No Duty Of Care While Freezing Rain Still In The Air (PA)
A Pennsylvania trial court granted summary judgment in a premises liability case where the plaintiff slipped and fell during an ongoing storm of rain and freezing rain, thereby reaffirming that a property owner has no obligation to remove all of the ice from its premises while the icy precipitation continued to fall. In Nunez v. Johnson & Johnson, Henry Nunez was employed by Allied Universal as a security guard at a FedEx warehouse in Tobyhanna, Pennsylvania when he arrived for work at approximately 1:50 p.m. to begin his work shift and parked in a parking area along the roadway within the facility, behind several other vehicles. As he exited his vehicle, he slipped and fell on ice. On that date of the incident, it had been raining throughout the day with periods of freezing rain. Weather records indicate that there was freezing rain, mist, and other unknown precipitation in the immediate area from just after midnight that day until at least 2:34 p.m., which was after Nunez fell. Throughout that period of time, rain and icy rain was falling, temperatures were under the freezing mark, and icy conditions existed on roads and parking areas. Nunez himself confirmed there had been icy rain falling that day before he went to work, that it continued when he left for work at approximately 1:30 p.m., and during his drive to work. Further, when he arrived at work, the icy rain event was still ongoing.
Plaintiff sued the snow and ice removal contractor (SRI), who had been actively engaged in efforts using various types or remediation machinery, including graders, plow trucks, wheel loaders and manual shoveling. SRI’s work began on the day before the loss and continued throughout the day and night of the 17th. The icy storm event was of a long duration. Based on this, the Court granted the motions for summary judgment to all Defendants. Nunez was considered a business invitee, and thus, the duty of care to a business invitee regarding conditions on the land will be breached only if: (1) the defendants know or by the exercise of reasonable care could have discovered the conditions and realized that they involved an unreasonable risk of harm to the invitee; (2) defendants should expect the plaintiff will not realize or discover the danger or will fail to protect himself from the danger; and (3) defendants fail to exercise reasonable care to protect plaintiff from the danger. Regarding snow and ice on a walkway, it is an impossible burden to require that walkways always be free and clear of ice and snow. The issue is whether or not defendants acted reasonably under the circumstances. Wentz v. Pennswood Apartments, 518 A.2d 314 (Pa. Super. 1986). Here the Court concluded that no duty of care was breached. “A landowner [or occupier of land] has no obligation to correct conditions until a reasonable time after the winter storm has ended.” Similarly, SRI, who was actively engaged in treating the icy conditions elsewhere on the property, cannot be held responsible for keeping the location where Nunez fell completely clear of ice at all times while there was an active ice storm occurring.
The Court found that summary judgment was also appropriate due to the lack of proof of hills and ridges where Plaintiff fell. Under Pennsylvania’s Hills and Ridges Doctrine, where generally slippery conditions exit, a plaintiff must prove: (1) that snow and ice had accumulated in ridges and elevations of such size and character as to unreasonably obstruct travel and constitute a danger to pedestrians; (2) that the property owner had notice, either actual or constructive, of the existence of such conditions; and (3) that it was the dangerous accumulation of snow and ice that caused the plaintiff to fall. Gilligan v. Villanova University, 584 A.2d 1005 (Pa. Super. 1991). Here, it was indisputable that generally slippery conditions existed. Nunez fell on a patch of ice by his vehicle. He described a sheet of ice from his car all the way to the building where he worked. He was unable to describe any hills or ridges that accumulated, thereby rendering summary judgment appropriate under the Hills and Ridges Doctrine.
The court appropriately applied existing Pennsylvania caselaw to this case and does not alter existing obligations on landowners and contractors hired to perform premises snow removal/maintenance.
Thanks to James Scott for his assistance in this post. Should you have any questions about this case, please feel free to contact Tom Bracken.