IN THE SUPREME COURT OF THE STATE OF DELAWARE
MICHAEL LAINE, §
§ No. 149, 2017
Plaintiff-Below, §
Appellant, § Court Below: Superior Court
§ of the State of Delaware
v. §
§ C.A. No.: K15C-12-008
SPEEDWAY, LLC, §
§
Defendant-Below, §
Appellee. §
Submitted: October 25, 2017
Decided: January 8, 2018
Before STRINE, Chief Justice; VALIHURA, VAUGHN, SEITZ, and
TRAYNOR, Justices, constituting the Court en Banc.
Upon appeal from the Superior Court. AFFIRMED.
Nicholas H. Rodriguez, Esquire, Schmittinger & Rodriguez, P.A., Dover, Delaware,
for Appellant, Michael Laine.
Jessica L. Tyler, Esquire, and Sarah B. Cole, Esquire (Argued), Marshall, Dennehey,
Warner, Coleman & Goggin, Wilmington, Delaware, for Appellee, Speedway, LLC.
VAUGHN, Justice:
The Plaintiff/Appellant, Michael Laine, slipped and fell on ice near a gas
pump on the premises of a convenience store-gasoline station operated by the
Defendant/Appellee, Speedway, LLC (“Speedway”) in Dover. He was the driver
of a Modern Maturity Center shuttle bus and slipped when he stepped off the shuttle
to fill its tank with gasoline. The fall caused him to sustain serious physical injuries.
The ice was caused by a light, freezing rain which was then falling. Mr. Laine filed
suit against Speedway, alleging that negligence on Speedway’s part was the
proximate cause of his injuries. The Superior Court granted summary judgment for
Speedway, holding that under the continuing storm doctrine Speedway was
permitted to wait until the freezing rain had ended and a reasonable time thereafter
before clearing ice from its gasoline station surface. There are two questions on
appeal. The first is whether a business owner that remains open during a winter
storm should be able to avail itself of the continuing storm doctrine at all, that is;
whether we should continue to recognize the doctrine. The second is whether the
continuing storm doctrine applies to the facts of this case. For the reasons which
follow, we have concluded that the continuing storm doctrine should continue to be
recognized and that it does apply to the facts of this case. The Superior Court is
affirmed.
1
I
On January 10, 2014, Speedway’s convenience store-gasoline station in
Dover opened at 6:00 a.m. Two employees were on hand, Jessica Lorilla and John
Tetuan.
According to weather records, rain was falling at 6:54 a.m. The previous
weather reading was taken at 6:20 a.m. and did not show rain falling. Therefore, it
can be inferred that rain began falling sometime between 6:20 a.m. and 6:54 a.m.
The temperature when those readings were taken was 32 degrees Fahrenheit. The
rain was a freezing rain which continued throughout the day.
At 7:00 a.m. Ms. Lorilla slipped on ice outside the front door of the
convenience store. She notified Mr. Tetuan, who was to call the ice and snow
removal company used by Speedway. Ms. Lorilla worked until 11:00 a.m. or 1:00
p.m. and has no recollection of the ice and snow removal company being there, but
there is a record of an invoice from the company for work done sometime that day.
The two employees took no further steps concerning ice outside the store.
Meanwhile, at 7:05 a.m. Mr. Laine, a shuttle bus driver for Modern Maturity
Center, began driving a shuttle bus from the Center to Speedway’s gasoline station.
In his deposition, Mr. Laine testified that he recalled that the roads from the Modern
2
Maturity Center to Speedway’s property were wet, and a light rain or drizzle was
falling. After stopping the shuttle bus at a gas pump at Speedway’s gas station, Mr.
Laine stepped out, slipped on ice and fell. It is undisputed that the ice upon which
Mr. Laine slipped was caused by the rain freezing upon contact with the gasoline
station surface.
Another customer reported Mr. Laine’s fall to Ms. Lorilla and she came out
to assist him. An incident report prepared that day records Mr. Laine’s fall as
occurring at 7:15 a.m. Mr. Laine carried out his Modern Maturity Center duties for
the rest of that day but later began to feel pain. Ultimately, it was determined that
the fall caused him to suffer serious physical injuries, and he has not been able to
return to work.
Schools remained open that day, and there is no evidence of businesses
closing.
