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The "Storm-In-Progress" Doctrine Should Allow a Business a Reasonable Time After the Cessation of the Storm To Start Snow/Ice Removal

June 1, 2009

Federal - Premises Liability (Snow & Ice Removal)

In many of the United States, snowfall generally occurs during the winter months. Despite warnings from public safety officials, people travel in snow storms to transact business they deem necessary or desirable. They may slip, fall, and injure themselves while the snow is falling. That raises the issue of the duty of the owner/occupier of the premises to such persons in the event of a lawsuit.

A number of courts have addressed this legal issue. It is generally described as the "Storm-In-Progress" or "Ongoing Storm" Doctrine. Some of those legal analyses are discussed below.

In Munsill v. United States, 14 F.Supp.2d 214 (D.R.I. 1998), a plaintiff slipped and fell at the entrance of a U.S. Post Office building in Rhode Island. Snow had began to fall in the early morning hours and continued to fall as the plaintiff proceeded to the entrance and for several hours thereafter. The post office had not made any snow removal efforts. There were about three inches of snow accumulation. The court held:

The majority of jurisdictions follow what New York has labeled the "storm in progress" doctrine, where an occupier of business premises "is afforded a reasonable time after the cessation of the storm or temperature fluctuations. . .to correct the situation." Olejniczak v. E.I. Du Pont De Nemours and Co., 998 F. Supp. 274, 280 (W.D.N.Y. 1998). See also Sinert v. Olympia Dev. Co., 38 Conn. App. 844 (Conn. App. Ct. 1995) (holding that absent unusual circumstances, defendant may await the end of a storm before removing snow and ice from walks and steps; defendant need not engage in impractical effort with uncontrollable forces, and commercial property owner status does not warrant a higher duty of care than that imposed upon private property owner); Fusco v. Stewart's Ice Cream Co., 610 N.Y.S.2d 642, 643 (N.Y. App. Div. 1994) (owner of convenience store had reasonable time after cessation of storm to correct icy conditions; commercial nature of store did not create heightened duty to correcting storm-created hazardous ice and snow conditions). Phillips v. Superamerica Group, Inc., 852 F. Supp. 504, 507 (N.D.W.Va. 1994), aff'd 54 F.3d 773 (4th Cir. 1995) (gas station was under no duty to remove snow from premises during storm, and thus was not liable to invitee for injuries sustained in slip and fall); Mattson v. St. Luke's Hosp. of St. Paul, 252 Minn. 230, 89 N.W.2d 743, 745-46 (Minn. 1958) ("reasonable care for the safety of an invitee does not require an inviter to engage in an unending and impractical, if not useless, contest with the uncontrollable forces of nature while a storm is in progress"; therefore, absent extraordinary circumstances, hospital could await end of freezing rain and sleet storm, and had reasonable time thereafter to remove ice and snow from its entrance).

The U.S. District Court cited Barenbaum v. Richardson, 114 R.I. 87 (1974) which " the impracticality of mandating snow removal efforts before the cessation of a snowstorm, stating, '[a] landlord is not required to be at his property, shovel in hand, catching the flakes before they hit the ground.'" The U.S. District Court reasoned that the landlord is not a "guarantor" of his tenants' safety. Id. (citing Fuller v. Housing Authority of Providence, 108 R.I. 770, 279 A.2d 438, 441 (1971).)

This Court concludes that the Rhode Island Supreme Court, when the occasion presents itself, will follow the majority approach discussed supra, and will apply the Fuller and Barenbaum rule to a business owner, i.e., allowing that owner to have a reasonable time after the cessation of a storm to remove snow from walkways and entrances. A business invitor, like a landlord, is not an "insurer[.]" See McVeigh v. McCullough, 96 R.I. 412, 192 A.2d 437, 441 (R.I. 1963). Indeed, the Supreme Court has noted that an occupier of land is only bound to use "ordinary care and diligence to keep the premises in a safe condition for the access of persons who come thereon by his invitation, express or implied, for the transaction of business, or for any other purpose beneficial to him." DeMello v. St. Thomas Apostle Church Corp. Of Warren, 91 R.I. 476, 165 A.2d 500, 502 (R.I. 1960) (emphasis added) (quoting 4 Shearman & Redfield, Negligence (Rev.Ed.) ยง779, p.1783); See Reddington v. Getchell, 40 R.I. 463, 101 A. 123, 125 (R.I. 1917). 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. Moreover, requiring a business invitor to implement snow removal during a snowstorm is highly "inexpedient" and "impractical." See Kraus v. Newton, 211 Conn. 191, 558 A.2d 240, 243 (Conn. 1989). Shoveling against a snowstorm is like shoveling sand against the tide. Such a battle is no more easily won by a business owner than a landlord. Thus, the reasonable rule is that an occupier of business premises has until the end of a snowstorm to remove accumulations of snow and ice.

In Kraus v. Newton, 211 Conn. 191, 198, fn. 2 (1989), which was cited in Munsill, the Connecticut Supreme Court stated that the rule it was adopting "comports...with the well established rule of law in other jurisdictions."

