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By:  Betsy G. Ramos, Esq and Kristen Mowery

A landowner holds the general duty to keep its premises reasonably clear of hazards “for the benefit of business invitees . . . includ[ing] keeping the premises reasonably safe from natural accumulations of ice and snow.” Laine v. Speedway, LLC, 177 A.3d 1227, 1229 (Del. 2018). However, many jurisdictions have recognized a defense or exception to this general duty of care known as the doctrine of storm in progress, ongoing storm, or continuing storm, which permits the landowner to await the end of the storm and a reasonable time thereafter to remove ice and snow from its premises. Id. (quoting Young v. Saroukos, 185 A.2d 274, 282 (Del. Super. Ct. 1962)).

Ordinary Standard of Reasonable Care

Some courts follow the general rule that a “property owner has a duty to maintain its property in a reasonably safe condition for business invitees,” including weather-related conditions. Dehoyos v. Golden Manor Apts., 101 N.E.3d 874, 877 (Ind. Ct. App. 2018). Thus, when snow and ice land on a business owner’s premises, it almost always becomes a fact question as to whether the owner exercised reasonable care in the handling of the unsafe condition.

Particularly, it is often a question for the jury to decide whether, and if so, when, the landowner became aware of the condition. For example, in 2011, the Indiana Court of Appeals held that summary judgment was inappropriate because a fact question existed about whether the owners were aware of the ice hazard and whether they took reasonable steps to fix it. Bell v. Grandville Coop., Inc., 950 N.E.2d 747, 753–54 (Ind. Ct. App. 2011).

Another state that has adopted the general duty of care standard is Massachusetts. Interestingly, Massachusetts once followed the “natural accumulation” rule, but since 2010, it has followed a standard similar to that in Indiana. Woods v. Naumkeag Steam Cotton Co., 134 Mass. 357, 360–61 (Mass. 1883). Massachusetts now applies to property owners the traditional duty of reasonable care to the accumulation of snow and ice, but it does not apply the exception when storms are ongoing at the time of injury. Papadopoulos v. Target Corp., 457 Mass. 368, 383–84 (Mass. 2010). See also Santolucito v. Demoulas Super Mkts., Inc., No. MICV2008-00610-F, 2012 Mass. Super. Lexis 274, at *1, 7–9 (Mass. Super. Ct. Sept. 28, 2012) (applying standard of reasonable care).

Maine is one of, if not the only, states to reject the storm in progress rule explicitly. In a 2001 Maine Supreme Judicial Court decision, the court stated that the storm in progress doctrine “appears inconsistent with the duty of reasonable care owed by a business owner reasonably anticipating a significant number of invitees during a Maine snow storm.” Budzko v. One City Center Assocs. Ltd. P’ship, 767 A.2d 310, 314, n.2 (Me. 2001).

Natural Accumulation Rule

Some states (including Ohio and Illinois), however, still follow the natural accumulation rule, which has been described as “an older, harsher rule . . . that an owner cannot be held liable for accidents stemming solely from the natural accumulation of ice and snow.” Turmel v. Univ. of Vt., No. S0980-01, 2004 Vt. Super. Lexis 65, at *5 (Vt. Super. Ct. Apr. 20, 2004). As for Illinois law, see Krywin v. Chicago Trans. Auth., 238 Ill. 2d 215, 227–28 (Ill. 2010). The rule stands for the premise that there must be some sort of “artificial accumulation,” meaning that something must have been added to the causal chain, such as “a defective gutter creating an artificial ice patch.” Id.

Ohio continues to follow the natural accumulation rule and has described it as “an owner of land ordinarily owes no duty to business invitees to remove natural accumulations of ice and snow from the walkways on the premises or to warn the invitee of the dangers associated therewith.” Dailey v. Mayo Family Ltd. P’ship., 115 Ohio App. 3d 112, 117 (Ohio App. Ct. 1996). Thus, where snowfalls or areas of ice are entirely naturally created, a business owner owes no duty to its business invitees to remove the hazard or warn of the hazard’s existence.

Exception to Ordinary Care: Storm in Progress Rule

Most states recognize the exception to the general standard of ordinary care owed to business invitees and allow a reasonable amount of time after a storm for a landowner to remove the snow and ice. However, not all states do so as explicitly as others.

For example, the New Jersey Superior Court expressed its continuing recognition of the storm in progress doctrine in 2015, stating that “to impose a duty on the landlord to clear the walkway in the midst of a snow storm would violate ‘an abiding sense of basic fairness under all of the circumstances in light of the considerations of public policy.’” Holmes v. INCAA-Carroll St. Houses Corp., No. A-1958-13, 2015 N.J. Super. Unpub. Lexis 1280, at *3–4 (N.J. Super. Ct. App. Div. June 2, 2015) (citation omitted). See also Quiles v. Hector, No. A-0023-16, 2018 N.J. Super. Unpub. Lexis 124 (N.J. Super. Ct. App. Div. Jan. 19, 2018); Hill v. St. Barnabas Med. Ctr., No. A-0148-17, 2018 N.J. Super. Unpub. Lexis 1699 (N.J. Super. Ct. App. Div. July 16, 2018).