Mr. Laine filed suit against Speedway, alleging negligence on its part for
failure to maintain the premises in a reasonably safe condition, failure to make
reasonable inspections of the premises, failure to warn him of the hazardous
conditions that existed, and failure to remove ice at the pump where he fell.
Speedway filed a motion for summary judgment, arguing that under the continuing
3
storm doctrine it was permitted to wait until the freezing rain ended and a reasonable
time thereafter before removing the ice from its premises. The Superior Court
granted the motion, finding that the continuing storm doctrine was a valid defense
to Mr. Laine’s claims of negligence. This appeal followed.
II
AThis Court reviews de novo the Superior Court=s grant or denial of summary
judgment >to determine whether, viewing the facts in the light most favorable to the
nonmoving party, the moving party has demonstrated that there are no material
issues of fact in dispute and that the moving party is entitled to judgment as a matter
of law.=@1
III
Generally, a landowner has a duty to exercise reasonable care in keeping its
premises safe for the benefit of business invitees. 2 This includes keeping the
premises reasonably safe from natural accumulations of ice and snow.3 In Young v.
Saroukos, the Superior Court recognized that the landowner’s duty to keep its
1
Brown v. United Water Del., Inc., 3 A.3d 272, 275 (Del. 2010) (quoting Estate of Rae v. Murphy,
956 A.2d 1266, 1269–70 (Del. 2008)).
2
Hamm v. Ramunno, 281 A.2d 601, 603 (Del. 1971).
3
Monroe Park Apts., Corp. v. Bennett, 232 A.2d 105, 108 (Del. 1967).
4
premises reasonably safe from natural accumulations of ice and snow was subject to
a rule known as the continuing storm or storm in progress doctrine.4
In Young, the plaintiff slipped on ice and snow about 9:30 p.m. on March 4,
1960 while proceeding down a ramp entrance toward the door of her basement
apartment. Seven or eight inches of snow fell on March 3 and March 4, with snow
flurries continuing late into the evening of March 4. The weather conditions on
March 4 were cold and windy, and snow was drifting. After considering authorities
from other jurisdictions, the Superior Court adopted the continuing storm doctrine,
stating:
The authorities are in substantial accord in support of the rule that a
business establishment, landlord, carrier, or other inviter, in the absence
of unusual circumstances, is permitted to await the end of the storm and
a reasonable time thereafter to remove ice and snow from an outdoor
entrance walk, platform, or steps. The general controlling principle is
that changing conditions due to the pending storm render it inexpedient
and impracticable to take earlier effective action . . . .5
Under the continuing storm doctrine, it 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. The
4
Young v. Saroukos, 185 A.2d 274 (Del. Super. Ct. 1962).
5
Id. at 165 (quoting Walker v. Memorial Hospital, 45 S.E.2d 898, 902 (Va. 1948)).
5
rationale for the rule, as stated in Young, is that it is “inexpedient and impracticable
to take earlier effective action.”6
Since Young, the Superior Court has discussed the continuing storm doctrine
in a number of cases. In Woods v. Prices Corner Shopping Center Merchants
Ass’n, the plaintiff slipped and fell on ice and snow in the parking lot of the Prices
Corner Shopping Center. 7 It snowed three times in the week before her fall.
Temperatures were in the 0 to 10 degrees Fahrenheit range. No effort had been
made to remove ice and snow. In denying a defense motion for summary judgment,
the court held that a business owner’s duty to keep its business premises safe
includes keeping the premises safe from natural accumulations of ice and snow, that
the owner is entitled to wait until the end of a snow storm and a reasonable time
thereafter to remove ice and snow, and that the reasonableness of any delay should
be treated as any question of fact.
In Kovach v. Brandywine Innkeepers, Ltd. P’shp, the plaintiff slipped on an
icy, snowy surface in the defendant’s parking lot during a snow storm. 8 The
Superior Court granted summary judgment for the defendant under the continuing
6
Id.
7
Woods v. Prices Corner Shopping Center Merchants Ass’n, 541 A.2d 574 (Del. Super. Ct.
1988).
8
Kovach v. Brandywine Innkeepers, Ltd. P’shp, 2001 WL 1198944 (Del. Super. Ct. Oct. 1, 2001).
