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Retailer Found Not Liable for Fall in Parking Lot Due to Snow and Ice Based Upon Ongoing Snowstorm

By on March 8, 2019 in Negligence with 1 Comment

Plaintiff Folusho Oyebola fell in the Walmart parking lot during a snowstorm and sued Wal-Mart Stores, Inc. and Tree Fellas, LLC, Walmart’s snow contractor, for her injuries. In Oyebola v. Wal-Mart Stores, Inc., 2019 N.J. Super. Unpub. LEXIS 432 (App. Div. Feb. 25, 2019), the issue was whether either defendant breached a duty of care owed to the plaintiff in light of the ongoing snowstorm.

On the day of the accident, at least 8 inches of snow fell. The winter storm developed early and continued into the afternoon. The Walmart store opened at 6 a.m. and the snow contractor, Tree Fellas, arrived between 6 and 7 a.m. The crew worked to remove snow and ice from the parking lot until sometime after 9 a.m.

Plaintiff arrived at the Walmart store at about 8 a.m. while it was snowing. She parked her car and went into the store, where she shopped for about 45 minutes. At around 8:45 a.m., she left the store and walked back to her car. It was still snowing at that time. She fell while she was walking between her car and the car parked next to her car. Plaintiff claimed that she slipped on built-up snow and ice between the cars. As result of her fall, she fractured her right foot.

The defendants contended that there was a lack of evidence from which a jury could determine that they had breached a duty of care because the plaintiff fell while it was still snowing. The defendants claimed that they did not have a duty to remove all of the snow until a reasonable time after the snow stopped falling and moved for summary judgment, requesting a dismissal. The trial court agreed with the argument and found that “no rational injury could find the defendants were negligent because plaintiff fell during an ongoing snowstorm when Tree Fellas was already at the location engaged in snow removal efforts.”

The plaintiff appealed the dismissal. She argued that the trial court ignored the opinions of her proposed experts and should have allowed her claims to go to the jury.

The defendants did not dispute that they owed the plaintiff a duty to exercise reasonable care because she was a business invitee of Walmart. However, they argued that the plaintiff’s negligence claim failed as a matter of law because she could not show that they breached that duty. The Appellate Division agreed.

The Appellate Division noted that business owners, such as Walmart, did owe their invitees a duty of reasonable care “to provide a safe environment for doing that which is within the scope of the invitation.” Further, the Court noted that this duty required a business owner “to discover and eliminate dangerous conditions, as well as maintain the premises in a safe condition.” That duty extended to the premise’s parking lot.

The Court further noted that it has long been recognized that “commercial landowners have a reasonable time in which to act to clear snow and ice from walkways.” The Appellate Division noted the undisputed facts that the snowstorm was ongoing when plaintiff slipped and fell. In fact, the plaintiff had acknowledged that it was snowing when she arrived and was still snowing when she left the store. It was also undisputed that the crew from Tree Fellas was on site and plaintiff fell while they were engaged in snow removal activities. Based upon all of these facts, the Appellate Division found that the “defendants were not obligated to remove snow and ice between parked cars until the cars either moved or the snow stopped falling and defendants had a reasonable time to remove the snow.”

The plaintiff also argued that the trial court ignored its liability expert report. Plaintiff’s liability expert opined that Walmart did not establish a procedure with Tree Fellas to clear the parking lot in a sequential manner “so as to provide customers with safe conditions for entering and leaving the store.” However, the Appellate Division rejected that idea because even if the opinions of the plaintiff’s liability expert were to be considered, it did not change that it was snowing at all times when plaintiff was present at the Walmart. Thus, even if those procedures had been followed, the snow continued to fall during this time. The defendants’ duty to remove the snow did not arise until some reasonable passage of time allowing them to take action. Therefore, because the undisputed material fact remained that it was snowing and defendants are afforded a reasonable period of time to remove the snow, the Appellate Division affirmed the trial court’s summary judgment decision in favor of the defendants.


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About the Author

About the Author:

Ms. Ramos is an Executive Committee Member and Co-Chair of the Litigation Department at Capehart Scatchard, P.A. located in Mount Laurel, New Jersey. She is an experienced litigator with over 30 years experience handling diverse matters. Practice areas include tort defense, business litigation, estate litigation, tort claims and civil rights defense, construction litigation, insurance coverage, employment litigation, shareholder disputes, and general litigation.

For the years 2020-2023, Ms. Ramos was selected for inclusion in The Best Lawyers in America© in the practice area of Litigation - Insurance. The attorneys on this list are selected based upon the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. A complete description of The Best Lawyers in America© methodology can be viewed via their website at: https://www.bestlawyers.com/methodology.

In 2021, Capehart Scatchard and Ms. Ramos received the “Best Law Firm” ranking in the area of Litigation – Insurance (Metro, Tier 3) published by U.S. News & World Report and Best Lawyers®. Law firms included on the list are recognized for professional excellence with consistently impressive ratings from clients and peers. To be eligible for a ranking, a firm must have at least one attorney who has been included in the current edition of Best Lawyers in America, which recognizes the top five percent of practicing lawyers in the United States. Betsy Ramos (Litigation – Insurance) was recognized for this prestigious award in the 2021 edition. For a description of the “Best Law Firm” selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

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  1. Kris Johnson says:

    good stuff!

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