The seminal case in Iowa is Reuter v. Iowa Trust & Savings Bank, 57 N.W.2d 225 (Iowa 1953). In Rochford v. G.K. Dev., Inc., the Iowa Court of Appeals expressed that it continued to apply the doctrine. 845 N.W.2d 715 (Iowa Ct. App. 2014). But see Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699, 712 (Iowa 2016) (explaining that it will not decide whether Iowa’s adoption of the Restatement Third of Torts §7 requires an abandonment of the storm in progress doctrine because the parties did not raise the issue, nor did the lower courts address it). It also held that “inclement winter weather,” including freezing rain, is covered by the doctrine. 845 N.W.2d at 718. Hence, its application is not limited to only snow or ice. Id.

More recently, in 2018, the Delaware Supreme Court illustrated that it still recognized the doctrine. In Laine v. Speedway, LLC, the court stated: “[I]t is reasonable for a business owner to wait until a storm has ended and a reasonable time thereafter to remove natural accumulations of ice and snow in the absence of unusual circumstances.” 177 A.3d 1227, 1229–31 (Del. 2018). Further, Delaware holds that a business landowner’s duty to warn of any icy conditions is also suspended while the storm is in progress. Id. at 1233.

Other states that have expressly adopted a form of the doctrine include New York (Gervasi v. Blagojevic, 158 A.D.3d 613 (N.Y. App. Ct. 2018); see also Brandimarte v. Liat Holding Corp., 158 A.D.3d 664 (N.Y. App. Ct. 2018)); Connecticut (Kraus v. Newton, 558 A.2d 240 (Conn. 1989); see also Thebeault v. Griswold Hills of Newington L.P., No. HHDCV156063238S, 2018 Conn. Super. Lexis 164 (Conn. Super. Ct. Jan. 25, 2018)); and Pennsylvania (the hills and ridges doctrine) (Collins v. Philadelphia Suburban Development Corp., 179 A.3d 69, 73–74 (Pa. Super. Ct. 2018) (quoting Williams v. Shultz, 240 A.2d 812, 813–14 (Pa. 1968). The Collins court stated that “the only duty upon the property owner or tenant is to act within a reasonable time after notice to remove [the snow and ice] when it is in a dangerous condition.” Id. at 74 (quoting Biernacki v. Presque Isle Condominiums Unit Owners Ass’n, Inc., 828 A.2d 1114, 1117 (Pa. Super. Ct. 2003)).

Also included in the states that have expressly adopted a form of the doctrine are West Virginia (see Adams v. United States, No. 5:11-0660, 2013 U.S. Dist. Lexis 125968, at *22–27 (S.D. W. Va. July 24, 2013)); Minnesota (Mattson v. St. Luke’s Hospital, 252 Minn. 230, 233–35 (Minn. 1958)); Virginia (Walker v. Memorial Hospital, 187 Va. 5, 22–24 (Va. 1948)); Kansas (Agnew v. Dillons, Inc., 16 Kan. App. 2d 298, 303–04 (Kan. App. Ct. 1991)); Rhode Island (Munsill v. United States, 14 F. Supp. 2d 214, 220–21 (D.R.I. 1998); see also Benaski v. Weinberg, 899 A.2d 499, 503 (R.I. 2006) (recognition of the ongoing storm doctrine in Rhode Island), and Sullo v. Greenberg, 68 A.3d 404, 407 (R.I. 2013)); and Vermont (Turmel, 2004 Vt. Super. Lexis 65, at *4).

Conclusion

A number of states appear to recognize some sort of an exception to the general duty of care owed to business invitees when an injury occurs on snow or ice while a storm is ongoing. The application of this doctrine can be a very useful tool in the defense of premises liability cases involving an injury occurring due to snow or ice.

This article is co-written by Kristen Mowery, who is a law student attending Drexel University Thomas R. Kline School of Law. Her experience includes clerkships with Capehart Scatchard PA (2018) and the law firm of Klineburger & Nussey (2017). This article was featured in “The Voice,” DRI The Voice of the Defense Bar. To view it, please click here. 

Plaintiff William Quail, as administrator for the Estate of Mary Quail, filed a wrongful death suit and survival action based upon his wife’s death that he claims was caused by an incident in a supermarket. The issue in Quail v. Shop-Rite Supermarkets, Inc., 2018 N.J. Super. LEXIS 86 (App. Div. June 4, 2018) was whether the medical examiner’s death certificate was admissible to prove the cause of her death without a witness to testify as to the opinions in the certificate. In a published decision, the Appellate Division ruled that the death certificate was not admissible.

Plaintiff and his wife were shopping at the supermarket and his wife was using a motorized cart. As she went down a narrow aisle, her cart’s basket caught on a cash register station, which caused the station to fall on her and injure her leg. Four days later she died due to complications.

The medical examiner inspected her body and issued a Certificate of Death which listed her death as an “accident” and the cause as “complications of blunt trauma of [the] right lower extremity.” His associated report reiterated these conclusions. Plaintiff, who did not obtain a medical expert, relied upon these opinions to establish medical causation of her death.