6
storm doctrine. In doing so, the court rejected a contention the defendant assumed
a duty to make the parking lot safe by beginning snow removal operations while the
storm was still in progress.
In Morris v. Theta Vest, Inc., the plaintiff slipped and fell on ice just outside
his landlord’s business premises. 9 Witnesses described precipitation which was
falling at the time as freezing rain or sleet. It was undisputed that the storm was
ongoing when the plaintiff fell. The Superior Court granted summary judgment for
the defendant under the continuing storm doctrine. The landlord had salted the area
about five or six hours before the plaintiff fell. The court rejected the plaintiff’s
contention that by salting the area, the landlord had assumed a duty to make the
premises safe. Morris was affirmed by this Court on appeal.10
In Elder v. Dover Downs, Inc., the plaintiff slipped and fell on a patch of ice
which was obscured by snow in a bus stop area in Dover Downs’ parking lot.11 Her
fall occurred at approximately 1:30 p.m. on January 30, 2010. A snow storm began
around 10:00 a.m. on January 30 and lasted until the early morning hours of the next
day. The Superior Court again granted summary judgment for the defendant under
9
Morris v. Theta Vest, Inc., 2009 WL 693253 (Del. Super. Ct. Mar. 10, 2009).
10
Morris v. Theta Vest, Inc., 2009 WL 2246777 (Del. Supr.).
11
Elder v. Dover Downs, Inc., 2012 WL 2553091 (Del. Super. Ct. July 2, 2012).
7
the continuing storm doctrine. The plaintiff argued that it was not snowing when
she fell. The court rejected the contention that a lull interrupted a continuing storm.
In Schnares v. General Floor Indus., Inc., the plaintiff slipped and fell on ice
in the defendants’ parking lot.12 The Superior Court denied summary judgment for
the defendants on the ground that there was a dispute of fact as to whether the
plaintiff’s fall came before or after the storm involved there began.
In Demby v. Del. Racing Ass’n, the plaintiff slipped and fell on ice at Delaware
Park on December 14, 2013.13 Weather records indicated that a storm arrived in the
afternoon of December 14, 2013 with weather conditions alternating between light
snow, freezing rain, and heavy rain from 2:40 p.m. through midnight. The plaintiff
fell at 8:41 p.m. A surveillance video showed that freezing rain was falling at the
time the plaintiff fell. The plaintiff argued that the continuing storm doctrine did
not apply because it was not snowing when she fell. The Superior Court rejected
the plaintiff’s contention that the continuing storm doctrine applied only to falling
snow and held that it also applied to ice caused by freezing rain.
In Cash v. East Coast Prop. Mgmt., Inc., the plaintiff slipped and fell on ice
on a sidewalk at an apartment building.14 The ice was caused by falling rain. The
12
Schnares v. General Floor Indus., Inc., 2015 WL 5178403 (Del. Super. Ct. Sept. 3, 2015).
13
Demby v. Delaware Racing Ass’n, 2016 WL 399136 (Del. Super. Ct. Jan. 28, 2016).
14
Cash v. East Coast Prop. Mgmt., Inc., 2010 WL 2336867 (Del. Super Ct. June 8, 2010).
8
Superior Court again granted summary judgment for the defendant based on the
continuing storm doctrine. Cash was affirmed by this Court on appeal.15
These cases illustrate that the continuing storm doctrine has been applied
consistently by the Superior Court since first recognized in Young, and this Court
has affirmed at least two Superior Court decisions granting summary judgment to
the defendant based on the doctrine where the ice was formed by rain or sleet.
There is no contrary Delaware authority. The continuing storm doctrine has been
recognized in many jurisdictions.16
IV
Despite the widespread acceptance of the continuing storm doctrine, the
appellant’s first contention is a direct challenge to the continuing storm doctrine.
He contends that when a business decides to remain open during a storm, it should
not be able to avail itself of the continuing storm doctrine. Where a business
decides to remain open during a storm, the appellant argues, its conduct should be
judged by the general rule that a business owner has a duty to keep its premises
15
Cash v. East Coast Prop. Mgmt., Inc., 2010 WL 4272925 (Del. Supr.).
