Karen Rochford and Jude Rochford v. G.K. Development, Inc.

IN THE COURT OF APPEALS OF IOWA
No. 3-1117 / 13-0691
Filed February 5, 2014
KAREN ROCHFORD and JUDE
ROCHFORD,
Plaintiffs-Appellants,
vs.
G.K. DEVELOPMENT, INC.,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Joel A.
Dalrymple, Judge.
The plaintiffs appeal the district court’s grant of summary judgment to the
defendant asserting an issue of fact exists regarding whether there was a storm
at the time the plaintiff fell on the ice. AFFIRMED.
Christopher F. O’Donohoe of Elwood, O’Donohoe, Braun & White, New
Hampton, for appellants.
James W. Bryan of Law Offices of Daniel Hansen, West Des Moines, for
appellee.
Heard by Danilson, C.J., and Vaitheswaran and Mullins, JJ.
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MULLINS, J.
Plaintiffs, Karen and Jude Rochford, sued G.K. Development, owner of the
College Square Mall in Cedar Falls, over injuries Karen sustained when she fell
on an icy sidewalk outside the mall. G.K. Development filed a motion for
summary judgment, asserting it was entitled to await the end of the storm before
it attempted to remove the ice from the sidewalk. The district court agreed and
granted the summary judgment motion. The Rochfords appeal asserting there
remains a question of fact as to whether the weather event was in fact a storm
that would excuse G.K. Development’s failure to remove the ice on the sidewalk.
The deposition testimony of both Karen and Jude indicated that they
remembered the weather to be cold and drizzly when they entered the mall
around 2:00 p.m. on December 23, 2009. When they left two hours later, Karen
became immediately aware of a change in the weather when the precipitation hit
her in the face, and she noticed it had changed to freezing rain. Karen also
noticed the parking lot had turned slushy. She acknowledged shuffling her feet
to see if the sidewalk was icy when she first exited the mall. Someone had put
pellet ice melt on the sidewalk immediately outside the mall entrance door, so the
sidewalk was not icy in that location. As she walked down the sidewalk toward
her vehicle, the sidewalk sloped down for handicap access approximately forty
feet from the door. She did not see any ice melt on this part of the sidewalk and
knew she had to be more cautious. Karen fell on the slope.
Karen submitted meteorological data from the date of the fall in her
resistance to the summary judgment motion. She contends it shows the
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temperature hovered right around thirty degrees, with freezing rain during the
time she and her husband were in the mall. The wind speed was recorded
ranging from twenty to twenty-five miles per hour with gusts recorded up to thirty-
two miles per hour. The total precipitation recorded during this time was around
0.06 of an inch. The data also showed the freezing rain and mist continued until
10:30 p.m. when the temperature rose above freezing and the precipitation
changed to rain.
In granting the summary judgment motion to G.K. Development, the
district court relied on our supreme court’s decision in Reuter v. Iowa Trust &
Savings Bank, 57 N.W.2d 225, 227 (Iowa 1953), wherein the court approved of
the Virginia court’s adoption of the continuing storm doctrine:
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 inexpedient and impracticable to take earlier
effective action, and that ordinary care does not require it.
(citing Walker v. Mem’l Hosp., 45 S.E.2d 898, 902 (Va. 1948)) (internal quotation
marks omitted).
Karen asserts here, as she did in resistance to the summary judgment
motion, that the weather event that day does not constitute a “storm” as
described in Reuter, 57 N.W.2d at 227. She also contends that the evidence of
ice melt on the sidewalk immediately outside the mall entrance shows that it was
in fact expedient and wholly practical to deice the sidewalks while the weather
event was ongoing. She contends it was improper for the district court to grant
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summary judgment to G.K. Development when these fact issues remain
unresolved.1
In granting summary judgment the district court stated, in part:
Although a question of fact exists as to whether a “storm” existed at
the time of the injury, the Court interprets Reuter and the other
relevant citations provided as a focus upon weather conditions
consistent with the accumulation of ice as experienced in this
instance. The Court finds that the general controlling principle as
outlined above relating to the weather conditions due to the
pending storm (a/k/a rain, drizzle, and subsequent accumulation of
ice) renders it inexpedient and impracticable for the defendant to
take earlier effective action until the conclusion of the storm and
that ordinary care does not require it.
The district court appears to have decided as a matter of law that the undisputed
facts of the weather event rendered it inexpedient and impractical for G.K.
Development to have taken action before Karen’s fall to remove the ice from the
sidewalk and that it was not necessary to decide whether the facts fit the
definition of a “storm.”
