Although winter seems like a distant memory for most, claims arising out of slips and falls related to snow and ice claims still seem to accumulate. Whenever it snows, commercial property owners are faced with the burden of removing snow and ice hazards from their premises or facing legal action should a pedestrian slip and fall and injure himself/herself. Specifically, a landowner has an affirmative duty to keep premises reasonably safe by removing accumulations of snow and ice. Commercial landowners continue to be sued despite their efforts to do so; however, the Delaware Superior Court has for the first time recognized the expertise required in carrying out these efforts.
On December 12, 2017, Delaware Superior Court Judge John A. Parkins issued a decision that could potentially curb some of the more futile snow and ice removal litigation. Judge Parkins opined that a plaintiff must proffer expert testimony when disputing the reasonableness of ice remediation efforts. Prior to this decision, the question of whether snow and ice remediation was left to a layman jury which often resulted in early settlements to avoid the risk of trial.
Specifically, in Ridgway v. Acme Markets et al, C.A. N16A-01-183 JAP (Del. Super. Dec. 2017) , a Plaintiff sued after she slipped and fell on ice in the parking lot alleging that ACME Markets, its landlord, and the snow removal contractor were negligent in their efforts to remove snow and ice from their premises. However, the unrebutted evidence revealed that in the days prior to the Plaintiff’s slip and fall, the parking lot was plowed, the walkways were shoveled twice, salt was applied to the parking lot five times and calcium chloride was applied to the sidewalks twice. The Defendants moved for summary judgment arguing, among other things, that expert testimony was required to show that the efforts to keep the parking lot clear were unreasonable.
At oral argument, Franklin & Prokopik’s Eric S. Thompson successfully argued that the methodology of removing snow and spreading salt on a commercial property is beyond the purview of a lay person and requires scientific, technical, or specialized knowledge. He further argued, that the performance of ice remediation on a commercial property should not be discounted to a trivial exercise and is one which requires knowledge of the property, the impact of weather and temperature on the substance being applied, and how best to apply the ice remediation substance.
Judge Parkins in granting summary judgment agreed and held that:
The accumulation of snow and ice is a natural occurrence. The mere presence of ice in a parking lot does not, without more, establish negligence. Even using every available measure to make the premises safe, a defendant cannot be expected to remove every single snowflake or patch of ice from the premises. In order to understand what is needed and is reasonable under the circumstances to meet an industry standard, expert testimony is required.
In a case of first impression in Delaware, Judge Parkins granted Defendants’ Motion for Summary Judgment for Plaintiff’s failure to retain a liability expert.
If you have additional questions on Delaware premises liability or commercial landowner’s obligations for snow and ice removal, please contact our Delaware office at 302.594.9780.