Debra Gries v. Ames Ecumenical Housing, Inc. d/b/a Stonehaven Apts. ( 2020 )

IN THE SUPREME COURT OF IOWA
No. 19–1306
Filed June 5, 2020
DEBRA GRIES,
Appellant,
vs.
AMES ECUMENICAL HOUSING, INC. d/b/a STONEHAVEN APTS.,
Appellee.
Appeal from the Iowa District Court for Story County, James A.
McGlynn, Judge.
Plaintiff appeals from the adverse grant of summary judgment in her
personal injury suit. REVERSED AND REMANDED.
Frederick W. James of The James Law Firm, P.C., Des Moines, and
Shawn Smith of Shawn Smith, Attorney at Law, PLLC, Ames, for appellant.
Michael C. Richards and Daniela Erickson of Davis, Brown, Koehn,
Shors & Robert, P. C., for appellee.
Thomas M. Boes of Bradshaw, Fowler, Proctor & Fairgrave, P.C., Des
Moines, for amici curiae Iowa Defense Counsel Association, Iowa
Insurance Institute, and Iowa Association of Business and Industry.
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McDONALD, Justice.
Debra Gries slipped and fell on an icy sidewalk outside her
apartment building. She filed a negligence suit against her landlord, Ames
Ecumenical Housing, Inc. d/b/a Stonehaven Apartments (Stonehaven).
The district court granted Stonehaven’s motion for summary judgment,
holding, pursuant to the continuing storm doctrine, Stonehaven had no
duty at the time Gries fell to remove or ameliorate the natural
accumulation of snow or ice on the sidewalk. On appeal, Gries argues this
court should abandon the continuing storm doctrine in light of this court’s
adoption of the duty analyses set forth in the Restatement (Third) of Torts:
Liability for Physical and Emotional Harm. (Am. Law Inst. 2010)
[hereinafter Restatement (Third)]. She argues, in the alternative, the
district court erred in holding Stonehaven was entitled to judgment as a
matter of law pursuant to the continuing storm doctrine.
I.
Our review is for the correction of legal error. See Baker v. City of
Iowa City, 867 N.W.2d 44, 51 (Iowa 2015). Summary judgment is
appropriate “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 judgment as a matter of law.” Iowa R. Civ. P. 1.981(3). The
party seeking summary judgment has the burden of establishing that the
facts are undisputed and that the “party is entitled to a judgment as a
matter of law.” Estate of Harris v. Papa John’s Pizza, 679 N.W.2d 673, 677
(Iowa 2004) (quoting Iowa R. Civ. P. 1.981(3)). “When a motion for
summary judgment is made and [properly] supported . . . [the opposing]
party may not rest upon the mere allegations or denials in the
pleadings . . . .” Iowa R. Civ. P. 1.981(5); Bitner v. Ottumwa Cmty. Sch.
3
Dist., 549 N.W.2d 295, 299 (Iowa 1996). Instead, the resisting party must
set forth specific material facts, supported by competent evidence,
establishing the existence of a genuine issue for trial. See Iowa R. Civ. P.
1.981(5); Bitner, 549 N.W.2d at 299. “A fact is material if it will affect the
outcome of the suit, given the applicable law.” Parish v. Jumpking, Inc.,
719 N.W.2d 540, 543 (Iowa 2006). An issue of fact is “genuine” if the
evidence would allow “a reasonable jury [to] return a verdict for the
nonmoving party.” Fees v. Mut. Fire & Auto. Ins., 490 N.W.2d 55, 57 (Iowa
1992). It is well established that speculation is not sufficient to generate
a genuine issue of fact. See Nelson v. Lindaman, 867 N.W.2d 1, 7 (Iowa
2015).
II.
The issue of whether we should abandon the continuing storm
doctrine in light of our recent adoption of the duty analyses in the
Restatement (Third) was presented to us once before in Alcala v. Marriott
International, Inc., 880 N.W.2d 699, 711 (Iowa 2016). We declined to reach
the issue in that case because it was raised for the first time on further
review. See id. at 711–12. The issue is now squarely presented in this
appeal, and we conclude the continuing storm doctrine is consistent with
the Restatement (Third) and remains good law.
The continuing storm doctrine is of long standing in Iowa. This
court first adopted the rule in 1953 in Reuter v. Iowa Trust & Savings Bank,
244 Iowa 939, 57 N.W.2d 225 (1953). In Reuter, we said,
The authorities are in substantial accord in support of the rule
that a business establishment, landlord, carrier, or other
inviter, in the absence of unusual circumstances, 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. The general controlling principle is that
changing conditions due to the pending storm render it
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inexpedient and impracticable to take earlier effective action,
and that ordinary care does not require it.
Id. at 943, 57 N.W.2d at 225 (quoting Walker v. Mem’l Hosp., 45 S.E.2d
898, 902 (Va. 1948)).
