Opinion
C.A. No: K15C-12-020 RBY
04-07-2017
DENISE BUCHANAN, Plaintiff, v. TD BANK, N.A., TD BANK US HOLDING CO., MERIT SERVICE SOLUTIONS, LLC, JT SNOW REMOVAL, INC., and JERRY TAYLOR, Defendants.
William D. Fletcher, Jr., Esquire, Schmittinger & Rodriguez, P.A., Dover, Delaware for Plaintiff. Robert D. Cecil, Jr., Esquire, Tybout, Redfearn & Pell, Wilmington, Delaware for Defendants
Upon Consideration of Defendants' Renewed Motion for Summary Judgment
GRANTED
ORDER
William D. Fletcher, Jr., Esquire, Schmittinger & Rodriguez, P.A., Dover, Delaware for Plaintiff. Robert D. Cecil, Jr., Esquire, Tybout, Redfearn & Pell, Wilmington, Delaware for Defendants Young, J.
SUMMARY
TD Bank, N.A., TD Bank Holding Co. (Collectively "TD Bank"), Merit Service Solution, LLC, a Delaware Limited Liability Company, JT Snow Removal, Inc., and Jerry Taylor ("Defendants") move for summary judgment in a premises liability action against Denise Buchanan ("Plaintiff"). There is no dispute that the storm was ongoing when Plaintiff allegedly fell. Therefore, the continuing storm doctrine applies, and Defendants' motion is GRANTED.
FACTS AND PROCEDURE
Plaintiff alleges that on January 10, 2014, at approximately 8:00 a.m., she fell, and was injured, on ice outside of TD Bank's 758 North Dupont Highway, Dover, Delaware location as she was attempting to reach their ATM machine. Plaintiff maintains that TD Bank's ATM service was available 24 hours a day and 7 days a week.
Defendants' expert's report indicates that a storm caused sleet, freezing rain, rain, and drizzle to fall from 6:02 a.m. through 11:25 p.m. on January 10, 2014; that the same storm caused freezing rain to fall at 7:53 a.m.; and that, by 7:53 a.m, the storm caused less than 0.1 of an inch of ice to accumulate. Further, Plaintiff testified that from the time she left her house until her alleged fall it was raining outside and that, after her alleged incident, a bank employee shielded her from the rain with an umbrella.
Plaintiff asserts that Defendants had a procedure in place that mandated that JT Snow Removal take steps to prevent accumulation of ice prior to storms. A contract, to which JT Snow Removal was a party, provided that "the subcontractor will apply ice melt (sand/salt mix) prior to ice or snowfall or during ice or snow storms." Plaintiff alleges that, at the time she fell, there was no evidence of salt on the ground. Defendant Jerry Taylor testified that he received notification of the storm around 3:00 or 4:00 a.m, and JT Snow Removal put salt down, at the TD Bank location, around 5:00 or 6:00 a.m.
JT Snow Removal was the subcontractor for the purposes of the agreement.
On December 14, 2015, Plaintiff filed the instant Complaint. Defendants first filed a motion for summary judgment on April 20, 2016. This Court denied that motion because it was filed before the parties had an opportunity to conduct discovery fully. Defendants filed their Renewed Motion for Summary Judgment on January 31, 2017.
Defendants Merit Service Solutions, LLC, JT Snow Removal, Inc., and Jerry Taylor filed that initial motion. Defendants TD Bank, N.A. and TD Bank US Holding Co. later joined in that motion.
Defendants also have a pending motion in limine.
STANDARD OF REVIEW
Summary judgment is appropriate where the record exhibits no genuine issue of material fact, and the movant is entitled to judgment as a matter of law. This Court shall consider the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any" in deciding the motion. The moving party bears the initial burden of demonstrating the nonexistence of material issues of fact. The burden then shifts to the nonmoving party to show that there are material issues of fact in dispute. The Court views the record in the light most favorable to the nonmoving party. When material facts are in dispute, or "it seems desirable to inquire more thoroughly into the facts, to clarify the application of the law to the circumstances," summary judgment will not be appropriate. However, when the facts permit a reasonable person to draw but one inference, the question becomes one for decision as a matter of law.
United Vanguard Fund, Inc. v. Takecare, Inc., 693 A.2d 1076, 1079 (Del. May 22, 1997).
Del. Super. Ct. Civ. R. 56(c).
