IN THE SUPREME COURT OF THE STATE OF DELAWARE
MARLENA L. DAY, § § No. 132, 2017 Plaintiff Below, § Appellant, § Court Below: Superior Court of § the State of Delaware v. § § CA No. N15C-06-277 WILCOX LANDSCAPING, INC., § CARROW CONSTRUCTION, LLC § and SLEEPY HOLLOW LAWN § CARE & LANDSCAPING, INC., § § Defendants Below, § Appellees. §
Submitted: February 7, 2018 Decided: May 2, 2018
Before STRINE, Chief Justice; VALIHURA, VAUGHN, SEITZ and TRAYNOR Justices.
ORDER
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) The Appellant, Marlena Day, was injured when she slipped and fell
during a snow storm. She brought suit against the Appellees, claiming that her
injuries were proximately caused by negligence on their part. The Superior Court
granted summary judgment for Appellees, ruling that the continuing storm doctrine
was a defense to the Appellant’s claims of negligence. Ms. Day appeals that ruling. (2) On January 21, 2014, a winter storm hit Newark, Delaware.
According to weather records, snow was falling almost continuously from
approximately 9:18 a.m. through the early morning hours on January 22. In total,
about eleven inches of snow fell. No snow or ice was present in the Newark area
before the January 21 storm.
(3) Day was a Sallie Mae employee working at the company’s Newark
office building. On January 21 she arrived to work around 8:00 a.m. before the
snow began. Sometime around noon she decided to leave work and drive home
before the weather and road conditions worsened. When she walked outside to
leave it was snowing. She recalled the parking lot “looked like a sheet of ice.” As
she stepped off the sidewalk and into the parking lot she slipped and fell, injuring
her right knee.
(4) Sallie Mae contracted with Appellee Wilcox Landscaping, Inc., to
perform snow and ice removal at Sallie Mae’s Newark office building. Under their
agreement, Wilcox was to remove snow “from roadways and parking areas [by]
plowing, clearing, and salting of these areas to allow tenants to exit from the
property.” In turn, Wilcox sub-contracted with Appellees Carrow Construction,
LLC, and Sleepy Hollow Lawn Care & Landscaping, Inc., to provide snow and ice
removal as Wilcox directed.
2 (5) Day filed suit against Wilcox, and later amended her complaint to
include Carrow and Sleepy Hollow, alleging negligence for their failure to: maintain
the premises in a safe condition; inspect the premises for dangerous conditions; warn
others of dangerous conditions that existed; and act with reasonable care in clearing
the parking lot of snow and ice. Appellees filed motions for summary judgment,
arguing that under the continuing storm doctrine their actions were reasonable
during the on-going snow storm. The Superior Court granted the motions, finding
that the continuing storm doctrine applied. This appeal followed.
(6) “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
(7) 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. Under that doctrine,
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). 3 “in 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
(8) 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.
The Superior Court granted defendant’s motion for summary judgment based on the
continuing storm doctrine.
(9) On appeal, this Court “[held] to the view . . . 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.” 7 We noted “customers are expected to be aware
4 Young v. Saroukos, 185 A.2d 274, 282 (Del. Super. Ct. 1962). 5 Id. 6 Laine v. Speedway, LLC, 2018 WL 315584 (Del. Supr.). 7 Id. *5. 4 themselves of the risks of falling [during an active storm] and to take care to protect
themselves.”8
(10) Here, the facts of Day’s case fall squarely within the continuing storm
doctrine. The evidence reflects snow starting as early as 9:18 a.m. on January 21,
2014, and falling throughout the day. Day’s fall occurred in the late morning
sometime around noon when the snow was on-going. There is no dispute about the
weather conditions.
(11) Day makes several arguments in an attempt to avoid the continuing
storm doctrine. She first argues that the continuing storm doctrine is limited to
landowners and does not apply to the activities of independent contractors. This
argument would create an inconsistency between cases where the landowner itself
performs snow and ice removal and those where the landowner hires someone to
remove the snow and ice. We see no reasonable basis for such a distinction. The
rule that a landowner acts reasonably in awaiting the end of the storm and a
reasonable time thereafter to commence snow and ice removal applies both to the
landowner and to those hired by the landowner to perform those services.
