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Let It Snow - The No-Duty Winter Rule in Ohio

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Retail, Hospitality, and Entertainment Facilities Liability-Winter 2019/2020 Newsletter
December 2019

It is that time of year. Many areas of Ohio have already experienced their first snowfall of the season, and if anything is certain, there will be plenty more this winter. It is of particular importance to retail/hospitality premises owners whom have large numbers of individuals visiting their businesses to understand their duties and responsibilities when it comes to dealing with snow and ice. With that in mind, it is an accepted principle that the owner/occupier of a premises owes an invitee a duty to exercise ordinary care to maintain its premises in a reasonably safe condition, such that invitees will not be unreasonably or unnecessarily exposed to danger.[1] However, Ohio courts recognize two different exceptions to this general standard; the “open and obvious” doctrine and the “no-duty winter rule.”

Under the familiar open and obvious doctrine, owners and occupiers of land ordinarily owe no duty to remove natural accumulations of ice and snow, or to warn an invitee of the dangers associated with natural accumulations of ice and snow.[2] However, the open and obvious doctrine is limited in that it applies only to those who could observe and appreciate the danger. [3] The no-duty winter rule does not have this same limitation and has therefore been recognized as even more inclusive than the open and obvious doctrine, because it is assumed that everyone will appreciate and protect themselves against risks associated with natural accumulations of ice and snow. As a result, unlike the open and obvious doctrine, there is generally no inquiry into whether a premises owner had superior knowledge of the hazard, rather an invitee is charged with an appreciation of those risks as a matter of law.[4]

While the no-duty winter rule sounds like a failsafe argument for retailers against those who are injured in snowy weather conditions, there are two major exceptions to the rule.

  1. If an occupier had notice, actual or implied, that a natural accumulation of snow and ice on their premises has created a condition substantially more dangerous than a business invitee should have anticipated by reason of the knowledge of conditions prevailing generally in the area, negligence may be proven; and
  2. An owner is actively negligent in permitting or creating an unnatural accumulation of ice and snow.

The first exception was recognized in a case considered by the Supreme Court of Ohio, where an accumulation of snow covered a large hole in the businesses parking lot.[5] See Mikula v. Tailors, 24 Ohio St.2d 48, 57, 263 N.E.2d 316 (1970).  The Court found that such a condition is substantially more dangerous than one normally associated with snow. Therefore, this exception has been applied when snowfall covers another danger that should not be anticipated by an invitee. However, Ohio courts have held that the exception does not include hidden ice underneath a layer of snow. One court explained that winter in Ohio poses well recognized dangers, and it is well within the common experience of most individuals that walking on a wet parking lot on a winters evening can be dangerous.[6] As a practical matter, this exception returns premises owners to the same position they would be in under the open and obvious doctrine. If there is a danger of which the premises owner knows of or should know of which is covered by snow or ice, then the no-duty winter rule will not offer protection. In fact, you could argue that this exception puts premises owners at a disadvantage because open and obvious hazards that invitees may regularly observe and avoid may be covered by snow or ice. Extra due-diligence is required during the winter season to ascertain the existence of and protect against hazards that may not usually pose a threat but may become more dangerous when covered by ice or snow. Therefore, being proactive and clearing or restricting areas covered by ice and snow is the best option to avoid being subject to this exception.

That brings us to the second exception. Often individuals argue that an unnatural accumulation of ice or snow occurs when a premises owner has done some snow and ice removal and either compacted a layer of ice or caused ice and snow to melt and reform. However, Ohio courts have not accepted these arguments. In both situations courts have held that a layer of ice that is left after an area has been ploughed, or reformation of melted ice and snow are both natural accumulations that do not fall under the exception.[7] Essentially, a natural accumulation of ice or snow is a condition that results from low temperatures and natural freeze and thaw cycles.[8] An unnatural accumulation is caused by human intervention that causes the snow or ice to form improperly. However, courts have not made clear exactly what an unnatural accumulation of ice and snow is. The only clear enunciation of an unnatural accumulation of ice considered by Ohio courts are drainage systems, gutters, or other leaking structures that cause a pooling of water in an unlikely place.[9] However, even in those cases, Ohio courts have required that the premises owner know of the cause of the unnatural accumulation before a duty can be imposed on them. Therefore, the unnatural accumulation exception is hard for an individual to meet.

In conclusion, retail premises and hospitality business owners are fairly well protected in Ohio from claims arising out of accumulations of ice and snow. Generally, there is no duty to warn or protect against these natural accumulations. Moreover, although there are two exceptions to the no-duty winter rule, due diligence and a reasonable lack of knowledge can still save a premises owner from liability even when the exceptions apply. As a result, best practices include making an attempt to clear or restrict areas covered by ice and snow and performing regular checks during the winter months for unnatural accumulations caused by drainage or leaking. Overall, the no-duty winter rule in Ohio remains favorable to premises owners.

 

[1] Paschal v. Rite Aid Pharmacy, Inc., 18 Ohio St. 3d 203, 203, 480 N.E.2d 474, 475 (1985).

[2] Brinkman v. Ross, 68 Ohio St. 3d 82, 83, 623 N.E.2d 1175, 1176 (1993).

[3] Bakies v. RSM Maintenance, Inc., 3d Dist. Allen No. 1-19-03, 2019-Ohio-3323, ¶ 23.

[4] Miller v. Tractor Supply Co., 6th Dist. Huron No. H-11-001, 2011-Ohio-5906, ¶ 9

[5] Mikula v. Tailors, 24 Ohio St.2d 48, 57, 263 N.E.2d 316 (1970).

[6] Karcher v. Zeisler-Morgan Properties, 8th Dist. Cuyahoga No. 70199, 1996 Ohio App. LEXIS 5824, at *6 (Dec. 26, 1996).

[7] Schirmann v. Arena Mgt. Holdings, LLC, 1st Dist. Hamilton No. C-170574, 2018-Ohio-3349, ¶ 27.

[8] Moore v. Kroger Co., 10th Dist. Franklin No. 10AP-431, 2010-Ohio-5721, ¶ 10.

[9] See Sleeper v. Casto Mgt. Servs., 10th Dist. Franklin No. 12AP-566, 2013-Ohio-3336, ¶ 39; see also Tyrrell v. Invest. Assocs., Inc., 16 Ohio App.3d 47, 48, 474 N.E.2d 621 (8th Dist.1984); Bryant v. Indus. Power Sys., 2018-Ohio-1741, 111 N.E.3d 827, ¶ 16 (6th Dist.).