Long after our adoption of the continuing storm doctrine, “we
changed the law concerning premises liability by abandoning the common
law distinctions between invitees and licensees.” Ludman v. Davenport
Assumption High Sch., 895 N.W.2d 902, 909 (Iowa 2017). We concluded
the “common law rules governing premises liability . . . to be replete with
special rules and arbitrary distinctions.” Id. In replacement of the old
common law rules and distinctions, in Koenig v. Koenig, we adopted for
land possessors a duty of reasonable care. 766 N.W.2d 635, 645 (Iowa
2009).
After Koenig, we adopted the duty analyses set forth in sections 7
and 51 of the Restatement (Third). First, in Thompson v. Kaczinski, we
adopted the duty analysis set forth in section 7 of the Restatement (Third).
See 774 N.W.2d 829, 835 (Iowa 2009) (“We find the drafters’ clarification
of the duty analysis in the Restatement (Third) compelling, and we now,
therefore, adopt it.”). The Restatement (Third) provides, “An actor
ordinarily has a duty to exercise reasonable care when the actor’s conduct
creates a risk of physical harm.” Restatement (Third) § 7(a), at 77.
Subsequently, in Ludman, we explained the Restatement (Third)
“adopted the position we took on premises liability” in Koenig. Ludman,
895 N.W.2d at 910. Because the Restatement (Third) regarding premises
liability was consistent with Koenig, we adopted “the duty analysis for land
possessors contained in section 51 of the Restatement (Third).” Id.
Section 51 of the Restatement (Third) is a “specific application” of the duty
to exercise reasonable care “based on the circumstance of real-property
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ownership.” Restatement (Third) § 51 cmt. b, at 244 (Am. Law Inst. 2012).
Section 51 provides, in relevant part, “a land possessor owes a duty of
reasonable care to entrants on the land with regard to . . . natural
conditions on the land that pose risks to entrants on the land.”
Restatement (Third) § 51(c), at 242.
Gries makes no real doctrinal argument why the adoption of sections
7 and 51 of the Restatement (Third) counsels in favor of abandoning the
continuing storm doctrine, and we see none. In adopting the Restatement
(Third) duty analyses, we removed foreseeability from the “duty calculus.”
McCormick v. Nikkel & Assocs., Inc., 819 N.W.2d 368, 371 (Iowa 2012).
“But we did not erase the remaining law of duty; rather, we reaffirmed it.”
Id. Included in the body of reaffirmed law were exclusions from the
ordinary duty of reasonable care. See Huck v. Wyeth, Inc., 850 N.W.2d
353, 375 (Iowa 2014) (“We have made clear that our adoption of section 7
of the Restatement (Third) of Torts in Thompson did not supersede our
precedent limiting liability . . . .”); McCormick, 819 N.W.2d at 371
(explaining the adoption of Restatement (Third) section 7 did not change
our law modifying or eliminating the duty of reasonable care).
After the adoption of the duty analyses set forth in the Restatement
(Third), this court and the court of appeals continued to find exceptions to
the ordinary duty of reasonable care. In Van Fossen v. MidAmerican
Energy Co., we made clear that our previous law of duty was alive and well.
777 N.W.2d 689, 696–97 (Iowa 2009). We held employers of independent
contractors do not owe a general duty of care under Restatement (Third)
section 7. Id. In Feld v. Borkowski, we recognized contact sports are one
of the “activities or circumstances [that] have been excepted from the
reasonable-care duty.” 790 N.W.2d 72, 76 (Iowa 2010). In McCormick, we
reaffirmed the common law control principle on public policy grounds:
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Application of the control principle makes sense here
from a public policy perspective. Consider the implications of
a contrary rule that a party has created a nondelegable risk of
harm if the electricity is on when it leaves the premises. No
matter that the accident occurred a week later, or that the
facility could not operate without electricity, or that the owner
was fully aware of the relevant risks, or that the equipment
had been locked up. To avoid potential liability, various
parties (owners, landlords, repairpersons, etc.) would need to
turn off utilities that involve any risk of hazard (e.g., gas,
electricity) whenever they leave a property. These
unnecessary shutoffs would result in burdens and
inconveniences to businesses and the general public.
819 N.W.2d at 373. In Huck, we reaffirmed our precedents limiting liability
and held brand drug manufacturers owed “no duty to consumers of
generic drugs.” 850 N.W.2d at 380. In Rochford v. G.K. Development, Inc.,
845 N.W.2d 715, 718 (Iowa Ct. App. 2014), and Wailes v. Hy–Vee, Inc., 861
N.W.2d 262, 265–68 (Iowa Ct. App. 2014), the court of appeals applied the
continuing storm doctrine. And, most recently, we upheld the ongoing
vitality of the public-duty doctrine. See Estate of McFarlin v. State, 881
N.W.2d 51, 64 (Iowa 2016) (affirming “summary judgment based on the
public-duty doctrine”).