16
Kraus v. Newton, 558 A.2d 240, 243–244 (Conn. 1989); Reuter v. Iowa Trust & Sav. Bank, 57
N.W.2d 225, 227 (Iowa 1953); Mattson v. St. Luke’s Hospital of St. Paul, 89 N.W.2d 743, 745
(Minn. 1958); Walker v. Memorial Hospital, 45 S.E.2d 898, 902 (Va. 1948); Agnew v. Dillons,
Inc., 833 P.2d 1049, 1054 (Kan. Ct. App. 1991); Fusco v. Stewart’s Ice Cream Company, 610
N.Y.S.2d 642, 642 (N.Y. App. Div. 1994).
9
reasonably safe for its business invitees. In support of this contention, he argues
that, unlike conditions which existed when Young was decided, we now live in an
era in which commercial and residential property owners contract with companies
that have highly mechanized snow and ice removal equipment. Such companies,
the appellant argues, provide their services based on the weather, so that our ability
to attend work, school, appointments, and recreational functions is rarely delayed.
The appellant also argues that in this particular case, the two employees had a duty
to inspect the premises for icing and a duty to warn customers of the ice through the
use of cones or tape, or by simply deciding not to remain open.
In the alternative, the appellant argues that extending the continuing storm
doctrine to a rain event is a huge departure from the facts of Young, and the doctrine
should be limited to severe storms like the snow storm in that case.
If the decision of the Superior Court is allowed to stand, the appellant
contends, two undesirable results will occur. First, any plaintiff injured in any
weather event will not be able to recover for his or her injuries. Second, the
landowner may well be lax in its duty to make safe any dangerous condition on the
land caused by a weather-related event, knowing that if the cause of injury is
10
weather-related, the owner will be relieved of its duty to make the premises
reasonably safe.
The appellee contends that the Superior Court correctly applied the continuing
storm doctrine.
As mentioned, the rationale for the continuing storm doctrine rests on the view
that it is reasonable for a landowner to wait until a storm ends and a reasonable time
thereafter before removing accumulations of ice and snow due to the impracticability
or ineffectiveness of continually removing such accumulations while the storm is
still in progress. While the appellant has referred to the availability of modern,
mechanized ice and snow removal equipment, no evidence has been presented
indicating that the rationale for the continuing storm doctrine no longer applies.
There is no evidence before us that Speedway could have effectively removed the
ice from around its gasoline pumps, by some means, while the freezing rain
continued to fall.17 The appellant has not offered any case law holding that the
rationale of the doctrine no longer applies. In the absence of such evidence or such
17
We realize that Speedway’s snow and ice removal company may not have been able to respond
to Speedway’s location in the relatively short period of time between the onset of the freezing rain
and the appellant’s fall. The Superior Court made no findings on this point and there is no
pertinent evidence on the point in the record. The record is also silent as to whether the two store
employees had any means to attempt ice removal. The Superior Court did not decide the case on
such factors, since they are not part of the continuing storm analysis which the Superior Court
performed.
11
authority, we hold to the view, first expressed in this State in Young, and recognized
by this Court in previous cases, that it is reasonable for a landowner to wait until a
storm ends and a reasonable time thereafter before removing natural accumulations
of ice and snow created by a storm, in the absence of unusual circumstances. We
reject the appellant’s contention that the continuing storm doctrine should not apply
to a business which remains open during a storm.
Many people who have to travel during weather events benefit from
businesses like gas stations, convenience stores, and pharmacies being open, which
enable them to get fuel, food, and medicine when they may need them without delay.
There is admittedly surface appeal to the argument that if a business is open, it has
to be diligent to make its premises safe. But, situations like this case illustrate the
problem with departing from the traditional rule. Even more than deep snow, a thin
coat of ice can be slippery and hard to eradicate even with salting or chemicals.