(12) Day next contends the Appellees should be liable for their allegedly
negligent conduct during the storm because they were contractually bound to
8 Id. 5 perform snow removal services during the storm for the safety of Sallie Mae’s
employees. She argues that Appellees had a contractual duty to remove snow and
ice “to allow tenants to exit from the property” as stated in the Sallie Mae–Wilcox
contract; and that “the Sallie Mae/Wilcox contract . . . gave rise to the Appellees’
duty . . . to exercise reasonable care under the circumstances.”9 However, previous
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IN THE SUPREME COURT OF THE STATE OF DELAWARE
MARLENA L. DAY, § § No. 132, 2017 Plaintiff Below, § Appellant, § Court Below: Superior Court of § the State of Delaware v. § § CA No. N15C-06-277 WILCOX LANDSCAPING, INC., § CARROW CONSTRUCTION, LLC § and SLEEPY HOLLOW LAWN § CARE & LANDSCAPING, INC., § § Defendants Below, § Appellees. §
Submitted: February 7, 2018 Decided: May 2, 2018
Before STRINE, Chief Justice; VALIHURA, VAUGHN, SEITZ and TRAYNOR Justices.
ORDER
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) The Appellant, Marlena Day, was injured when she slipped and fell
during a snow storm. She brought suit against the Appellees, claiming that her
injuries were proximately caused by negligence on their part. The Superior Court
granted summary judgment for Appellees, ruling that the continuing storm doctrine
was a defense to the Appellant’s claims of negligence. Ms. Day appeals that ruling. (2) On January 21, 2014, a winter storm hit Newark, Delaware.
According to weather records, snow was falling almost continuously from
approximately 9:18 a.m. through the early morning hours on January 22. In total,
about eleven inches of snow fell. No snow or ice was present in the Newark area
before the January 21 storm.
(3) Day was a Sallie Mae employee working at the company’s Newark
office building. On January 21 she arrived to work around 8:00 a.m. before the
snow began. Sometime around noon she decided to leave work and drive home
before the weather and road conditions worsened. When she walked outside to
leave it was snowing. She recalled the parking lot “looked like a sheet of ice.” As
she stepped off the sidewalk and into the parking lot she slipped and fell, injuring
her right knee.
(4) Sallie Mae contracted with Appellee Wilcox Landscaping, Inc., to
perform snow and ice removal at Sallie Mae’s Newark office building. Under their
agreement, Wilcox was to remove snow “from roadways and parking areas [by]
plowing, clearing, and salting of these areas to allow tenants to exit from the
property.” In turn, Wilcox sub-contracted with Appellees Carrow Construction,
LLC, and Sleepy Hollow Lawn Care & Landscaping, Inc., to provide snow and ice
removal as Wilcox directed.
2 (5) Day filed suit against Wilcox, and later amended her complaint to
include Carrow and Sleepy Hollow, alleging negligence for their failure to: maintain
the premises in a safe condition; inspect the premises for dangerous conditions; warn
others of dangerous conditions that existed; and act with reasonable care in clearing
the parking lot of snow and ice. Appellees filed motions for summary judgment,
arguing that under the continuing storm doctrine their actions were reasonable
during the on-going snow storm. The Superior Court granted the motions, finding
that the continuing storm doctrine applied. This appeal followed.
(6) “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
(7) 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. Under that doctrine,
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). 3 “in 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
(8) 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.
The Superior Court granted defendant’s motion for summary judgment based on the
continuing storm doctrine.
(9) On appeal, this Court “[held] to the view . . . 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.” 7 We noted “customers are expected to be aware
4 Young v. Saroukos, 185 A.2d 274, 282 (Del. Super. Ct. 1962). 5 Id. 6 Laine v. Speedway, LLC, 2018 WL 315584 (Del. Supr.). 7 Id. *5. 4 themselves of the risks of falling [during an active storm] and to take care to protect
themselves.”8
(10) Here, the facts of Day’s case fall squarely within the continuing storm
doctrine. The evidence reflects snow starting as early as 9:18 a.m. on January 21,
2014, and falling throughout the day. Day’s fall occurred in the late morning
sometime around noon when the snow was on-going. There is no dispute about the
weather conditions.