The cases reaffirming exceptions to the ordinary duty to exercise
reasonable care are in accord with the Restatement (Third). The
Restatement (Third) recognizes there are exceptions to the duty of
reasonable care. See Restatement (Third) § 7(b), at 77 (“In exceptional
cases, when an articulated countervailing principle or policy warrants
denying or limiting liability in a particular class of cases, a court may
decide that the defendant has no duty or that the ordinary duty of
reasonable care requires modification.”); id. § 51 cmt. b, at 243–44
(recognizing the same exceptions to the duty of reasonable care apply with
respect to causes of action based on premises liability).
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In accord with the Restatement (Third), we have said “a lack of duty
may be found if either the relationship between the parties or public
considerations warrants such a conclusion.” McCormick, 819 N.W.2d at
371. With respect to this second category, “[o]nly ‘in exceptional cases’
will th[e] general duty of reasonable care not apply. ‘An exceptional case
is one in which “an articulated countervailing principle or policy warrants
denying or limiting liability in a particular class of cases.” ’ ” Estate of
Gottschalk v. Pomeroy Dev., Inc., 893 N.W.2d 579, 586–87 (Iowa 2017)
(quoting Brokaw v. Winfield-Mt. Union Cmty. Sch. Dist., 788 N.W.2d 386,
391 (Iowa 2010)). “The principle or policy that is the basis for modifying
or eliminating the ordinary duty of care contained in § 7(a) may be reflected
in longstanding precedent . . . .” Restatement (Third) § 7 cmt. a, at 78.
The continuing storm doctrine is a long-standing “articulated
countervailing principle or policy” that warrants limiting liability for land
possessors as a result of injury caused by the ongoing accumulation of ice
or snow. At the eye of the continuing storm doctrine is a recognition of
“[t]he feebleness of human . . . efforts in attempting to cope with the power
of the elements.” Alcala, 880 N.W.2d at 711 (quoting Staples v. City of
Spencer, 222 Iowa 1241, 1244, 271 N.W. 200, 202 (1937) (alteration in
original)). Because of our recognized feebleness in coping with the
elements, “[t]he continuing-storm doctrine suspends a property owner’s
general duty to exercise reasonable care in warning of or removing snow
and ice hazards until a reasonable time after the storm because
continually clearing ice and snow during an ongoing storm would be
impracticable.” Id. As Justice Hecht noted in Alcala: “The rule’s purpose
is essentially to prevent land occupiers from having to undertake
Sisyphean tasks every time it snows.” Id. at 721–22 (Hecht, J., concurring
in part, dissenting in part).
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Significant policy reasons justify relieving a land possessor of the
duty to undertake Sisyphean action during a storm. The continuing storm
doctrine recognizes a land possessor is not a de facto insurer responsible
for all accidents occurring on its property. See Munsill v. United States, 14
F. Supp. 2d 214, 221 (D.R.I. 1998) (“Requiring a business owner to remove
snow before a storm ends would hold him to an extraordinary standard of
care, forcing him, in effect, to become an insurer of the safety of business
invitees.”); Martin v. Safeway Stores Inc., 565 P.2d 1139, 1141 (Utah 1977)
(“Owners of stores, banks, office buildings, theaters or other buildings
where the public is invited to come on business or for pleasure are not
insurers against all forms of accidents that may happen to any who come.
It is not the duty of persons in control of such buildings to mop the
sidewalk dry or take other steps necessary to prevent the accumulation of
moisture on the sidewalk that might freeze and create an icy condition.”).
The doctrine also allows businesses to remain open to travelers and
others who might need provisions or other supplies during a winter storm
by “alleviating the concerns of business owners that if they stay open
during a storm they will expose themselves to the expense of tort suits over
falls that are a natural risk in any storm situation involving icy or snowy
conditions.” Laine v. Speedway, LLC, 177 A.3d 1227, 1232 n.18 (Del.
2018). Relatedly, the doctrine helps to reduce the total number of weather-
related injuries by reducing the risk of injury to the land possessor and
the land possessor’s employees and contractors:
Every pedestrian who ventures out [when the weather renders
the premises slippery] knows he is risking the chance of a fall
and of a possible serious injury. It is a hazard to which nature
subjects all alike, him who undertakes to remove or correct it
as well as the one for whose protection the risk of removal or
correction is incurred. It would be an unreasonable rule
which would impose upon an inviter the necessity of repeated
excursions into the storm, with the attendant risks of
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exposure and injury to himself, in order to relieve the invitee
of all risk from this natural hazard.
Walker, 45 S.E.2d at 907.
