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Garvin v. Landscaping
Superior Court of Delaware
September 27, 2019
HELENA GARVIN Plaintiff,
WILCOX LANDSCAPING, Defendant.
Submitted: June 13, 2019
Consideration of Defendant's Motion for Summary Judgment.
CHARLES E. BUTLER, JUDGE.
27th day of September 2019, upon consideration of
Defendant's Motion for Summary Judgment, it appears to
the Court that:
1. This is a personal injury action in which the Plaintiff
alleges that she suffered injuries as a result of a fall she
took outside an office building in Newark, Delaware.
2. Defendant is the contractor whose responsibilities
included snow and ice removal from the sidewalks around the
Plaintiff alleges that Defendant was negligent by not
removing accumulated ice and snow from the
sidewalk. She alleges that Defendant's
negligence caused her slip and fall and resultant
3. As developed in discovery, on February 15, 2016, the
Plaintiff heard from a co-worker that it was icy
outside. She went to her car to allow it a few
minutes to warm up before ending her shift at 9
pm. As Plaintiff exited the front of the
building, at or around 8:50 pm, she felt that it was
raining. She also noticed ice on the
sidewalk. Upon taking a few steps out of the
building, she slipped, fell and after a brief period of
unconsciousness, was awakened by the rain hitting her
face.Plaintiffs own weather data shows a
continuous period of light snow, fog and freezing rain from
mid-morning until late night on the evening Plaintiff
4. A commercial party generally has an affirmative duty to
make its premises safe for business invitees. A
business owner must also keep the premises safe from
accumulations of snow and ice. The continuing storm
doctrine suspends this duty and permits the owner to wait a
reasonable time after the storm ends before removing ice and
snow from an entranceway, platform or steps. The
policy behind this exception is that due to rapidly changing
weather conditions during a storm, it is inexpedient and
impracticable to take earlier action.
5. The Defendant argues that it is entitled to judgment as a
matter of law because the continuing storm doctrine suspended
its duty to make the premises safe until a reasonable time
elapsed after the storm ended.
6. Plaintiff argues that the continuing storm doctrine only
raises contested issues of fact and the contested facts
should be determined by a jury. Plaintiff suggests the
storm was not continuous, "there were multiple periods
of time when no precipitation was
falling." Plaintiff states there were periods
of overcast, earlier in the day, according to the submitted
weather report from 6:51 am - 9:51 am.
7. This Court will grant summary judgment where "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." The moving party bears the initial
burden of showing that the undisputed facts make judgment
appropriate. If that burden is satisfied, the burden
shifts to the non-moving party to demonstrate that there are
material issues of fact that must proceed to
8. Here, Plaintiff testified under oath that it was raining
when she exited the building. The weather data
submitted by Plaintiff shows freezing temperatures all
day. Her description of the weather
conditions made it clear that she and her co-workers were
aware that it was snowing and/or raining most of the day and
the storm had not ceased. Plaintiff went outside
specifically aware of the continuing storm in order to warm
up her car. She put on her snow boots to protect
from the accumulated snow and ice. Plaintiffs exhibit
shows continuous inclement conditions (various periods of
light snow, ice and freezing rain) from 10:51 am and
persisting well after 8:51 pm when Plaintiff
fell. There are no contested issues of
material fact for a jury to decide. The evidence and
deposition testimony show the storm had not ceased.
Defendant's duty to remove accumulated snow or ice was
not triggered until a reasonable time after the storm abated.
Defendant is entitled to judgment as a matter of law.
9. For the reasons set forth herein, Defendant's Motion
for Summary Judgment is GRANTED.
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