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The Storm in Progress Exception to a Commercial Landowner’s Responsibility to Keep Its Premises in a Safe Condition

By on September 13, 2018 in Other with 0 Comments

By:  Betsy G. Ramos, Esq and Kristen Mowery

A landowner holds the general duty to keep its premises reasonably clear of hazards “for the benefit of business invitees . . . includ[ing] keeping the premises reasonably safe from natural accumulations of ice and snow.” Laine v. Speedway, LLC, 177 A.3d 1227, 1229 (Del. 2018). However, many jurisdictions have recognized a defense or exception to this general duty of care known as the doctrine of storm in progress, ongoing storm, or continuing storm, which permits the landowner to await the end of the storm and a reasonable time thereafter to remove ice and snow from its premises. Id. (quoting Young v. Saroukos, 185 A.2d 274, 282 (Del. Super. Ct. 1962)).

Ordinary Standard of Reasonable Care

Some courts follow the general rule that a “property owner has a duty to maintain its property in a reasonably safe condition for business invitees,” including weather-related conditions. Dehoyos v. Golden Manor Apts., 101 N.E.3d 874, 877 (Ind. Ct. App. 2018). Thus, when snow and ice land on a business owner’s premises, it almost always becomes a fact question as to whether the owner exercised reasonable care in the handling of the unsafe condition.

Particularly, it is often a question for the jury to decide whether, and if so, when, the landowner became aware of the condition. For example, in 2011, the Indiana Court of Appeals held that summary judgment was inappropriate because a fact question existed about whether the owners were aware of the ice hazard and whether they took reasonable steps to fix it. Bell v. Grandville Coop., Inc., 950 N.E.2d 747, 753–54 (Ind. Ct. App. 2011).

Another state that has adopted the general duty of care standard is Massachusetts. Interestingly, Massachusetts once followed the “natural accumulation” rule, but since 2010, it has followed a standard similar to that in Indiana. Woods v. Naumkeag Steam Cotton Co., 134 Mass. 357, 360–61 (Mass. 1883). Massachusetts now applies to property owners the traditional duty of reasonable care to the accumulation of snow and ice, but it does not apply the exception when storms are ongoing at the time of injury. Papadopoulos v. Target Corp., 457 Mass. 368, 383–84 (Mass. 2010). See also Santolucito v. Demoulas Super Mkts., Inc., No. MICV2008-00610-F, 2012 Mass. Super. Lexis 274, at *1, 7–9 (Mass. Super. Ct. Sept. 28, 2012) (applying standard of reasonable care).

Maine is one of, if not the only, states to reject the storm in progress rule explicitly. In a 2001 Maine Supreme Judicial Court decision, the court stated that the storm in progress doctrine “appears inconsistent with the duty of reasonable care owed by a business owner reasonably anticipating a significant number of invitees during a Maine snow storm.” Budzko v. One City Center Assocs. Ltd. P’ship, 767 A.2d 310, 314, n.2 (Me. 2001).

Natural Accumulation Rule

Some states (including Ohio and Illinois), however, still follow the natural accumulation rule, which has been described as “an older, harsher rule . . . that an owner cannot be held liable for accidents stemming solely from the natural accumulation of ice and snow.” Turmel v. Univ. of Vt., No. S0980-01, 2004 Vt. Super. Lexis 65, at *5 (Vt. Super. Ct. Apr. 20, 2004). As for Illinois law, see Krywin v. Chicago Trans. Auth., 238 Ill. 2d 215, 227–28 (Ill. 2010). The rule stands for the premise that there must be some sort of “artificial accumulation,” meaning that something must have been added to the causal chain, such as “a defective gutter creating an artificial ice patch.” Id.

Ohio continues to follow the natural accumulation rule and has described it as “an owner of land ordinarily owes no duty to business invitees to remove natural accumulations of ice and snow from the walkways on the premises or to warn the invitee of the dangers associated therewith.” Dailey v. Mayo Family Ltd. P’ship., 115 Ohio App. 3d 112, 117 (Ohio App. Ct. 1996). Thus, where snowfalls or areas of ice are entirely naturally created, a business owner owes no duty to its business invitees to remove the hazard or warn of the hazard’s existence.

Exception to Ordinary Care: Storm in Progress Rule

Most states recognize the exception to the general standard of ordinary care owed to business invitees and allow a reasonable amount of time after a storm for a landowner to remove the snow and ice. However, not all states do so as explicitly as others.

