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Buchanan v. TD Bank, N.A.

Supreme Court of Delaware

May 2, 2018

DENISE BUCHANAN, Plaintiff Below, Appellant,
TD BANK, N.A., TD BANK U.S. HOLDING CO., MERIT SERVICE SOLUTION, LLC, a Delaware Limited Liability Company, JT SNOW REMOVAL, INC., and JERRY TAYLOR, Defendants Below, Appellees.

          Submitted: February 7, 2018

          Court Below: Superior Court of the State of Delaware CA No. K15C-12-020

          Before STRINE, Chief Justice; VALIHURA, VAUGHN, SEITZ and TRAYNOR Justices.


          James T. Vaughn, Jr. Justice.

         On this 2nd day of May 2018, upon consideration of the parties' briefs and the record on appeal, it appears to the Court that:

         (1) Appellant, Denise Buchanan, appeals from a Superior Court Order granting summary judgment for Appellees on the basis of the continuing storm doctrine. Buchanan claims on appeal that the continuing storm doctrine is not a defense to her claim because the negligence alleged by her occurred prior to the storm. Specifically, she alleges that the Appellees failed to take preventive or precautionary measures in advance of the storm to make their premises safe for business invitees.

         (2) On January 10, 2014, TD Bank operated a bank in Dover with an ATM that was open 24 hours a day, 7 days a week. According to weather records, rain began falling at 6:54 a.m. that day. The temperature when that reading was taken was 32 degrees Fahrenheit. The precipitation continued throughout the day and included sleet, freezing rain, and rain. It caused ice to form in some locations, including at the TD Bank.

         (3) Around 8:00 a.m. that day Buchanan arrived at TD Bank to use the ATM. In her deposition, she testified that it was raining when she left her house and on her way to TD Bank. She parked her vehicle directly in front of the bank. As she stepped out of her vehicle and onto the pavement she slipped on ice and fell.

         (4) Erica Tiffany Mansfield, Assistant Manager of the TD Bank branch, witnessed Buchanan's fall. Ms. Mansfield brought Buchanan an umbrella to shield her from the rain as she laid on the ground. An incident report prepared that day records Buchanan's fall as occurring at 7:53 a.m. The report indicated the weather conditions as "raining/sleeting" with Buchanan's fall caused by "black ice on [sic] sidewalk."

         (5) TD Bank contracted with Appellee Merit Service Solution, LLC, to perform snow and ice removal. In turn, Merit sub-contracted that work to Appellee JT Snow Removal, Inc., which was owned by Jerry Taylor. Taylor testified the TD Bank premises were pre-salted the evening of January 9, 2014, around 6:00 p.m. He also testified that the premises were salted again on January 10, 2014, between approximately 5:20 a.m. and 5:40 a.m., although a dispute of fact exists as to whether that salting took place.

         (6) Buchanan filed suit against TD Bank, N.A., TD Bank U.S. Holding Co., Merit Service Solution, LLC, JT Snow Removal, Inc., and Jerry Taylor, alleging negligence for their failure to maintain the premises in a reasonably safe condition by failing to take reasonable steps to prevent ice and snow accumulation prior to the winter storm. Appellees filed a motion for summary judgment, arguing that under the continuing storm doctrine they were permitted to wait until the winter precipitation ended and a reasonable time thereafter before removing ice from the premises. The Superior Court granted the motion, finding that the continuing storm doctrine applied. This appeal followed.

         (7) "This 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]

         (8) Generally, a landowner owes a duty to business invitees to keep his premises safe for their benefit.[2] This duty includes keeping the property reasonably safe from accumulations of ice and snow that occur naturally.[3] An exception to this general duty is known as the continuing storm doctrine. "[I]n the absence of unusual circumstances, [a landowner] 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."[4] The policy behind this exception is that changing weather conditions due to a storm make it "inexpedient and impracticable" for a landowner "to take earlier effective action" to clear their premises.[5]

         (9) Recently, we reaffirmed our approval of the continuing storm doctrine in Laine v. Speedway[6] In Laine, the plaintiff slipped on ice and fell near a gas pump on the premises of a combination convenience store-gas station. He had stopped at the store to fill up the gas tank in his employer's van. The ice was caused by a light, freezing rain, which was then falling and continued throughout the day.[ ...

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