In Agnew v. Dillons, Inc., 16 Kan. App. 2d 298 (App. Ct. 1991), a patron slipped and fell on a ramp while leaving a grocery store. An ice storm was in progress that morning. The manager testified that a sleet-type precipitation was then falling. The trial entered a directed verdict for the defendant. The plaintiff appealed. The appellate court held:

When confronted with the precise issue of whether a business proprietor breaches this duty of ordinary care by not removing accumulated ice, snow, or other precipitation from outside areas during a storm, other jurisdictions have held the duty is not breached. Walker v. The Memorial Hospital, 187 Va. 5, 45 S.E.2d 898 (1948), is a case often cited in support of this rule. In Walker, the plaintiff arrived at the hospital at 4:30 p.m. to visit her husband, a patient. The steps outside the hospital entrance were not ice covered, but snow had been swept to the sides of the steps and the platform leading to the door. 187 Va. at 9. Snow had fallen that morning and between the hours of 2 p.m. and 5 p.m. the steps were wet although not frozen at 6 p.m. About 6 p.m., freezing rain fell, and the steps became slippery about 7 p.m. Around 8:30 p.m., a light freezing rain fell. 187 Va. at 10-11. The plaintiff did not know snow had fallen during the afternoon. She left the hospital at 9 p.m. and, as she started down the steps, she placed her hand on the handrail. There appeared to be no ice on the steps, but as the plaintiff stepped down on the second step, she slipped and fell. The area had not been treated with an ice-melting substance nor had any warning signs been posted. No precipitation was falling at the time of the plaintiff's slip and fall. 187 Va. at 9.

The Walker court noted "there was a fairly continuous condition of freezing rain or sleet from before seven o'clock until eleven-thirty p.m., and that the conditions on the city sidewalks, and on the platform and steps of the hospital, were slippery, and that this was known to the hospital authorities." 187 Va. at 11. The court then concluded that a business establishment, absent unusual circumstances, may await the end of a storm and a reasonable time thereafter to remove ice and snow from outdoor entrance walks, platforms, or steps because it is impractical to take action earlier. 187 Va. at 13.

The court further reasoned that "every pedestrian who ventures out at such time knows [he or she] is risking the chance of a fall and of a possible serious injury." 187 Va. at 22. A requirement that a business proprietor continually expend effort during a winter storm to remove precipitation from outdoor surfaces would essentially be a requirement to insure the safety of invitees and is a burden which is beyond that of ordinary care. Furthermore, "since the storm had not finally terminated, the exercise of reasonable care no more required defendant to warn of the result of the weather than it did to remedy the result." 187 Va. at 24. Ultimately, the Walker court affirmed the action of the trial court in setting aside the jury's verdict for the plaintiff. 187 Va. at 24.


The reasoning of the cited cases holding that a business proprietor, absent unusual circumstances, does not breach the duty of ordinary care by not removing snow or ice from outdoor surfaces during a storm and a reasonable time thereafter is sensible and persuasive. A business would have to continuously devote time and effort to keep outdoor surfaces precipitation-free during a storm. We believe such an effort to be quixotic. Additionally, invitees using or traversing outdoor areas should be aware of the weather and its probable effect on those surfaces.

In Phillips v. Superamerica Group, Inc., 852 F.Supp. 504, 504 (N.D.W.V. 1994), the plaintiff slipped and fell on a patch of ice at a gas station. A snowstorm was then in progress, and everything was snow covered. The defendant moved for summary judgment on the basis that it had no duty, as a matter of law, to the plaintiff during the pendency of the snowstorm.

The court granted the motion. The court held:

Although [cited cases] stand for the proposition that a landowner must maintain its property in a reasonably safe condition, they do not specifically address the instant issue, that is, the duty of a landowner to remove snow and ice from its premises during the pendency of a snowstorm.

* * *

In the instant matter, plaintiff held the status of an invitee when he entered the defendant's premises, and accordingly, is entitled to all the duties owed to an invitee, as set forth in [the cited cases]. In other words, defendant had the duty to exercise ordinary care in keeping and maintaining his premises in a reasonably safe condition. Further, following the sound reasoning in Walker v. Memorial Hospital and the cases adopting the general rule of Walker, the Court finds that it is reasonable, and the exercise of ordinary care, for the landowner to await until the end of a snowstorm before removing the snow and ice from his premises.

Some of the above-cited authorities, in particular Walker, leave open the possibility that special or unusual circumstances may exist that may result in the premises owner or occupier having a duty to begin snow removal during the pendency of the storm. An example of such an unusual circumstance might be a business that specifically advertised for, or otherwise induced, customers to patronize its premises while the snow was falling, i.e., if the business were selling snow shovels, sand, salt, or other goods that could reasonably be expected to be purchased during a snow storm. A plaintiff would likely assert that if any business were actually open during the storm, then that business should be seen as inviting customers to visit the premises and, therefore, should not be permitted to remain idle and allow the snow or ice to accumulate.

However, it should be remembered that in Nelson v. Great Atlantic & Pacific Tea Company, 48 N.J. Super. 300, 305 (App. Div. 1958), the New Jersey intermediate appeals court reaffirmed the principle that the proprietor of a store is "not an insurer" of his patrons' safety.

*Nicholas is an associate in our Cherry Hill, New Jersey, office who can be reached at (856) 414-6015 or

Defense Digest, Vol. 15, No. 2, June 2009

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