Fauconier v. USAA Cas. Ins. Co., 2010 WL 847289, at *2 (Del. Super. Mar. 1, 2010).
Id.
Moore v. Sizemore, 405 A.2d 679, 680 (Del. Aug. 6, 1979).
Sztybel v. Walgreen Co., 2011 WL 2623930, at *2 (Del. Super. June 29, 2011).
Wootten v. Kiger, 226 A.2d 238, 239 (Del. 1967).
DISCUSSION
Defendants assert that they had no duty to begin ice removal prior to the Plaintiff's fall. Thus, they argue, summary judgment is appropriate in the instant matter, because Plaintiff alleges she was injured, when she slipped on ice, during a freezing rain storm.
Defendants are correct. Although an owner or occupier of land owes invitees "an affirmative duty to keep the premises reasonably safe from the hazards associated with natural accumulations of ice and snow," the continuing storm doctrine dictates that "a landowner engages in 'reasonable conduct' by waiting until the end of a storm before commencing snow removal operations." Further, a storm's severity does not impact the doctrine's application. Hence, Defendants are not liable for alleged injuries resulting from Plaintiff's fall, in the midst of a storm the parties do not dispute contained freezing rain, or less than 0.1 of an inch of ice.
Delaware courts have interchangeably used a duty and breach analysis when determining continuing storm doctrine cases. Day v. Wilcox Landscaping, Inc., 2017 WL 816456, at *3 n.29 (Del. Super. Feb. 28, 2017). While in some continuing storm cases the determining factor may be whether the court approaches the case from a duty or breach vantage point, in this case the distinction is not outcome determinative. See Elder v. Dover Downs, Inc., 2012 WL 2553091, at *3-4 (Del. Super. July 2, 2012).
Woods v. Prices Corner Shopping Ctr. Merchs. Ass'n, 541 A.2d 574, 577 (Del. Super. Apr. 7, 1988).
Elder, 2012 WL 2553091, at *2.
Cash v. East Coast Prop. Mgmt., Inc., 2010 WL 2336867, at *1-2 (Del. Super. June 8, 2010), aff'd, 7 A.3d 484 (Del. Oct. 29, 2010) (TABLE).
Plaintiff counters with two arguments. First, Plaintiff asserts that Defendants did not take reasonable steps to prevent ice and snow accumulation, prior to the storm, in breach of an ostensible duty to do so, in the absence of an agreement. Alternatively, Plaintiff argues that JT Snow Removal, Inc.'s agreement to provide TD Bank with snow removal services "prior to or during ice or snow storms" creates a duty to take reasonable steps to prevent ice and snow accumulation prior to winter storms.
I. Defendants Do Not Owe Plaintiff a Duty to Take Reasonable Steps to Prevent Ice and Snow Accumulation Prior to a Storm in the Absence of an Agreement
Plaintiff's argument with respect to common law duty fails for two reasons. First, Day v. Wilcox Landscaping, Inc. demonstrates that there is not a common law duty to take reasonable steps to prevent ice and snow accumulation prior to a storm. In Day, a woman fell, at her workplace, during a snowstorm. The defendants did not apply salt to the parking lot in which the woman fell until after the snowstorm. The woman argued that the continuing storm doctrine did not bar her recovery, because the defendants failed to take reasonable pre-storm steps to prevent the natural accumulation of ice and snow. The Court held that the defendants owed no duty to undertake such action, in part, because the woman did not provide legal authority supporting her contention that a duty to take reasonable pre-storm steps to prevent the natural accumulation of ice and snow existed and imposing such a duty would "swallow" the continuing storm doctrine. This case is the same as the Day case in all relevant respects. Plaintiff alleges she fell during a storm. Thus, Defendants' actions prior to the storm are irrelevant.
Day, 2017 WL 816456, at *1-2.
Id. at *2.
Id. at *5.
Id.
Nevertheless, Plaintiff maintains that Day does not apply to this case because, unlike the woman in Day, she has authorities indicating Defendants must take reasonable steps to prevent ice and snow accumulation prior to a storm. The authorities she provides, in support of a duty to take pre-storm efforts to prevent the accumulation of ice and snow, are inapposite. Both of the opinions that Plaintiff provides - Isaacson v. Husson College and Honolulu Limited v. Cain - were issued in jurisdictions other than Delaware, where the continuing storm doctrine is robust. Further, both address situations in which the alleged injury resulting from snow or ice accumulation occurred at least one day after the conclusion of a storm rather than during a storm.