Other courts have recognized these same public policy
considerations and continue to adhere to the continuing storm doctrine or
storm in progress doctrine. See, e.g., Phillips v. Superamerica Grp., Inc.,
852 F. Supp. 504, 506–07 (N.D. W.Va. 1994), aff’d, 54 F.3d 773 (4th Cir.
1995); Finnigan v. United States, No. 5:15-cv-3515-BHH-KDW, 2016 WL
5858715, at *7, *9 (D.S.C. Aug. 5, 2016); Kraus v. Newton, 558 A.2d 240,
243 (Conn. 1989); Laine, 177 A.3d at 1233; Jones v. Hansen, 867 P.2d
303, 311 (Kan. 1994); Mattson v. St. Luke’s Hosp. of St. Paul, 89 N.W.2d
743, 745 (Minn. 1958); Sherman v. N.Y. State Thruway Auth., 52 N.E.3d
231, 232 (N.Y. 2016); Fuller v. Hous. Auth. of Providence, 279 A.2d 438,
441 (R.I. 1971); Grizzell v. Foxx, 348 S.W.2d 815, 817 (Tenn. Ct. App.
1960); Walker, 45 S.E.2d at 904.
As these authorities show, the continuing storm doctrine reflects a
widespread policy consensus that land possessors should not be forced to
undertake snow or ice removal in the midst of a storm. The overall social
costs of requiring people to go outside and clear during a storm exceed the
overall social benefits of cleared passageways that will soon be covered
over by additional accumulation. This social consensus is reflected in
ordinances around our state that do not require land possessors to remove
snow from sidewalks until after the last snow accumulation. See, e.g.,
Ames, Iowa, Code § 22.2(2) (2017) (“No owner shall, for a period of ten (10)
daylight hours after the cessation of the storm or cause of accumulation,
permit snow, ice, or accumulations to remain upon the adjoining and
abutting sidewalks.” Emphasis added.)).
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In sum, the doctrine holds a land possessor has no duty to remove
the natural accumulation of snow or ice during an ongoing storm and for
a reasonable time after the cessation of the storm. The doctrine is
long-standing in Iowa. See Book v. Doublestar Dongfeng Tyre Co., 860
N.W.2d 576, 594 (Iowa 2015) (“Stare decisis alone dictates continued
adherence to our precedent absent a compelling reason to change the
law.”). The doctrine is consistent with the duty analyses of the
Restatement (Third). The doctrine is supported by public policy
considerations. The doctrine is the rule in a number of jurisdictions. We
decline Gries’s request to abandon the continuing storm doctrine.
III.
Gries contends, in the alternative, the district court erred in granting
Stonehaven’s motion for summary judgment. She contends Stonehaven
failed to establish the continuing storm doctrine entitled Stonehaven to
judgment as a matter of law. We agree.
The summary judgment record shows the following. On the night of
February 22, 2018, Gries exited her apartment building at approximately
10:30 p.m. to catch a cab and go to work. As she exited the building, Gries
noticed it was cold and misting outside. She saw the sidewalk looked wet.
She tested the sidewalk with her foot to check if it was icy. While taking
“baby steps” toward the cab, Gries slipped and fell on the icy sidewalk.
Gries was sixty-three years old at the time of the fall. The apartment
building had a large sign outside proclaiming the apartment was “Senior
and Mobility-Impaired Housing.” As a result of the fall, Gries broke her
left ankle and suffered other injuries.
The parties disputed the weather conditions at the time of the fall.
In support of its motion for summary judgment, Stonehaven submitted the
expert report of Dan Hicks. In preparing his report, Hicks relied on
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information from three agencies and “various weather reporting stations
in the Ames, Iowa area.” According to Hicks,
Precipitation was reported in the Ames, Iowa area on February
22 and early on February 23, 2018. Precipitation amounts for
this period were in the range of .21 to .32 inches, with some
trace amounts of snow reported. The automated weather
reporting station at the Ames, Iowa Airport reported some light
snow during the morning of February 22, 2018, then a brief
period of freezing rain around 12:00 to 1:00 PM CST.
Precipitation was again reported at this location starting
between 6:00 and 7:00 PM CST on February 22, 2018 and
continuing through the end of the day. There were times when
precipitation was not recorded during this period. The
precipitation type was reported as unknown and freezing rain,
changing to rain on the evening of February 22, as the air
temperature warmed from 32 degrees F. to slightly above
freezing. The air temperature at this location was reported at
32 degrees F. on the evening of February 22, 2018 through
around 9:00 PM CST, then in the range of 32 to 34 degrees F.
for the rest of the evening until Midnight CST. Precipitation
of unknown type was reported between 12:00 AM and 2:00
AM CST on February 23, 2018 with the air temperature at 32
degrees F.
Hicks opined,
[T]he precipitation that fell in the Ames, Iowa area on the
evening of February 22, 2018 would have resulted in some
light ice accumulation and also liquid water accumulation on
surfaces.