(11) Day makes several arguments in an attempt to avoid the continuing
storm doctrine. She first argues that the continuing storm doctrine is limited to
landowners and does not apply to the activities of independent contractors. This
argument would create an inconsistency between cases where the landowner itself
performs snow and ice removal and those where the landowner hires someone to
remove the snow and ice. We see no reasonable basis for such a distinction. The
rule that a landowner acts reasonably in awaiting the end of the storm and a
reasonable time thereafter to commence snow and ice removal applies both to the
landowner and to those hired by the landowner to perform those services.
(12) Day next contends the Appellees should be liable for their allegedly
negligent conduct during the storm because they were contractually bound to
8 Id. 5 perform snow removal services during the storm for the safety of Sallie Mae’s
employees. She argues that Appellees had a contractual duty to remove snow and
ice “to allow tenants to exit from the property” as stated in the Sallie Mae–Wilcox
contract; and that “the Sallie Mae/Wilcox contract . . . gave rise to the Appellees’
duty . . . to exercise reasonable care under the circumstances.”9 However, previous
cases have established that a landowner, or in this case an independent contractor,
does not incur a duty to make premises safe by undertaking snow and ice removal
activities while the storm is on-going. 10 Under the continuing storm doctrine,
reasonable care during a storm is to await the storm’s end and a reasonable time
thereafter before removing ice and snow from the premises. If a landowner or its
contractor voluntarily take steps to clear the premises before the storm ends, as the
Appellees did here, they are still protected from liability. Day presents no
persuasive argument to draw a distinction between Appellees’ common law duty and
their contractual duty.
(13) Day next contends the Appellees violated a duty of care owed to her
under the Restatement (Second) of Torts § 324A. Section 324A addresses liability
to third persons for an actor’s “failure to exercise reasonable care to protect his
9 Appellant’s Opening Br. at 21–22. 10 Kovach v. Brandywine Innkeepers, Ltd. P’shp, 2001 WL 1198944 (Del. Super Ct. Oct. 1, 2001; Morris v. Theta Vest, Inc. 2009 WL 693253 (Del. Super. Ct. Mar. 10, 2009), aff’d 2009 WL 2246777 (Del. Supr.). 6 undertaking” if that failure increases the risk of harm to another.11 In support of
this argument, Day presents evidence from her snow removal expert, Richard M.
Balgowan, P.E., that Appellees improperly plowed the Sallie Mae parking lot thus
leaving the parking lot in a more dangerous condition than had they not plowed.12
This argument is but another attempt to circumvent the continuing storm doctrine.
Attempts to begin removing snow and ice while the storm is still in progress should
be encouraged. The principle that a person having a duty to remove snow and ice
acts with reasonable care by waiting until the end of the storm to do so necessarily
includes the principle that the person acts with reasonable care by beginning to
remove snow and ice before the storm ends, even if those efforts are ineffective or
may have contributed to the plaintiff’s accident.
(14) Day’s next argument is that public policy requires that the Appellees be
held accountable for failing to fulfill their obligations for snow and ice removal
under their contracts which resulted in serious injury to her. She argues Appellees
will escape liability if the continuing storm doctrine is applied in this case, thus
nullifying the service contract Appellees entered into with Sallie Mae. However,
11 Restatement (Second) of Torts § 324A. 12 Appellant’s Opening Br. at 24. 7 our approval of the continuing storm doctrine in Laine necessarily rejects this public
policy argument.
(15) Day’s final argument is that Appellees’ negligence stems from their
failure to take preventative or precautionary measures before the storm arrived.
She argues Appellees had “an obligation . . . to exercise care before the event
(pretreating surfaces with anti-icing chemicals)” because they had knowledge that a
winter storm may be arriving . 13 Mr. Balgowan opines this antecedent salting
would have prevented the dangerous icing condition from occurring. The
argument that the duty of care requires pre-storm, precautionary activities to prevent
snow and ice from forming was considered and rejected in Buchanan v. TD Bank,
N.A., et al. in an order bearing the same date as this order.14
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior
Court is AFFIRMED.
BY THE COURT:
/s/ James T. Vaughn, Jr. Justice
13 Appellant’s Opening Br. at 29. 14 Buchanan v. TD Bank, N.A., et al., Del. Supr., No. 173, 2017, En Banc (May 2, 2018) (ORDER). 8