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Ask Ely Your Own Question
Ely
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 101063
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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This past winter I was in Westchester county Ny in

Customer Question

This past winter I was in Westchester county Ny in Scarsdale. It was after a snow fall and about 11:45 am, I saw a deli and pulled up a slight hill into their parking lot. It turns out the Deli is part of a chain of delis in ny. This was a new deli that had not opened up yet. However there were no signs indicating that they were not open as of yet. So finding out they were not open when I reached the top of the hill to parking lot. I turned around to head back out. As i Reached the top of the hill my car started sliding down the hill into traffic nothing I could do but see what was going to hit me (Very busy road). turns out I hit a bus in a t-bone fashion. They had cleared their sidewalk of the snowbut not the driveway which was packed snow and Ice..they claim they had no responsibility to clear it as they were not open for business until the grand opening in a couple days.
I have pictures of the damage and a statement from the bus driver that my vehicle was just sliding down the hill.
I had a few thousand dollars in damages and a banged up knee(did not require medical treatment). Do I have a case to recoup my damages.
Submitted: 1 year ago.
Category: Legal
Expert:  Ely replied 1 year ago.

Hello and welcome to JustAnswer. Please note: (A) This is general information and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms; and (B) please wait to rate until I ask you to do so. It may take a few replies for me to be able to render an complete answer. I will let you know when I do.

I a sorry to hear about this situation. Can you please tell me:

1) Was there police on the scene?
2) Did you receive a traffic ticket? If so, how was that settled?
3) Is the bus company pursuing you?

This is not an answer, but an information request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.

Customer: replied 1 year ago.
No police on scene, Bus company representative and driver
No ticket issued
My insurance paid bus company damage.
Expert:  Ely replied 1 year ago.
Thank you.
On this website, I do not always get to give good news, and this is one of these times. I understand that hearing things less than optimal is not easy, and I empathize. Thanks in advance for not "shooting the messenger."
This becomes a question of duty to you by them. More specifically, a duty of a property owner to an invitee. An invitee is a person who is invited to land by the possessor of the land as a member of the public or one who is invited to the land for the purpose of business dealings with the possessor of the land.
The duty owed to an invitee is to use due care to keep the property in a reasonably safe condition so that invitees will not unnecessarily be exposed to danger (see Haefeli v Woodrich Eng. Co., 255 N.Y. 442, 448, supra; Restatement, Torts 2d, §§ 341A, 343, 343A; Prosser, op. cit., § 61, at pp 392-394). This includes an obligation to warn an invitee of any hidden danger if the possessor is unable to maintain the property in a reasonably safe condition (see Schwab v Rubel Corp., 286 N.Y. 525, 529-530; Prosser, op. cit., at p 393). Basso v. Miller, 40 NY 2d 233 - NY: Court of Appeals 1976.
So the question becomes:
1) DID you as a reasonable person have reason to think that they would be open, or, that at least their property was safe to go on? Reasonably?
2) DID they have a duty to an invitee or a would-be invitee even if they were not open?
3) IS one an invitee who simply uses their property for a driving correction, but does not come into the store?
I am afraid that these questions - only the Judge or Jury can decide. I am going to be honest however, because they were closed, and because you did not actually patronize the business, this does hurt the case. It would be a pretty weak case.
Please note: If I tell you simply what you wish to hear, this would be unfair to you. I want to be honest with you and sometimes this means providing information that is not optimal. Negative ratings are reserved for experts who are rude or for erroneous information. Please rate me on the quality of my information; do not punish me for my honesty.
I hope this helps and clarifies. Gentle Reminder: Use the SEND or REPLY button to keep chatting, or please RATE when finished. You may always ask follow ups at no charge after rating. Kindly rate my answer as one of TOP THREE FACES/STARS and then SUBMIT, as this is how I get credit for my time with you. Rating my answer the bottom two faces/stars or failing to submit the rating does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith.
Customer: replied 1 year ago.
Thank you for your initial response..I had pulled into this Store because I was going to get lunch. There was no indication they
were not open for business. and the sidewalk was shoveled ,but not the driveway. I have pictures to document this situation.
a reasonable assumption would be that a Jewish Deli would be open at 11:30 am..But they had just finished building and the grand opening had not occurred. Sounds like 50/50 shot...Regards,
Expert:  Ely replied 1 year ago.
Right, it is very much a subjective shot.
Now, if someone in your situation was going to get lunch, and the Judge/Jury believes that, this increases the odds, since then one is more likely to be seen as an invitee.
Gentle Reminder: Please, use REPLY or SEND button to keep chatting, or RATE POSITIVELY and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.