Gries submitted data from the National Oceanic and Atmospheric
Administration (NOAA) that indicated only “0.00 to 0.16 inches of rain or
melted snow fell . . . in the Ames area on February 22, 2018.” No snow,
ice pellets, or hail was recorded. According to the NOAA data, the weather
station at the Ames airport, which was 1.07 nautical miles from the
apartment, recorded no precipitation February 21 and only .16 inches of
precipitation in the form of mist, freezing rain or drizzle, and smoke or
haze on February 22.
The witnesses differed on the issue of whether snow and ice had
accumulated or were accumulating on the apartment grounds and
12
whether there was active precipitation at the time of Gries’s fall. Kevin
Burkett, an administrator for Stonehaven, testified in his deposition that
the sidewalk was clear of snow and ice at around four o’clock in the
afternoon. He also testified that if he “had known that it was raining or
ice was being created or there was snow,” a staff member would have called
the building’s snow-removal contractors to remove it. Gries testified she
did not know what the weather was like earlier in the day. But, as
discussed above, she remembered it was cold and misty and the sidewalk
looked wet at approximately 10:30 p.m. when she went outside.
On this record, the district court granted Stonehaven’s motion for
summary judgment. The district court found the parties’ evidence on the
weather conditions for that day did not differ. In the order granting
summary judgment, the district court mistakenly identified Hicks’s report
as evidence provided by Gries in her resistance to the motion for summary
judgment. Gries filed a motion to reconsider pursuant to Iowa Rule of Civil
Procedure 1.904(2). In ruling on Gries’s motion to reconsider, the district
court admitted it “garbled the sources of the weather.” It noted, however,
“the key point [was] that the weather reports do not really contradict each
other in any material way.” The court explained,
The one report from the site nearest to the scene of the
accident confirms [Hicks’s report]. Furthermore, plaintiff
herself admitted that at the time and date in question it was
misting, the sidewalk looked like it was wet and it was cold.
The court concluded,
[P]laintiff failed to show that a material fact issue exists as to
whether there was a continuing storm on the date and at the
place in question. The Court continues to find that it is an
undisputed fact that at all relevant times and at the location
of plaintiff’s apartment the air temperature fluctuated above
and below the freezing point and there was a continuous
period of some form of precipitation falling. The Court
continues to find that there was a continuous winter storm at
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the time in question and that the continuous storm doctrine
should be applied.
The district court’s sole focus on whether there was ongoing
precipitation at the time Gries fell misapprehends the continuing storm
doctrine. The doctrine is not “the continuing mist doctrine.” Mere
precipitation is not enough to constitute a storm sufficient to relieve a land
possessor of the duty to remove or ameliorate the natural accumulation of
snow or ice. Instead, there must be meaningful, ongoing accumulation of
snow or ice. Only a weather event satisfying this standard constitutes a
“storm” for the purposes of the continuing storm doctrine.
For example, in Reuter, we held the defendant was entitled to
directed verdict where the plaintiff fell during the middle of an ongoing,
severe snow storm. Specifically, on “the date of the accident, snow started
falling sometime in the forenoon. It continued to fall until some time after
the accident, gaining in volume as the day progressed. It was intermingled
with rain, sleet, driving winds and a subfreezing temperature. As stated
by several of the witnesses, it was the heaviest snow fall of the winter.”
Reuter, 244 Iowa at 941, 57 N.W.2d at 226. In concluding the defendant
was entitled to directed verdict, we explained the “general controlling
principle is that changing conditions due to the pending storm render it
inexpedient and impracticable to take earlier effective action, and that
ordinary care does not require it.” Id. at 943, 57 N.W.2d at 227 (quoting
Walker, 45 S.E.2d at 902).
Our courts have also concluded the continuing storm doctrine
relieves a land possessor of the duty to remove or ameliorate the natural
accumulation of snow or ice in less severe circumstances. In Hovden v.
City of Decorah, we concluded the defendant was entitled to judgment
notwithstanding the verdict when “a trace of snow was recorded” on the
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day of the plaintiff’s fall and “[i]t had been snowing off and on all morning.”
261 Iowa 624, 628, 155 N.W.2d 534, 537 (1968), superseded by statute,
1984 Iowa Acts ch. 1002, § 1. Yet in this case “it was still snowing” at the
time the plaintiff fell, and “[t]he snow continued until after the accident.”
Id. at 628–29, 155 N.W.2d at 537–38. In Rochford, the court of appeals
concluded “that the continuing storm doctrine—or ‘storm in progress’
doctrine—‘is not limited to situations where blizzard conditions exist; it
also applies in situations where there is some type of less severe, yet still
inclement winter weather.’ ” 845 N.W.2d at 718 (quoting Glover v.
Botsford, 971 N.Y.S.2d 771, 772 (App. Div. 2013)).
