentiary foundation, of the factual
determinations of whether a storm has ended or
whether a plaintiff’s injury has resulted from new ice
or old ice when the effects of separate storms begin to
converge.’’ Id.
More recently, this court, in Belevich, clarified ‘‘(1)
precisely what a movant for summary judgment must
demonstrate to satisfy its initial burden when relying
on the [ongoing storm] doctrine and (2) any burden-
shifting that may follow.’’ Belevich v. Renaissance I,
LLC, supra, 207 Conn. App. 126. ‘‘Noting the scant
authority from other jurisdictions on the issue of the
ongoing storm doctrine in the context of summary judg-
ment, this court [in Belevich] adopted, as a matter of
Connecticut common law, the approach taken by the
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New York Appellate Division in Meyers v. Big Six
Towers, Inc., 85 App. Div. 3d 877, 877–78, 925 N.Y.S.2d
607 (2011), which held that, ‘[a]s the proponent of the
motion for summary judgment, the defendant ha[s] 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 . . . . [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 . . . .’ ’’ Herrera v. Meadow Hill, Inc., 217
Conn. App. 671, 681, 290 A.3d 377 (2023).
The plaintiff first claims that the court erred in render-
ing summary judgment for the defendant because the
defendant failed to produce any evidence refuting the
plaintiff’s claim that he fell on preexisting ice. Specifi-
cally, the plaintiff argues that ‘‘[i]n its motion for sum-
mary judgment, the only evidence offered by the [defen-
dant] is excerpts of the plaintiff’s deposition and a
police report’’ including the plaintiff’s testimony ‘‘that
it was snowing when he fell.’’ In making this argument,
the plaintiff misstates the nature of the defendant’s
burden on summary judgment under the ongoing storm
doctrine. ‘‘As the proponent of the motion for summary
judgment, the defendant ha[s] 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
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evidence that there was a storm in progress when the
plaintiff fell . . . .’’ (Internal quotation marks omitted.)
Belevich v. Renaissance I, LLC, supra, 207 Conn. App.
127. Once the defendant sustains his burden, the burden
shifts to the plaintiff, at which time the plaintiff must
raise a triable issue of fact as to whether his fall was
caused by a slippery condition that existed prior to the
ongoing storm and whether the defendant had actual
or constructive notice of the allegedly preexisting con-
dition. Id., 129.
We first consider, therefore, whether the trial court
correctly determined that the defendant satisfied its
initial burden in establishing ‘‘prima facie, that it neither
created the snow and ice condition nor had actual or
constructive notice of the condition . . . .’’ (Internal
quotation marks omitted.) Id., 127. In support of its
motion for summary judgment, the defendant submitted
the plaintiff’s deposition testimony that there was a
storm in progress at the time of his fall. Specifically,
the defendant presented excerpts from the plaintiff’s
deposition in which he testified that: (1) it was snowing
when he left the building after his shift ended; (2) it
had started snowing earlier that morning; and (3) when
he left work, it was still snowing and the sidewalk where
he fell was covered with snow. In addition, at oral
argument before this court, the plaintiff conceded that
it was undisputed that there was an ongoing storm at
the time of his fall. Thus, we conclude that the trial
court correctly concluded that the defendant satisfied
its initial burden of establishing, prima facie, that it
neither created the snow and ice condition nor had
actual or constructive notice of the condition. See id.
(‘‘[t]he defendant [may sustain] this burden by present-
ing evidence that there was a storm in progress when
the plaintiff fell’’ (internal quotation marks omitted)).
Accordingly, the burden shifted to the plaintiff to
demonstrate the existence of a genuine issue of material
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fact as to whether the plaintiff’s fall was caused by a
preexisting condition and whether the defendant had
actual or constructive notice of the allegedly preexisting
condition. The plaintiff claims that he satisfied that
burden through his affidavit, deposition transcripts, and
the weather records that he introduced into evidence.
We are not persuaded.
We begin by setting forth the standard adopted by
this court in Belevich regarding the plaintiff’s burden
on summary judgment under the ongoing storm doc-
trine. The court in Belevich, relying on various New
York state court cases, made clear that evidence pre-
sented by a plaintiff to demonstrate the existence of a
genuine issue of material fact cannot require a jury to
resort to conjecture and speculation in order to find
that there was a preexisting slippery condition that
caused the plaintiff to fall. See Campanella v. St. John’s
University, 176 App. Div. 3d 913, 913, 112 N.Y.S.3d 153
(2019) (plaintiff failed to raise triable issue of fact where
‘‘the opinions contained in an affidavit of the plaintiff’s
meteorologist as to when and how the alleged ice patch
was formed were based on speculation and conjec-
ture’’), appeal denied, 35 N.Y.3d 914, 153 N.E.3d 447,
130 N.Y.S.3d 2 (2020); Battaglia v. MDC Concourse
Center, LLC, 175 App. Div. 3d 1026, 1027–28, 108
N.Y.S.3d 607 (2019) (court found that nothing in plain-
tiff’s deposition testimony or any evidence she submit-
ted raised triable issue of fact and, therefore, ‘‘[t]o say
that old ice caused the subject ice patch as opposed to
the storm in progress would require a jury to resort to
conjecture and speculation in order to determine the
cause of the incident’’ (internal quotation marks omit-
ted)), aff’d, 34 N.Y.3d 1164, 144 N.E.3d 367, 121 N.Y.S.3d
757 (2020); Powell v. Cedar Manor Mutual Housing
Corp., 45 App. Div. 3d 749, 750, 844 N.Y.S.2d 890 (2007)
(‘‘plaintiff’s contention that she fell on ‘old ice’ from a
prior storm which was hidden under the new snowfall
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is mere speculation and insufficient to defeat the defen-
dants’ motion for summary judgment’’); DeVito v. Har-
rison House Associates, 41 App. Div. 3d 420, 421, 837
N.Y.S.2d 726 (2007) (‘‘plaintiff’s allegations that the ice
which allegedly caused her accident had been present
for ‘a day or two,’ or that it was ‘from another time,’
were insufficient to raise a triable issue of fact as to
whether she fell on ‘old’ ice’’). Furthermore, the court
stated that, ‘‘under the New York burden-shifting
approach that we expressly adopt today, even [e]vi-
dence that there was ice in the general vicinity of the
accident prior to the storm is insufficient to raise a
triable issue of fact as to whether the defendant had
actual or constructive notice of the condition of the
specific area within the parking lot where the plaintiff
fell . . . .’’ (Internal quotation marks omitted.) Belev-
ich v. Renaissance I, LLC, supra, 207 Conn. App. 131.
