Ohio Snow and Ice; to Remove or not to Remove, that is the Question

(assuming you can get out of your drive)

As we dig out from under our latest snowfalls, it seems appropriate to summarize the relatively recent Franklin County Court of Appeals decision in Cain v. McKee Door Sales, 2013-Ohio-4217, and other cases dealing with premises liability for injuries due to accumulation of ice and snow.

As aptly pointed out by the Court in Cain, “the Supreme Court of Ohio has made liability [in snow and ice cases] very hard to establish.” In Brinkman v. Ross, 68 Ohio St.3d 82 (1993; the leading case on this issue), the Ohio Supreme Court held: the “homeowner has no common-law duty to remove or make less hazardous natural accumulation of ice and snow on private sidewalks or walkways on homeowner's premises, or to warn those who enter upon premises of inherent dangers presented by natural accumulations of ice and snow, regardless of whether the entrant is a social guest or business invitee.”

In the Brinkman case, the Brinkmans were invited to the Ross home during the winter. The Rosses knew that the sidewalk into the house was covered by a sheet of ice, which in turn was covered by snow, but never warned the Brinkmans. While walking on the sidewalk between the driveway and the Ross home, Carol Brinkman slipped on the snow-covered ice and fell, sustaining serious injuries. Ms. Brinkman sued and lost at the trial court stage, but appealed that decision. The court of appeals in Brinkman agreed with the plaintiff who admitted the snow/ice had accumulated naturally, but claimed the Rosses had a duty to disclose the dangerous situation that they knew about. 

The Ohio Supreme Court in Brinkman reversed the decision of the appellate court on the basis of law, and common sense, as if to say: “Who does not know that snow and ice are slippery?”  Actually, the Ohio Supreme Court put it more eloquently, by stating: “As a matter of law, the guest is charged with sufficient knowledge of the hazards to be required to protect herself against falls."

The facts of the case in Cain are a little more involved. Betty Cain fell on snow and ice in the parking lot at the office of her eye doctor. She was seriously injured, and as a result, she sued various entities affiliated with the office building. In her affidavit, Ms. Cain stated that she approached her car from the rear, and as she was reaching for her door, she slipped and fell on the snow and ice that had accumulated in the drainage swale of the parking lot.  While the basic facts in Cain are somewhat similar to the basic facts in Brinkman, counsel for Ms. Cain argued that the construction of the parking lot was improper or improperly designed, resulting in a trough (or swale) in the parking lot which accumulated snow, ice and water in what constituted an unnatural accumulation. Experts testified to this “unnatural phenomenon”. The trial court relied on Brinkman, and granted summary judgment in favor of the defendants. Ms. Cain then appealed.

In reversing the trial court’s summary judgment, the Franklin County Court of Appeals held that there was a genuine issue of material fact as to whether or not Ms. Cain fell on an unnatural accumulation of ice which resulted from the design of the parking lot, and accordingly remanded (sent back) the case to the trial court for further appropriate proceedings. In other words, the court of appeals simply recognized that there is an exception to the rule (for “unnatural accumulations”) and awarded the defendants their day in court to try and prove it.

Would these cases have come out any different in a landlord-tenant situation? Based on Ohio case law, probably not, with two exceptions.  One, if the landlord has promised in its lease to clear snow and ice from the premises, then yes, the landlord can be sued if he fails to live up to his contractual obligations. Two, if a landlord decides to remove ice and snow, without an obligation in the lease to do so, he then has a duty to use ordinary care not to create a hazard or to aggravate an existing hazard. Such a hazard would constitute an unnatural accumulation.

Actually, whether or not in a landlord tenant situation, anyone that undertakes to remove snow/ice can be liable for a slip and fall if they have done so negligently, or in a way that makes the area more hazardous than it had been without the efforts at snow removal.

What is the moral of this story? Never shovel or “de-ice”? There are some who subscribe to that theory. However, before you decide to take such an approach, you should note:1) A lease or other contract may create the duty/obligation to remove ice and snow; 2) your applicable municipality may have snow removal ordinances. If your city or township has such an ordinance that requires you to keep walkways free of snow and ice, then you have a responsibility to maintain the same. In fact, some Ohio cities with snow removal ordinances levy fines for not removing snow in a timely manner; and 3) if you have a good insurance policy, why not listen to your mother and be nice to your neighbors.