Although the weather conditions in Hovden and Rochford were not
as severe as those in Reuter, there was evidence establishing the weather
conditions were ongoing and were sufficiently severe that efforts to remove
or ameliorate the natural accumulation of snow or ice would have been
inexpedient or impracticable. See Hovden, 261 Iowa at 629–30, 155
N.W.2d at 538 (stating the “snow continued until after the accident” and
would have made it “inexpedient and impracticable” for the defendant to
clear the sidewalk (quoting Walker, 45 S.E.2d at 902)); Rochford, 845
N.W.2d at 717 ([T]he undisputed facts of the weather event rendered it
inexpedient and impractical for [the defendant] to have taken action before
[plaintiff’s] fall to remove the ice from the sidewalk and . . . it was not
necessary to decide whether the facts fit the definition of a ‘storm.’ ”).
When the record is undisputed that meaningful snow or ice
accumulation had begun and was ongoing at the time of the accident, then
it may be appropriate to hold the land possessor had no duty as a matter
of law. Thus, in Reuter, Hovden, and Rochford, the court was able to
determine, as a matter of law, the land possessor owed no duty because
there was an ongoing accumulation of snow or ice.
15
However, where, as here, a factual dispute exists as to whether there
was a continuing storm, the appropriate course is to instruct the jury on
the doctrine and leave the fact-finding to the jury. See Restatement (Third)
§ 7 cmt. b, at 79. (“When resolution of disputed adjudicative facts bears
on the existence or scope of a duty, the case should be submitted to the
jury . . . .”); see also Kraus, 558 A.2d at 243–44 (“Our decision, however,
does not foreclose submission to the jury . . . of the factual determinations
of whether a storm has ended or whether a plaintiff’s injury has resulted
from new ice or old ice when the effects of separate storms begin to
converge.”); Laine, 177 A.3d at 1230 (“[T]he reasonableness of any delay
[in clearing accumulations of ice and snow] should be treated as any
question of fact.”); Buchanan v. TD Bank, N.A., No. K15C–12–020 RBY,
2016 WL 3621102, at *2 (Del. Super. Ct. June 28, 2016) (denying
summary judgment where there were “questions of fact remaining
regarding the weather conditions at the time and location of the accident”);
Jefferson v. Long, No. 388/10, 2012 WL 3854864, at *4 (N.Y. Sup. Ct. Aug.
31, 2012) (“[N]otwithstanding defendant’s expert’s conclusion, courts have
held that trace precipitation does not constitute an ongoing storm. Thus,
there is a question of fact as to whether or not there was a storm in
progress at the time of plaintiff’s accident.” (Footnote omitted.) (Citation
omitted.)). Where the matter is submitted to the finder of fact, “the plaintiff
bears the burden of proof on facts necessary to establish a duty.”
Restatement (Third) § 7 cmt. b, at 79.
Thus, for example, in Wailes, the court of appeals concluded the
district court correctly gave a jury instruction on the continuing storm
doctrine when the plaintiff challenged the timing of the defendant’s snow
removal. 861 N.W.2d at 267–68. In Alcala, we vacated a plaintiff’s verdict
and remanded the matter for new trial due to several instructional errors.
16
880 N.W.2d at 700, 710–11 (majority opinion). In discussing the
application of the continuing storm doctrine on the facts of that case, we
recognized the issue was potentially a question of adjudicative fact for the
jury. See id. at 711 (“Because we have determined that the instructional
errors discussed above require a new trial, we need not decide whether the
district court erred by refusing Marriott’s requested instruction on the
continuing-storm doctrine. We recognize the issue will arise again on
remand if Marriott renews its request for an instruction on the doctrine.”).
The weather conditions in Alcala were similar to those here, including “fog
or mist,” “freezing rain or drizzle,” and “trace amounts of precipitation.”
Id. at 702.
Here, the summary judgment record does not establish as a matter
of law that there was an ongoing accumulation of snow or ice. The parties
dispute the weather conditions at the location in question. The weather
reports show at best only trace amounts of precipitation on and off
throughout the day in question. Indeed, the weather conditions were so
mild that Burkett concluded it was not even necessary to contact
Stonehaven’s snow-removal contractors to take action. On this record, the
district court erred in granting the defendant’s motion for summary
judgment.
IV.
For these reasons, we reverse the judgment of the district court, and
we remand this matter for further proceedings.
REVERSED AND REMANDED.
All justices concur except Appel, J., who concurs in part and
dissents in part.
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#19–1306, Gries v. Ames Ecumenical Housing
APPEL, Justice (concurring in part and dissenting in part).
I concur in the result in this case, but I dissent on the question of
the continued viability of the archaic, unworkable, and outmoded
continuing storm doctrine. Indeed, the slicing and dicing in this case is
an excellent example of why the doctrine should be abandoned.
At the outset, I agree that section 7 of the Restatement (Third) of
Torts does not preclude public policy exceptions to general rules of tort
liability. Restatement (Third) of Torts: Liab. for Physical & Emotional Harm
§ 7 (Am. Law Inst. 2010) [hereinafter Restatement (Third)]. But public
policy exceptions under section 7(b) of the Restatement (Third) are
necessarily antidemocratic because they rest on the view that our citizen
jurors are simply incapable of applying traditional tort law in certain
circumstances, or alternatively, that some special interest group or special
activity is so important in the eyes of judges, that the ordinary application
of tort rules of accountability cannot be enforced.
