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Day v. Wilcox Landscaping Inc.

Superior Court of Delaware

February 28, 2017

MARLENA L. DAY, Plaintiff,

          Submitted: November 18, 2016

         Defendants' Motions for Summary Judgment: GRANTED


          Abigail M. LeGrow, Judge.

         1. A common law rule in Delaware, known as the "continuing storm doctrine" and consistently applied over the last five decades, is that landowners act with reasonable care when they await the end of a storm before undertaking to remove snow and ice from their property. The plaintiff in this action was injured at her place of employment when she slipped on ice during a storm. In an effort to avoid what appears to be a straightforward application of the continuing storm doctrine, the plaintiff advances various theories that fundamentally are at odds with the doctrine and the public policy underlying it. In a nutshell, the question before the Court is this: does the continuing storm doctrine apply even when a landowner retains a third party to clear snow and ice from the property? For the reasons that follow, I conclude the doctrine applies, and I therefore grant the defendants' motions for summary judgment.


         2. Except as otherwise noted, the following facts are not disputed. In October 2013, Sallie Mae, Inc. ("Sallie Mae") hired Defendant Wilcox Landscaping, Inc. ("Wilcox") to provide snow and ice removal services at Sallie Mae's Newark facility between November 2013 and April 2014.[1] Under Sallie Mae's contract with Wilcox, Wilcox was to clear snow and ice at a contractual rate, including removing snow "from the roadways and parking lots [consisting] of plowing, clearing, and salting these areas to allow tenants to exit from the property."[2] Wilcox in turn relied on its own independent contractors, Defendants Carrow Construction, LLC ("Carrow") and Sleepy Hollow Lawn Care & Landscaping, Inc. ("Sleepy Hollow, " and together with Wilcox and Carrow, the "Defendants"), to provide snow and ice removal as directed by Wilcox for certain of Wilcox's clients. Specifically, Sleepy Hollow agreed to provide snow removal services for Wilcox's accounts as directed by Wilcox, and Carrow similarly agreed to provide plowing, snow removal, and salting services as directed by Wilcox.[3]

         3. The plaintiff, Marlena L. Day, was a Sallie Mae employee working at the company's Newark office building on January 21, 2014. That day, a winter storm began shortly after 9:00 a.m., bringing light-to-moderate snowfall to the area that continued through the day and into that night.[4] Ms. Day arrived at work shortly after 8:00 a.m. According to an expert retained by the Defendants, no snow or ice was present on the ground before the storm began that morning.[5] By 11:30 a.m., there was between a half-inch to one inch of snow on the ground.[6] The storm ended just before midnight, with approximately 11 inches of snow accumulating.[7]

         4. In the late morning, Ms. Day decided to drive home before the weather and driving conditions worsened.[8] When Ms. Day walked outside, it was snowing, and the sidewalks around the building had been salted.[9] When she reached the parking lot, Ms. Day saw what appeared to be a sheet of ice.[10] Having no other way to get to her car, Ms. Day attempted to cross the ice, but fell after a few steps, injuring her right knee.[11]

         5. Ms. Day filed a complaint against Wilcox alleging that her injuries proximately were caused by Wilcox's negligence in failing to (i) maintain the premises in a safe condition, (ii) inspect the premises for dangerous conditions, (iii) warn others of dangerous conditions that existed, and (iv) otherwise exercise reasonable care in discharging its contractual responsibility to clear the parking lot of snow and ice.[12] Ms. Day later amended her complaint to add Carrow and Sleepy Hollow as defendants. There is evidence from which a fact-finder reasonably could conclude that both Carrow and Sleepy Hollow worked at the Sallie Mae premises that day at Wilcox's direction. There is some dispute in the record regarding whether Sleepy Hollow or Carrow was responsible for plowing the lot.[13] It is undisputed that no salt was applied to the Sallie Mae parking lot until after the snow stopped and the parking lot was plowed completely.[14] All parties agree that both Sleepy Hollow and Carrow acted under Wilcox's oversight and that it was Wilcox who determined when to apply salt to the parking lot.[15]

         6. After discovery concluded, all three Defendants moved for summary judgment on the basis that the continuing storm doctrine precludes any finding that they breached a duty to Ms. Day. The parties briefed and argued those motions.