For example, the New Jersey Superior Court expressed its continuing recognition of the storm in progress doctrine in 2015, stating that “to impose a duty on the landlord to clear the walkway in the midst of a snow storm would violate ‘an abiding sense of basic fairness under all of the circumstances in light of the considerations of public policy.’” Holmes v. INCAA-Carroll St. Houses Corp., No. A-1958-13, 2015 N.J. Super. Unpub. Lexis 1280, at *3–4 (N.J. Super. Ct. App. Div. June 2, 2015) (citation omitted). See also Quiles v. Hector, No. A-0023-16, 2018 N.J. Super. Unpub. Lexis 124 (N.J. Super. Ct. App. Div. Jan. 19, 2018); Hill v. St. Barnabas Med. Ctr., No. A-0148-17, 2018 N.J. Super. Unpub. Lexis 1699 (N.J. Super. Ct. App. Div. July 16, 2018).

The seminal case in Iowa is Reuter v. Iowa Trust & Savings Bank, 57 N.W.2d 225 (Iowa 1953). In Rochford v. G.K. Dev., Inc., the Iowa Court of Appeals expressed that it continued to apply the doctrine. 845 N.W.2d 715 (Iowa Ct. App. 2014). But see Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699, 712 (Iowa 2016) (explaining that it will not decide whether Iowa’s adoption of the Restatement Third of Torts §7 requires an abandonment of the storm in progress doctrine because the parties did not raise the issue, nor did the lower courts address it). It also held that “inclement winter weather,” including freezing rain, is covered by the doctrine. 845 N.W.2d at 718. Hence, its application is not limited to only snow or ice. Id.

More recently, in 2018, the Delaware Supreme Court illustrated that it still recognized the doctrine. In Laine v. Speedway, LLC, the court stated: “[I]t is reasonable for a business owner to wait until a storm has ended and a reasonable time thereafter to remove natural accumulations of ice and snow in the absence of unusual circumstances.” 177 A.3d 1227, 1229–31 (Del. 2018). Further, Delaware holds that a business landowner’s duty to warn of any icy conditions is also suspended while the storm is in progress. Id. at 1233.

Other states that have expressly adopted a form of the doctrine include New York (Gervasi v. Blagojevic, 158 A.D.3d 613 (N.Y. App. Ct. 2018); see also Brandimarte v. Liat Holding Corp., 158 A.D.3d 664 (N.Y. App. Ct. 2018)); Connecticut (Kraus v. Newton, 558 A.2d 240 (Conn. 1989); see also Thebeault v. Griswold Hills of Newington L.P., No. HHDCV156063238S, 2018 Conn. Super. Lexis 164 (Conn. Super. Ct. Jan. 25, 2018)); and Pennsylvania (the hills and ridges doctrine) (Collins v. Philadelphia Suburban Development Corp., 179 A.3d 69, 73–74 (Pa. Super. Ct. 2018) (quoting Williams v. Shultz, 240 A.2d 812, 813–14 (Pa. 1968). The Collins court stated that “the only duty upon the property owner or tenant is to act within a reasonable time after notice to remove [the snow and ice] when it is in a dangerous condition.” Id. at 74 (quoting Biernacki v. Presque Isle Condominiums Unit Owners Ass’n, Inc., 828 A.2d 1114, 1117 (Pa. Super. Ct. 2003)).

Also included in the states that have expressly adopted a form of the doctrine are West Virginia (see Adams v. United States, No. 5:11-0660, 2013 U.S. Dist. Lexis 125968, at *22–27 (S.D. W. Va. July 24, 2013)); Minnesota (Mattson v. St. Luke’s Hospital, 252 Minn. 230, 233–35 (Minn. 1958)); Virginia (Walker v. Memorial Hospital, 187 Va. 5, 22–24 (Va. 1948)); Kansas (Agnew v. Dillons, Inc., 16 Kan. App. 2d 298, 303–04 (Kan. App. Ct. 1991)); Rhode Island (Munsill v. United States, 14 F. Supp. 2d 214, 220–21 (D.R.I. 1998); see also Benaski v. Weinberg, 899 A.2d 499, 503 (R.I. 2006) (recognition of the ongoing storm doctrine in Rhode Island), and Sullo v. Greenberg, 68 A.3d 404, 407 (R.I. 2013)); and Vermont (Turmel, 2004 Vt. Super. Lexis 65, at *4).


A number of states appear to recognize some sort of an exception to the general duty of care owed to business invitees when an injury occurs on snow or ice while a storm is ongoing. The application of this doctrine can be a very useful tool in the defense of premises liability cases involving an injury occurring due to snow or ice.

This article is co-written by Kristen Mowery, who is a law student attending Drexel University Thomas R. Kline School of Law. Her experience includes clerkships with Capehart Scatchard PA (2018) and the law firm of Klineburger & Nussey (2017). This article was featured in “The Voice,” DRI The Voice of the Defense Bar. To view it, please click here


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.

“Best Law Firms” is published by Best Lawyers in partnership with U.S. News & World Report. For a description of the selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

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