Inviting litigation over how often one has to salt or shovel during an active storm
could be costly and lead businesses to shut down, for fear of suits. This could be
detrimental to the many who must travel in active storm situations. 18
18
The continuing storm doctrine has been thought to address these concerns by alleviating the
concern that the workers of businesses would be forced to engage in clean up at the worst periods
of storms and by alleviating the concerns of business owners that if they stay open during a storm
they will expose themselves to the expense of tort suits over falls that are a natural risk in any
storm situation involving icy or snowy conditions. See, e.g., 3 Premises Liability 3d § 49:16.10
12
Given that concern, we are reluctant to forsake the continuing storm doctrine,
especially when another factor is considered. In active storm situations, customers
are expected to be aware themselves of the risks of falling and to take care to protect
themselves. They know it could be slippery and must dress and otherwise take the
steps necessary to protect themselves against a potential fall. As sad as the
plaintiff’s injuries were, the reality is that there is no foolproof way to avoid the risk
of slipping on ice. Some injuries are not the legal fault of anyone, they just are the
result of the reality that nothing in life is entirely safe, and surely not walking on ice
or snow. That does not mean that these injuries are not important and unfortunate,
(2017 ed.) (“The [storm in progress or continuing storm] defense evolved in recognition of the
realities of problems caused by winter weather, that is, as a common sense rule arising from the
fact that snow and ice conditions are unpredictable, natural hazards against which no one can insure
and which in their nature cannot immediately be alleviated.”) (quoting Hilsman v. Sarwil
Associates, L.P., 786 N.Y.S.2d 225, 226 (App. Div. 2004)); 74 A.L.R.5th 49 (Originally published
in 1999) (discussing liability for parking lot slip-and-fall) (“It is patently unfair to make a
landowner absolutely liable for every slip–and–fall accident on snow in a lot, especially as this
would require the owner to spend the entire winter clearing the lot on pain of losing a liability
suit. Moreover, it is equally unfair to require the lot owner to shoulder the expense of plowing
and replowing the lot during the course of a continuous storm. In this vein, many jurisdictions
have ruled that there is no liability for an accident that takes place while a storm is still going on
or a reasonable time thereafter, to give the owner a chance to clear out the lot.”); Kovach v.
Brandywine Innkeepers Ltd. P’ship, 2001 WL 1198944, at *2 (Del. Super. Ct. Oct. 1, 2001)
(“Landowners should be encouraged to try to clear all public areas of snow and ice during and
after snowstorms, if possible. Landowners should not fear legal liability for not clearing every
inch of their property during an all-day snowstorm if they attempt to clear some public areas of
snow during a snowfall. To hold otherwise would be a disincentive to vigilant efforts by
landowners to monitor and clear snow during snowstorms. Every landowner would choose to
wait out a snowstorm rather than clear a path for fear of legal jeopardy. Such a fear would be a
grave detriment to the public.”).
13
but before opening the door to trials about falls during active storms, this court needs
reliable evidence that the existing rule does not strike the optimal balance for all
Delawareans affected by the reality that bad weather happens.
We also reject the appellant’s contention that the store employees had a duty
to warn customers of ice at the time the appellant fell through the use of cones or
tape. Generally, there is no duty to warn of icy conditions during a storm in
progress.19 The appellant cites no contrary authority.
We are also unpersuaded that the continuing storm doctrine should be limited
to severe storms such as the one involved in Young. The rationale for the rule rests
upon the existence of a fairly continuous natural accumulation of ice and/or snow
created by ongoing precipitation. The rule does not depend upon whether that
precipitation is in the form of freezing rain, snow, sleet or a combination of all three.
As we have discussed, freezing rain can be one of the trickiest situations to deal with,
and thus we are satisfied that the continuing storm doctrine may apply to freezing
19
“The continuing storm doctrine suspends a property owner’s general duty to exercise reasonable
care in warning of . . . snow and ice hazards . . . .” Alcala v. Marriott Intern., Inc., 880 N.W.2d
699, 711 (Iowa 2016). See also Walker, 45 S.E.2d at 907; Childs v. Goodland Economy Lodging,
Inc., 2012 WL 2149818, at *3 (Kan. Ct. App. 2012); Wheeler v. Grande’vie Sr. Living Cmty., 31
A.D.3d 992, 993 (N.Y. App. Div. 2006).
14
rain as well as to a snow storm. The result we reach is in accord with authorities in
other jurisdictions.20
The Superior Court correctly applied the continuing storm doctrine to the facts
of this case, and its judgment is affirmed.
20
See Kraus, 558 A.2d at 241; Mattson, 89 N.W.2d at 744; FAD Ltd. P’ship, 377 S.E.2d 437, 438
(Va. 1989); Rochford v. G.K. Dev. Inc., 845 N.W.2d 715, 716 (Iowa Ct. App. 2014); Agnew, 822
P.2d at 1051.
15