         7. Summary judgment should be awarded if "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."[16] The question of whether a defendant owes a legal duty is a question of law that may be resolved on summary judgment.[17] Although determining whether a duty is breached often is a factual question, there are circumstances under which a court may determine as a matter of law that no breach occurred.[18]

         8. When considering a motion for summary judgment, the evidence and the inferences drawn from the evidence are to be viewed in the light most favorable to the nonmoving party.[19] The Court will accept "as established all undisputed factual assertions . . . and accept the non-movant's version of any disputed facts. From those accepted facts[, ] the [C]ourt will draw all rational inferences which favor the non-moving party."[20] A party seeking summary judgment bears the initial burden of showing that no genuine issue of material fact exists.[21] If the movant makes such a showing, the burden then shifts to the nonmoving party to submit sufficient evidence to show that a genuine factual issue, material to the outcome of the case, precludes judgment before trial.[22]

         9. The Defendants contend summary judgment is appropriate here because the continuing storm doctrine precludes any finding that the Defendants failed to act with reasonable care at the time Ms. Day was injured. Ms. Day presents a number of arguments in opposition to the motions, which generally may be summarized as follows: (1) the continuing storm doctrine does not apply to independent contractors and should not be extended in that manner; (2) even if the doctrine applies to independent contractors, Wilcox assumed a contractual duty to maintain safe premises through snow and ice removal and those contractual duties define Wilcox's duties under tort law; (3) the Restatement (Second) of Torts § 3 24 A imposes duties on the Defendants that they violated; and (4) Wilcox violated its duty to act with reasonable care by failing to prepare for the storm by pre-treating Sallie Mae's parking lot and sidewalks. In essence, each of these arguments repackages the same contention: the Defendants owed duties to take action before and during the storm and failed to discharge those duties. As explained below, I conclude Delaware law precludes such a finding and therefore grant the Defendants' motions.

         A. The continuing storm doctrine and independent contractors

         10. Ms. Day first argues that the Defendants failed to exercise reasonable care in discharging their duty to clear the Sallie Mae property of natural accumulations of snow and ice. The landowner or occupant of a business property has a duty under Delaware law to "exercise reasonable care to keep the premises safe for all business invitees."[23] Where a dangerous condition exists on the land, which a landowner knows exists or upon reasonable inspection would discover, the owner has a duty to make that condition safe.[24] A landowner's duties in this regard apply to weather-related conditions, such that the landowner must "keep the premises reasonably safe from the hazards associated with natural accumulations of ice and snow."[25]

         11. Under settled Delaware law, however, the continuing storm doctrine provides that, in the absence of unusual circumstances, a landowner is permitted to await the end of a storm and a reasonable time thereafter to remove snow and ice from his property.[26] That doctrine, first adopted in Delaware in Young v. Saroukos, [27] consistently has been applied by Delaware courts for several decades to preclude any finding of liability for landowners on whose property someone is injured while a storm is ongoing.[28] The doctrine provides that a landowner does not breach his duty to act with reasonable care by waiting until the conclusion of a storm before beginning snow and ice removal efforts.[29]

         12. In applying the continuing storm doctrine, Delaware courts also have held that a landowner who undertakes to clear public areas of snow or ice while the storm is ongoing does not lose the benefit of the doctrine and those efforts, even if unsuccessful, do not subject a landowner to liability.[30] As this Court reasoned in Kovach v. Brandywine Innkeepers, L.P., it would contravene public policy to conclude landowners assumed a higher duty by attempting to remove snow and ice before a storm ended.

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 .... 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.[31]

         13. Ms. Day acknowledges this general law, but argues the Defendants are not entitled to summary judgment on the basis of the continuing storm doctrine because they are not landowners but rather independent contractors retained by the landowner. This argument fails to recognize the basis for the rule and the policy underlying it. The continuing storm doctrine provides that a landowner, charged with undertaking reasonable efforts to remove ice and snow from property, acts reasonably by waiting to begin such efforts until a storm concludes, and that even voluntarily undertaking such efforts during the storm does not alter the doctrine's application. The doctrine is intended not only to shield landowners from repeatedly subjecting themselves to the elements and dangerous conditions in order to clear property, but also to encourage landowners to make an effort to clear public areas during a storm without fear of incurring liability where there otherwise would be none.[32] In contrast, Ms. Day's argument would create an inconsistent application of the reasonable care standard under which landowners who undertake their own snow and ice removal efforts act reasonably by waiting to do so until the end of a storm, but third parties retained to perform the work on landowners' behalf face potential liability by waiting or by engaging in incomplete or unsuccessful clean-up efforts during the storm. Ms. Day offers no reasoned ...

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