While the Restatement (Third) expressly permits such public policy
exceptions, such exceptions should be few and far between and only where
public policy is so compelling that the question of liability cannot be
entrusted to juries or fact-finding judges. See, e.g., John B. v. Super. Ct.,
137 P.3d 153, 161–62 (Cal. 2006) (“Although it is true that some
exceptions have been made to the general principle that a person is liable
for injuries caused by his failure to exercise reasonable care in the
circumstances, it is clear that in the absence of a statutory provision
declaring an exception . . . no such exception should be made unless clearly
supported by public policy.” (emphasis added) (quoting Rowland v.
Christian, 443 P.2d 561, 564 (Cal. 1968))). In addition, even when public
policy exceptions might be justifiable, they must be vigorously policed to
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prevent them from escaping their narrow confines. The fact that the
presence of a very fine mist is deemed by some to be sufficient to trigger
the continuing storm doctrine shows how elastic immunity doctrines may
become.
The so-called continuing storm doctrine is based on the proposition
that jurors are incapable of sorting through negligent handling of snow
and ice by premises owners from situations where it would be
unreasonable to expect a property owner from abating hazards.
Apparently, the fear is that jurors in Iowa would hold landlords liable when
they could not reasonably be considered at fault. But in Iowa, just about
everybody, at some time in their lives, has shoveled snow, put down ice
melt, and stared out the window wondering what next steps to take. I see
no reason to believe that Iowa jurors lack the capability to evaluate the
reasonability of a premises owner’s actions during inclement conditions.
The continuing storm doctrine takes that judgment away from
jurors, puts the judge in the driver’s seat, and then irrationally gives the
judge a limited toolbox to decide whether to take the case away from the
jury. The judge is to make arcane determinations, such as whether a
storm was in progress, whether it was continuous, and whether there was
a pause or break in the action sufficient to permit a lawsuit to proceed.
The casebooks groan with judicial efforts to make these fine distinctions,
based on slight variation in temperature, whether the rain was icy or not,
whether there was rain or mist, and whether there was actually a pause
or simply a lessening of the inclement weather. See generally, Landlord’s
Liability to Tenant or Tenant’s Invitee for Injury or Death Due to Ice or Snow
in Areas or Passageways Used in Common by Tenants, 49 A.L.R. 3d 387
(Originally published in 1973) (containing 103 pages of slice and dice case
squibs); Landlord’s Liability for Injury Caused by Accumulation of Snow
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and Ice on Common Areas of Leased Premises, 88 Am. Jur. Proof of Facts
3d 307 (Originally published in 2006) (containing 87 similar pages).
What is astonishingly not considered under the continuing storm
doctrine is the ability of the landowner to abate hazards. Apparently, the
wide availability of snow removal implements with climate controlled cabs,
powerful snow blowers, buckets of ice melt and convenient applicators,
and other snow removal devices is completely irrelevant on the question of
liability under the continuing storm doctrine. A storm is a storm is a
storm, apparently, regardless of the ability of the landowner to abate the
hazard. Such an approach is nonsensical. As noted by a Massachusetts
case in a snow and ice context,
[T]oday a landlord, armed with an ample supply of salt, sand,
scrapers, shovels and even perhaps a snow blower, can acquit
himself quite admirably as he takes to the common
passageways to do battle with the fallen snow, the sun-melted
snow now turned to ice, or the frozen rain.
Papadopoulos v. Target Corp., 930 N.E.2d 142, 152 (Mass. 2010) (quoting
Fuller v. Hous. Auth. of Providence, 279 A.2d 438, 440 (R.I. 1971)).
Further, the nature of the property use is irrelevant under our
current method of examination. The fact that the landlord was aware that
senior citizens used a sidewalk, for instance, during evening hours is
completely irrelevant if there is some ongoing precipitation. Really? The
walkway to a senior citizen center during a period of time when foot traffic
can be expected is treated the same as a walkway to nowhere in the dead
of winter that is rarely traversed by anyone.
Yes, the continuing storm doctrine remains the majority rule, but
there is a better-reasoned minority position. For example, in Budzko v.
One City Center Associates Limited Partnership, 767 A.2d 310 (Me. 2001),
the Maine Supreme Court rejected the rule as inconsistent with general
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tort duty. Id. at 314 n.3. Similarly, appellate courts in the states of
Indiana, Kentucky, Michigan, Nebraska, and Washington have rejected
the continuing storm doctrine. Henderson v. Reid Hosp. & Healthcare
Servs., 17 N.E.3d 311, 317 (Ind. Ct. App. 2014); Carter v. Bullitt Host, LLC,
471 S.W.3d 288, 299–300 (Ky. 2015); Lundy v. Groty, 367 N.W.2d 448,
449–50 (Mich. Ct. App. 1985); Danner v. Myott Park, Ltd., 306 N.W.2d 580,
583 (Neb. 1981); Cramer v. Van Parys, 500 P.2d 1255, 1262 (Wash. Ct.
