Delaware Courts Continue Recognition of Difficulty in Removing Snow and Ice from Premises

Delaware courts have been busy this year addressing cases involving slip and falls on ice and snow.  This spring, the court reaffirmed the Continuing Storm Doctrine holding that landowners and tenants do not need to take measures to remediate snow and ice until a reasonable time after a storm subsides.  As a result, landowners are not required to even attempt to remove snow and ice while a storm is ongoing.  Snow removal companies have been quick to pick up on the Court’s holdings, adding language to contracts that they will not respond during snow and ice events unless specifically asked to do so.

The next question became what constitutes a reasonable measure for removing snow and ice when remediation measures are taken after a storm subsides.  In Ridgeway v. Fox Run SC, et al., the Delaware Supreme Court recognized that there are occasions when a lay person is able to determine when the measures were not adequate (when no measures are taken or they are incredibly poorly performed), but that there are also occasions when lay persons are not able to make a qualified determination and expert testimony may be needed.  The Court had previously not delved into requiring expert testimony, but in Ridgeway, it was faced with a fact pattern that called into question a lay person’s ability to determine if the measures taken were reasonable.  In Ridgeway, a snow removal company performed plowing and de-icing of a business premises multiple times over three days.  The property was a large parking lot for a shopping center. The owner of the snow removal company testified to the plan used to plow and de-ice in order to best move snow to locations to protect those using the premises from melting and refreezing.  On the day of the fall, the plaintiff drove to shop at a grocery store on the premises mid-morning of the third day.  She exited her car and took two steps before she fell.  Video showed a discolored surface where she fell which was debatably ice or salt residue.

The plaintiff chose not to retain an expert and argued that her description of the ice she fell on was sufficient to create an issue of fact of whether the snow and ice remediation performed was reasonable since there was still ice on the premises.  The Court disagreed, recognizing that some injuries are not the legal fault of anyone, they just are the result of the reality that nothing in life is entirely safe. The Court held that when there is substantial evidence of reasonable measures having been taken to perform snow and ice remediation, the plaintiff must produce some evidence that a breach of duty occurred and cannot rely on the mere fact that a fall occurred; “It is not enough to point to a slip and fall and the existence of snow and ice in the area.”  Where remediation measures were performed multiple times over three days, the plaintiff will need to produce expert testimony that the landlord/tenant breached a duty owed an invitee by not taking reasonable steps to make the premises reasonably safe.

The issue of timing is set aside since the Courts have been inconsistent in what actually constitutes a reasonable amount of time after a storm that remediation measures need to be taken.  However, based on Ridgeway, where a landowner and/or snow removal company can show that reasonable measures were taken in accordance with a plan to perform snow and ice remediation in an effort to make a premises safe for business invitees, then a business invitee who falls will need to produce some evidence that the measures did not conform to industry standards and a duty owed to the injured party was breached.  This should require expert testimony.

For more information about this article, please contact Eric Scott Thompson at 302.594.9780 or ethompson@fandpnet.com.