Isaacson v. Husson Coll., 297 A.2d 98 (Me. Nov. 14, 1972).
Honolulu Ltd. v. Cain, 224 A.2d 433 (Md. Dec. 8, 1966).
In Isaacson, the alleged injury happened roughly one day after the storm's conclusion. Isaacson, 297 A.2d 98, 101-02. In Honolulu, the alleged injury happened eight days after the storm's conclusion. Honolulu Ltd., 224 A.2d 433, 434.
Nevertheless, Plaintiff maintains that Day does not apply to this case, because Day did not involve landlord defendants, whereas, the instant case does. Applying the Day decision only to contractors would run counter to public policy. One reason for creating the continuing storm doctrine was to protect landowners from having to go into dangerous conditions to clear snow or ice during a storm. If the continuing storm doctrine mandated that landowners make pre-storm efforts to prevent natural ice or snow accumulation, then those landowners who failed to take such efforts would be forced to clear their property of ice or snow hazzards during storms.
Day, 2017 WL 816456, at *3.
The second reason Defendants do not owe Plaintiff a duty to take reasonable steps to prevent natural ice and snow accumulation, prior to a storm, in the absence of an agreement, is that imposing such a duty would run counter to Young v. Saroukos and Cash v. East Coast Property Management, Inc. In Young, the Delaware Superior Court recognized the general rule that landlords, carriers, and other inviters have an ongoing duty to keep the premises reasonably safe from natural accumulations of ice and snow. In so doing, the court also recognized the continuing storm doctrine:
185 A.2d 274 (Del. Super. Oct. 24, 1962).
2010 WL 2336867, at *1-2 (Del. Super. June 8, 2010), aff'd, 7 A.3d 484 (Del. Oct. 29, 2010) (TABLE).
Young, 185 A.2d at 282.
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.
Id.
As noted, the doctrine applies when it is inexpedient and impracticable to take earlier effective action. In this case, Plaintiff has attempted to highlight facts that would suggest that action, prior to the beginning of the storm, would be expedient, practicable, and effective. For instance, Plaintiff highlights the fact that less than 0.1 of an inch of ice was on the ground when Plaintiff fell. In Cash, the Delaware Superior Court held, and the Delaware Supreme Court affirmed, that there was no duty to remove ice during a storm where there was a light drizzle throughout the day and at the time that the plaintiff allegedly fell on ice. In this case there was freezing rain. Similar to the Cash decision taking steps prior to the end of the storm, including before the storm, to remove ice is inexpedient and impracticable.
Cash, 2010 WL 2336867, at *1-2.
II. An Agreement to Clear Snow and Ice from TD Bank's Property Prior to Storms Would Not Create a Duty to Prevent Ice and Snow Accumulation Prior to Storms
Plaintiff also argues that Defendants owe her a duty to take reasonable steps to prevent ice accumulation prior to a storm, because Defendants allegedly took responsibility to take such steps in an agreement with one another.
There are two reasons why Plaintiff's argument fails. First, in Cash, a plaintiff argued that the defendants assumed a duty by having a snow removal policy in place and removing snow and ice during the storm in which she fell. The court held that this was not enough to assume a duty. If taking steps to remove snow during a storm and having a policy are not enough to assume a duty, then a contract in which Defendants agree to take steps to prevent natural accumulation of ice and snow prior to a storm is not enough to assume a duty either.
Cash v. East Coast Prop. Mgmt., Inc., 7 A.3d 484, 2010 WL 4272925, at *4 (Del. Oct. 29, 2010) (TABLE).
Id.
Second, public policy requires that an agreement to take reasonable steps to prevent accumulation of snow and ice, prior to a storm, does not create a duty to take such steps. One of the reasons the continuing storm doctrine exists is to encourage landowners to attempt to clear their property of snow and ice without fear of incurring liability because of their efforts. Imposing a duty on Defendants because they allegedly agreed to take precautions prior to a storm would discourage future agreements to take such precautions.
Day, 2017 WL 816456, at *3-4.
CONCLUSION
Despite Plaintiff's well-argued position that this case is distinguishable from the body of continuing storm cases by virtue of the alleged pre-storm preparation plans in place, the doctrine applies. Defendants' motion is GRANTED.
Defendants' pending motion in limine is now moot.
SO ORDERED.
/s/ Robert B. Young
J. RBY/dsc
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