App. 1972).
Of course, the above cases do not make the landlord an insurer, a
slogan frequently recited as received wisdom in support of the continuing
storm doctrine. As noted by the Kentucky Supreme Court,
It is true that no one controls the weather; but neither
is anyone reasonably expected to do so. A landowner is held
only to reasonable conduct. The gravamen of a tort claim has
always been that harm has come to a plaintiff because of the
unreasonable conduct of the tortfeasor. Such conduct need
only be the conduct that the ordinary person would not do
under the same circumstances, in order to be tortious.
Carter, 471 S.W.3d at 299–300.
Earlier this year, in April of 2020, a New Jersey appellate court took
the time to step back and carefully consider the merits of the continuing
storm doctrine. In Pareja v. Princeton International Properties, ___ A.3d ___,
2020 WL 1764922 (N.J. Super. Ct. App. Div. Apr. 9, 2020), the court
considered the question of whether the continuing storm doctrine relieves
commercial landowners from rendering their property safe while sleet or
snow is falling. Id. at *1. The Pareja court rejected the application of the
continuing storm doctrine. Id. The opinion thoroughly explores the issue
and, as such, is worth quoting at length.
Early on, the Pareja court announced its essential holding,
[A] commercial landowner has a duty to take reasonable steps
to render a public walkway abutting its property—covered by
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snow or ice—reasonably safe. Such a duty—to remove or
reduce a foreseeable hazard—cannot be fulfilled by always
waiting to act until after a storm ends, regardless of the risk
imposed to invitees and pedestrians.
Id. Like the Kentucky Supreme Court in Carter, the Pareja court also
addressed the argument that abolition of the continuing storm rule and
application of ordinary tort rules renders the landlord an insurer. Id. at
*6. The Pareja court stated that,
[W]e are not, as counsel say, imposing on the owner of the
premises a burden physically impossible to discharge or one
which makes the owner the guarantor of the safety of his
tenants and their guests. We do not hold there was an
absolute duty to provide a safe entrance or to keep it safe by
extraordinary or unusual means. If the storm made the
spreading of sand or ashes or some other preventive
impossible or even useless, no reasonable person would
expect it to be done.
Id. (quoting Pessagno v. Euclid Inv. Co., 112 F.2d 577, 579 (D.C. Cir.
1940)).
In justifying their rejection of the continuing storm doctrine, the
Pareja court noted the rigidity of the ongoing storm doctrine and its failure
to consider key factors undermines the policy of tort law. Id. at *8. In that
way, the court found,
Imposing a rigid judicial declaration that all action
would always be useless or excessive, ignores the main aim of
tort law, and overlooks situations where a commercial
landowner’s ordinary effort to remove or reduce snow and ice
hazards would be reasonable. To permit commercial
landowners under every circumstance to wait until the end of
a storm before taking any reasonable precautions, or to
attempt removing or reducing known precipitation hazards,
would arbitrarily create a rigidity in the law inconsistent with
the innumerable variables that are possible.
Id.
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Finally, the Pareja court listed a number of factors that a jury might
consider in determining the reasonableness of a commercial owner’s
conduct. According to the Pareja court, a jury could consider
(1) Whether any action would be inexpedient or impractical;
(2) the extent of the precipitation, including the amount of
snow or ice accumulation; (3) the timing of the precipitation,
whether it’s day or night; (4) the nature of the efforts, if any,
to prevent, remove, or reduce snow or ice accumulation,
especially whether conditions were so hazardous as to make
it unsafe for the landowner or any contractor to venture out
in the elements; (5) the minimal usage consequent on a
“closed” facility in contrast to a normal work week; (6) the
number of individuals expected to use the public sidewalk,
premises, and the area in need of attention; (7) the past,
current, and anticipated weather conditions, including but
not solely dependent on reliable weather predictions, and the
practicality of reasonable safety measures or methods of
ingress or egress; and (8) any other relevant factors.
Id. at *10.
In my view, the continuing storm doctrine is an approach to tort law
that has long outlived whatever usefulness it might have once had. I would
abandon it and allow tort claims involving snow and ice be treated like any
other claim. A brittle, categorical doctrine that relies on fine distinctions
and excludes consideration of important factors has little to nothing to
commend it. Our citizen jurors are perfectly capable of considering prosaic
snow and ice issues without the unnecessary intervention of judges with
poorly designed tools that prevent accountability in tort in cases where it
should reasonably be imposed.
For the above reasons, I would reverse and remand the case for trial
on the merits.