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Karen also asserts that she holds the status of an invitee and is owed the highest duty
of care. The supreme court abolished the distinction in the duty of care owed to invitees
and licensees in Koenig v. Koenig, 766 N.W.2d 635, 643–44 (Iowa 2009). Instead, the
court adopted a multifactor approach that imposes on all owners and occupiers of
property “only the duty to exercise reasonable care in the maintenance of their premises
for the protection of lawful visitors.” Koenig, 766 N.W.2d at 645–46. The court
considers the following factors when evaluating whether reasonable care has been
exercised:
(1) the foreseeability or possibility of harm; (2) the purpose for which the
entrant entered the premises; (3) the time, manner, and circumstances
under which the entrant entered the premises; (4) the use to which the
premises are put or are expected to be put; (5) the reasonableness of the
inspection, repair, or warning; (6) the opportunity and ease of repair or
correction or giving of the warning; and (7) the burden on the land
occupier and/or community in terms of inconvenience or cost in providing
adequate protection.
Id. at 646. We therefore reject Karen’s claim that she is owed the “highest” duty of care
and impose on G.K. Development only the duty to exercise reasonable care.
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In Reuter, the supreme court approved of the district court’s grant of the
defendant landowner’s directed verdict motion. 57 N.W.2d at 228. The plaintiff
had fallen on snow packed stairs about 5 p.m. in the evening. Id. at 226. The
evidence showed the snow started falling in the morning and continued until
sometime after the fall, “gaining in volume as the day progressed.” Id. The court
approved of its previous holding in the Parson v. H.L. Green Co., 10 N.W.2d 40,
42 (Iowa 1943), wherein the court stated: “We cannot say that a failure to follow
and remove immediately every deposit of snow that is brought into a building can
reasonably be held to be a breach of duty which the inviter owes to an invitee
and so constitutes negligence.”
This doctrine was approved again by the supreme court in Hovden v. City
of Decorah, 155 N.W.2d 534 (Iowa 1968), superseded by statute, 1984 Iowa
Acts ch. 1002, § 1, as recognized in Hopping v. College Block Partners, 599
N.W.2d 703, 705 n.1 (Iowa 1999). There, the plaintiff fell on the city sidewalk
covered in slush and ice. Hovden, 155 N.W.2d at 537. The court noted the
snow started falling the afternoon before the fall, it was snowing off and on the
morning of the fall, and it was still snowing when the plaintiff was taken to the
hospital immediately after her fall. Id. The supreme court concluded the district
court should have granted the defendant’s motion for judgment notwithstanding
the verdict as the evidence was not sufficient to raise a jury question as to the
defendant’s negligence because there was no showing how long the dangerous
sidewalk condition had existed and the evidence showed the city would not have
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had a reasonable opportunity to remedy the condition due to the continuing
snow. Id. at 538.
While there is no Iowa case law that addresses how severe or significant
the weather event has to be to qualify as a “storm,” other jurisdictions have
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.” Glover v. Botsford, 971 N.Y.S.2d 771, 772 (N.Y. App. Div. 2013). In
Convertini v. Stewart’s Ice Cream Co., 743 N.S.Y.2d 782, 783 (N.Y. App. Div.
2002), the court applied the “storm in progress” doctrine to dismiss the plaintiff’s
claim on summary judgment where evidence showed “light freezing rain” fell for
an hour the morning of the fall and had stopped just twenty minutes before
plaintiff fell. The Virginia Supreme Court asserted “a storm does not have to be
‘raging’ in order for a business inviter to wait until the end of the storm before
removing ice and snow.” Amos. v. NationsBank, N.A., 504 S.E.2d 365, 367–68
(Va. 1998) (affirming the setting aside of a jury verdict the despite plaintiff’s
testimony that there was only “light drizzle” at the time of the fall where the
evidence overwhelmingly showed an ongoing ice storm with precipitation falling
and freezing on the ground).
The evidence here establishes that at the time of the plaintiff’s fall at
around 4:00 p.m. freezing rain was falling and continued falling until around
10:30 p.m. when the temperature rose above freezing. This freezing rain
resulted in the sidewalks icing over, leading to Karen’s fall. The freezing rain had
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not stopped before Karen’s fall, so the landlord was not yet under a duty to take
steps to remove the ice. Whatever this “weather event” is called, we find it was
of sufficient significance to qualify for the application of the continuing storm
doctrine. We affirm the district court’s grant of summary judgment for G.K.
Development as there was no factual issue to present to the jury. See
Underwood v. Estate of Miller, No. 10-0052, 2010 WL 3503959, at *1 (Iowa Ct.
App. Sept. 9, 2010) (finding the evidence generated a fact question about when
the storm stopped so the case was properly submitted to the jury).
AFFIRMED.