When the winter weather outside gets frightful, it’s debatable whether the resulting wave of slip-and-fall cases is delightful.
Most plaintiffs’ attorneys would agree that slip and falls are not very easy cases to win — even when the ice and snow are daunting or, more precisely, because the ice and snow are daunting.
Generally a tenant’s or a property owner’s duty to keep the premises safe and dry is, if not matched, at least countered by the plaintiff’s responsibility to avoid open and obvious hazards.
And, as judges and juries are well aware, there’s nothing more open and obvious than a Minnesota winter.
The reasonable snow-shoveler
A property owner has a duty to keep his or her premises safe, but the practicalities of the weather are built in to that standard. The question in a snow- or ice-related case is whether the maintenance was reasonable and done within a reasonable time. (Reasonable time means that the property owner can wait until at least the storm ends to shovel and a reasonable amount of time thereafter.)
A residential property owner’s duty to shovel snow cannot be delegated to a tenant. However, a commercial property owner may delegate the duty to clean up snow and ice to a business tenant as part of a lease.
Usually it’s easier to convince a jury that a business owner was negligent than a homeowner, personal injury lawyers told Minnesota Lawyer.
The plaintiff has to be realistic about the standard to which a jury will hold a homeowner as well as the defendant’s ability to keep up with the weather, observed Minneapolis lawyer Peter Riley.
Even with a commercial defendant such as a retail store, it can be most helpful to the plaintiff to have some facts besides snow and ice, such as bad lighting or a hazard artificially created by the defendant.
The potential damages also must justify the investment in the case. Many attorneys find that in cases with less severe injuries the recovery will not be worth the risk and costs of the file.
Minneapolis attorney Paul Godlewski told Minnesota Lawyer that there are two requisite facts before his firm will take a slip-and-fall case:
• there must be a commercial defendant; and
• the plaintiff’s injuries must include a fracture.
Godlewski settled one such slip-and-fall case earlier this year for $95,000. One factor that made the case succeed was that the plaintiff fell on ice in a parking lot on a December evening.
Although there were lights in the parking lot, the spot where the plaintiff fell was shadowy, Godlewski said. The other important factor in the case was a police report that said that the plaintiff was found lying on ice. The fact that ice was allowed to build up in the parking lot demonstrated that the defendant should have known about it and had time to fix it, he said.
Despite having favorable facts in the case, Godlewski said that he believed his client had at least some exposure because plaintiffs almost always do in slip-and-fall cases. If the case had gone to trial, Godlewski assumed the jury would have found his client at least partially at fault.
Riley was able to settle a slip and fall where the accident coincidentally occurred across the street from the courthouse in a bar parking lot. In that case, the owner of the property testified that his policy was to clean the pavement down to the asphalt, according to Riley. However, the plaintiff and an independent witness said the pavement was not clean at the time of the accident, Riley said, adding that the defendant could not refute their testimony. The theory of the case was that the defendant essentially had breached a duty that he himself had established, which in essence “trumped” the plaintiff’s duty to maintain a lookout, said Riley.
Unlike businesses and homeowners, municipalities have the special benefit of what is known as the “mere slipperiness” rule. Under this common-law doctrine, a municipality may not be held liable if a sidewalk is just slippery and not built up with bumpy ice. In order for the rule to apply, the slipperiness must be caused by weather rather than by artificial conditions, such as a leaky drainpipe.
In some ways it is an immunity rule and it also goes to the issue of notice, said Minneapolis attorney Louise A. Behrendt, who successfully applied the rule at the Court of Appeals in 2000 in Otis v. Anoka-Hennepin School District No. 11. In that case, the court said that an accumulation of shoveled snow that blew on to the sidewalk was not an artificial condition that prevented the application of the rule.
D. Scott Ballou of Minneapolis, who also tried the Otis case, explained that the rule exists because it is impractical to hold municipalities liable for miles and miles of “merely slippery” pavement. Other putative defendants, such as retailers, are responsible for a limited reach of sidewalk and thus their duty is realistic, he added.
But defending retailers can be difficult where the ice freezes and thaws throughout the day, observed Duluth attorney Nicholas Ostapenko, who joked that slip-and-falls are the local specialty. Those retailers need to keep on top of the changing sidewalk condition, which can be a difficult task, he said.
On the other hand, continued Ostapenko, area judges are practical about ice and snow. “You’ve got an uphill battle as a plaintiff in Duluth,” he said. That’s especially true if the defendant can find a way to have the case tried in the winter, he added.
Arden Hills attorney Richard Thomas, who generally represents both plaintiffs and defendants, said that he does not take plaintiffs’ slip-and-fall cases because jurors tend to be so tough on them. “I’ve defended five slip-and-falls at trial and lost none. I expect to never lose one,” said Thomas.
Thomas sees slip-and-falls as a win-win for the defendant in most cases. “I get to ask the plaintiff my favorite deposition question — did you see the hazard? If the plaintiff says yes or no, it’s a win,” said Thomas. If the plaintiff saw the hazard, he or she shouldn’t have walked there; if he didn’t see it, he wasn’t looking and the plaintiff himself was negligent, explained Thomas.
Many times cases fail because plaintiffs are unable to establish the length of time the slippery condition existed, Thomas continued. The defendant has no duty to do anything until the hazardous weather has cleared up and so the climatological data may be important evidence, he noted.
Once the snow or rain has subsided, the defendant still must have actual or constructive notice of the condition in order for a duty to arise. The issue of notice is tied into the issue of the duration of the weather because generally constructive notice requires proof that the danger had existed for an appreciable time.
For example, in a 2002 case, Banovetz v. King, the Court of Appeals in an unpublished opinion affirmed summary judgment for the owner of an unoccupied piece of property where the plaintiff could present only “mere speculation” as to how long the dangerous condition existed.
However, in other situations a question of when the defendant’s duty arose may get the plaintiff past summary judgment.
In a 2000 decision, Frykman v. University of Minnesota-Duluth, the Court of Appeals said, “In cases where the parameters of the weather event are less than clear, it is not improper to present this question to a jury.”