Plaintiff contended that the report was admissible under the State Medical Examiner Act or as a hearsay exception for vital statistics, N.J.R.E. 803(c)(9). The court also considered whether the “net opinion” doctrine and N.J.R.E. 808, which disallowed the admission of certain disputed complex opinions embedded in otherwise-admissible hearsay records, would require the exclusion of the examiner’s hearsay opinions.

The trial court rejected the reports and dismissed the lawsuit on summary judgment, holding that the statements on the Certificate of Death and the report amounted to inadmissible hearsay. Quail appealed and the Appellate Division affirmed the trial court’s ruling.

The court held that the Medical Examiner Act does not provide an absolute right to a civil plaintiff to admit the full contents of the Certificate of Death. Further, it held that the hearsay opinions contained within the Certificate were inadmissible hearsay. The Appellate Division also found that the trial court properly exercised its discretion to decline to reopen and extend discovery after declaring the Certificate inadmissible. Last, the Court uphold the summary judgment order, in light of plaintiff’s lack of necessary expert proof of medical causation.

Plaintiff Dwight Morris was at his bank to make a withdrawal when the male in front of him handed the teller a robbery note. The teller handed the robber a stack of bills and the robber then left the bank. The teller called 9-1-1 and, when the police came, the plaintiff claims that they questioned him, treating him as if he was the “perpetrator.” In Morris v. T.D. Bank, 2018 WL 1720652 (App. Div. April 10, 2018), the plaintiff Morris sued the bank, asking the court to impose liability based upon a “negligent misidentification” cause of action. The Appellate Division, in a published decision, refused to recognize this claim as a viable cause of action under New Jersey law.

The plaintiff, an African American male, had entered the bank’s Union Township branch to make a withdrawal. Unbeknown to him, the male in front of him (also an African American male), had approached the teller with a slip which stated: “[b]ig bills please this is a hold up.” The teller handed the robber the bills and the robber walked out of the bank.

While plaintiff was standing before the teller, another bank employee exited the break room, saw the note, discerned that it had to do with a robbery, and called 9-1-1. She thought that the plaintiff was the robber and told the police that the robber, an African American male, was still in the bank. While she was on the phone with the operator, other employees locked the bank’s doors. Meanwhile, plaintiff took a seat in the bank’s lobby area.

According to the bank’s employee handbook, in the event of a robbery, employees were directed as follows: “FOLLOWING A ROBBERY only AFTER the Robber has left … Call Police to Report Robbery.” The plaintiff claimed that the bank employee was negligent for her failure to follow this policy.

Within minutes after the 9-1-1 call, the police arrived and the bank’s doors were unlocked. The police claim that they questioned plaintiff at the scene as a witness and he provided information about the suspect. According to the police, the plaintiff remained calm during the questioning and the police officer testified in his deposition that the plaintiff should have known he was not under arrest.

After plaintiff left the bank, he returned home but was “pretty upset about the situation.” Six months after the incident, he sought counselling from a social worker due to “emotional distress” and “fear of the police.” The social worker diagnosed the plaintiff with post-traumatic stress disorder and opined that his condition was related to the robber.

Plaintiff claimed that the bank breached its duty to provide a reasonably safe environment for its customers, “including protection from foreseeable criminal activity on and around the business’ premises.” Plaintiff contended that the defendant bank breached its duty because “it failed to properly train its employees not to call 9-1-1 until after the robber left the bank,” which led the police to treat him as the “perpetrator,” point their weapons at him, causing his PTSD.

The trial court granted summary judgment to the defendants, finding that the bank did not breach any duty owed to the plaintiff to “maintain reasonably safe premises or the duty to exercise reasonable care in the supervision of its employees.” The Appellate Division affirmed.

The key to plaintiff’s negligence argument was the breach of the internal policy by the bank’s employee. However, the Appellate Division pointed out that, based upon prior case law, “a defendant’s internal policies – standing alone – cannot demonstrate an applicable standard of care.” Further, the Court noted that, regardless, the policy was not actually violated. In fact, the 9-1-1 call was not made until the robber had left the bank. Thus, even if a violation of the bank’s policy could be used to establish a negligence claim against the bank, the policy was not breached.

As the trial court explained, the plaintiff was essentially asking the court to impose liability for “negligent misidentification.” The Appellate Division emphasized that the New Jersey courts have never recognized such a cause of action. Based upon public policy in support of citizens cooperating with law enforcement, recognizing such a claim would have a chilling effect on criminal investigations.

To the contrary, the Court noted that case law has found a potential breach of duty to its customers when a business fails to summon police. Prior cases have found a business potentially liable when police have not been called based upon criminal activity of others.

The Appellate Division refused to recognize this claim as a cause of action because it “is inconsistent with our State’s strong public policy encouraging citizen cooperation with law enforcement officials in the investigation of criminal activity.” Hence, the Court affirmed the trial court’s decision, dismissing the plaintiff’s negligence cause of action.