The plaintiff contends that his deposition testimony
and affidavit, in conjunction with the weather records
he submitted in opposition to the defendant’s motion for
summary judgment, created a genuine issue of material
fact with respect to whether he fell on preexisting ice
and whether the defendant had actual or constructive
notice of that condition. First, the plaintiff argues that
his deposition testimony and his affidavit demonstrate
that ‘‘the ice upon which he fell was preexisting.’’ At
his deposition, the plaintiff testified that he ‘‘slipped on
a patch of ice that was underneath the snow.’’ Addition-
ally, he testified that it had been snowing throughout
the morning while he was working and that, when he
left work, it was actively snowing and there was an
accumulation of snow on the ground from the storm.
The plaintiff further testified that he did not know how
thick the ice he slipped on was, but that his best guess
was that it was less than one inch thick, and that it was
clear in color. The plaintiff also testified that he did not
know when the ice first appeared, how long it had been
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Carty v. Merchant 99-111 Founders, LLC

on the ground before his fall, or how it formed. In
response to a question as to how the ice formed, the
plaintiff responded: ‘‘I don’t think I can say [that] it was
not due to the weather conditions that [occurred] on
that day.’’ Although the plaintiff attempted to walk back
that testimony, stating that the ice ‘‘did not look like
it was caused’’ by the current storm, he nevertheless
admitted that he was ‘‘not sure how it got there.’’ Last,
the plaintiff testified at his deposition that during the
week leading up to his fall he had observed water, not
ice, on the sidewalk in the general area where he fell. In
his subsequent affidavit in opposition to the defendant’s
motion for summary judgment, however, the plaintiff
contradicted that deposition testimony and swore that
a few days prior to his fall, he saw ice and water on
the sidewalk in the area where he fell.
In addition to his deposition testimony and affidavit,
the plaintiff also points to the weather records he sub-
mitted in opposition to the defendant’s motion for sum-
mary judgment. He contends that those records support
his assertion that, ‘‘in the week prior to the fall, there
was precipitation that coincided with temperatures
above and below . . . freezing levels.’’ The plaintiff
offered no expert testimony interpreting or analyzing
those weather records, however, and the records them-
selves constitute no more than raw weather data,
including temperature ranges, precipitation levels, pres-
sure levels, and wind levels during the period leading
up to the storm and the plaintiff’s fall.
On the basis of our plenary review of the entire record
that was before the court, we conclude that the trial
court correctly determined that the plaintiff failed to
satisfy his burden of presenting evidence sufficient to
create a genuine issue of material fact with respect to
whether the ice that caused him to fall was present
prior to the advent of the storm that was ongoing when
he fell. The evidence put forth by the plaintiff would,
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at best, require a jury to speculate on that point. Neither
the plaintiff nor any other witness testified that the ice
that caused him to fall was present prior to the ongoing
storm. On the contrary, the plaintiff admitted during
his deposition that he was ‘‘not sure how [the ice] got
there’’ and that he could not say that it was not due to
the weather conditions that had occurred on that day.
The weather records that the plaintiff submitted also
failed to create a genuine issue of material fact with
respect to whether the ice that caused him to fall was
present prior to the storm. At best, those records show
that it is possible that surface water may have been
present in the geographic region to which the records
pertained and that such water conceivably could have
frozen at one point or another somewhere within that
region. Asking a jury to conclude on the basis of those
records that the specific ice patch that caused the plain-
tiff to fall was formed from precipitation that had fallen
prior to the day of the storm, however, would require
a jury to engage in the kind of speculation and conjec-
ture that this court has held is impermissible under the
ongoing storm doctrine. See Belevich v. Renaissance
I, LLC, supra, 207 Conn. App. 130–31.
Last, we note that, although the plaintiff testified at
his deposition that, in the week before he fell, he saw
water in the area where he fell and further swore in
his affidavit that, in the week before he fell, he saw ice
on the sidewalk in the area where he fell, the plaintiff
did not claim that he had observed ice in the precise
area where he fell on the sidewalk before the storm
began or that he saw ice at that location at a time when
it likely would have remained in that condition during
the time leading up to his fall. This court has held
that, ‘‘even [e]vidence that there was ice in the general
vicinity of the accident prior to the storm is insufficient
to raise a triable issue of fact as to whether the defen-
dant had actual or constructive notice of the condition
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Carty v. Merchant 99-111 Founders, LLC

of the specific area . . . where the plaintiff fell . . . .’’
(Internal quotation marks omitted.) Id., 131.
As a result, we conclude that the trial court properly
granted the defendant’s motion for summary judgment
because the plaintiff failed to satisfy his burden of rais-
ing a genuine issue of material fact with respect to
whether the condition that caused him to sustain his
alleged injuries existed prior to the storm that was
ongoing at the time of his fall, or whether the defendant
had actual or constructive notice of the condition of
the sidewalk where the plaintiff fell.
The judgment is affirmed.
In this opinion the other judges concurred.