Debra Gries v. Ames Ecumenical Housing, Inc. d/b/a Stonehaven Apts.

IN THE SUPREME COURT OF IOWA

No. 19–1306

Filed June 5, 2020

DEBRA GRIES,

Appellant,

vs.

AMES ECUMENICAL HOUSING, INC. d/b/a STONEHAVEN APTS.,

Appellee.

Appeal from the Iowa District Court for Story County, James A.

McGlynn, Judge.

Plaintiff appeals from the adverse grant of summary judgment in her

personal injury suit. REVERSED AND REMANDED.

Frederick W. James of The James Law Firm, P.C., Des Moines, and

Shawn Smith of Shawn Smith, Attorney at Law, PLLC, Ames, for appellant.

Michael C. Richards and Daniela Erickson of Davis, Brown, Koehn,

Shors & Robert, P. C., for appellee.

Thomas M. Boes of Bradshaw, Fowler, Proctor & Fairgrave, P.C., Des

Moines, for amici curiae Iowa Defense Counsel Association, Iowa

Insurance Institute, and Iowa Association of Business and Industry.

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McDONALD, Justice.

Debra Gries slipped and fell on an icy sidewalk outside her

apartment building. She filed a negligence suit against her landlord, Ames

Ecumenical Housing, Inc. d/b/a Stonehaven Apartments (Stonehaven).

The district court granted Stonehaven’s motion for summary judgment,

holding, pursuant to the continuing storm doctrine, Stonehaven had no

duty at the time Gries fell to remove or ameliorate the natural

accumulation of snow or ice on the sidewalk. On appeal, Gries argues this

court should abandon the continuing storm doctrine in light of this court’s

adoption of the duty analyses set forth in the Restatement (Third) of Torts:

Liability for Physical and Emotional Harm. (Am. Law Inst. 2010)

[hereinafter Restatement (Third)]. She argues, in the alternative, the

district court erred in holding Stonehaven was entitled to judgment as a

matter of law pursuant to the continuing storm doctrine.

I.

Our review is for the correction of legal error. See Baker v. City of

Iowa City, 867 N.W.2d 44, 51 (Iowa 2015). Summary judgment is

appropriate “if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is

no genuine issue as to any material fact and that the moving party is

entitled to judgment as a matter of law.” Iowa R. Civ. P. 1.981(3). The

party seeking summary judgment has the burden of establishing that the

facts are undisputed and that the “party is entitled to a judgment as a

matter of law.” Estate of Harris v. Papa John’s Pizza, 679 N.W.2d 673, 677

(Iowa 2004) (quoting Iowa R. Civ. P. 1.981(3)). “When a motion for

summary judgment is made and [properly] supported . . . [the opposing]

party may not rest upon the mere allegations or denials in the

pleadings . . . .” Iowa R. Civ. P. 1.981(5); Bitner v. Ottumwa Cmty. Sch.

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Dist., 549 N.W.2d 295, 299 (Iowa 1996). Instead, the resisting party must

set forth specific material facts, supported by competent evidence,

establishing the existence of a genuine issue for trial. See Iowa R. Civ. P.

1.981(5); Bitner, 549 N.W.2d at 299. “A fact is material if it will affect the

outcome of the suit, given the applicable law.” Parish v. Jumpking, Inc.,

719 N.W.2d 540, 543 (Iowa 2006). An issue of fact is “genuine” if the

evidence would allow “a reasonable jury [to] return a verdict for the

nonmoving party.” Fees v. Mut. Fire & Auto. Ins., 490 N.W.2d 55, 57 (Iowa

1992). It is well established that speculation is not sufficient to generate

a genuine issue of fact. See Nelson v. Lindaman, 867 N.W.2d 1, 7 (Iowa

2015).

II.

The issue of whether we should abandon the continuing storm

doctrine in light of our recent adoption of the duty analyses in the

Restatement (Third) was presented to us once before in Alcala v. Marriott

International, Inc., 880 N.W.2d 699, 711 (Iowa 2016). We declined to reach

the issue in that case because it was raised for the first time on further

review. See id. at 711–12. The issue is now squarely presented in this

appeal, and we conclude the continuing storm doctrine is consistent with

the Restatement (Third) and remains good law.

The continuing storm doctrine is of long standing in Iowa. This

court first adopted the rule in 1953 in Reuter v. Iowa Trust & Savings Bank,

244 Iowa 939, 57 N.W.2d 225 (1953). In Reuter, we said,

The authorities are in substantial accord in support of the rule

that a business establishment, landlord, carrier, or other

inviter, in the absence of unusual circumstances, is permitted

to await the end of the storm and a reasonable time thereafter

to remove ice and snow from an outdoor entrance walk,

platform, or steps. The general controlling principle is that

changing conditions due to the pending storm render it

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inexpedient and impracticable to take earlier effective action,

and that ordinary care does not require it.

Id. at 943, 57 N.W.2d at 225 (quoting Walker v. Mem’l Hosp., 45 S.E.2d

898, 902 (Va. 1948)).

Long after our adoption of the continuing storm doctrine, “we

changed the law concerning premises liability by abandoning the common

law distinctions between invitees and licensees.” Ludman v. Davenport

Assumption High Sch., 895 N.W.2d 902, 909 (Iowa 2017). We concluded

the “common law rules governing premises liability . . . to be replete with

special rules and arbitrary distinctions.” Id. In replacement of the old

common law rules and distinctions, in Koenig v. Koenig, we adopted for

land possessors a duty of reasonable care. 766 N.W.2d 635, 645 (Iowa

2009).

After Koenig, we adopted the duty analyses set forth in sections 7

and 51 of the Restatement (Third). First, in Thompson v. Kaczinski, we

adopted the duty analysis set forth in section 7 of the Restatement (Third).

See 774 N.W.2d 829, 835 (Iowa 2009) (“We find the drafters’ clarification

of the duty analysis in the Restatement (Third) compelling, and we now,

therefore, adopt it.”). The Restatement (Third) provides, “An actor

ordinarily has a duty to exercise reasonable care when the actor’s conduct

creates a risk of physical harm.” Restatement (Third) § 7(a), at 77.

Subsequently, in Ludman, we explained the Restatement (Third)

“adopted the position we took on premises liability” in Koenig. Ludman,

895 N.W.2d at 910. Because the Restatement (Third) regarding premises

liability was consistent with Koenig, we adopted “the duty analysis for land

possessors contained in section 51 of the Restatement (Third).” Id.

Section 51 of the Restatement (Third) is a “specific application” of the duty

to exercise reasonable care “based on the circumstance of real-property

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ownership.” Restatement (Third) § 51 cmt. b, at 244 (Am. Law Inst. 2012).

Section 51 provides, in relevant part, “a land possessor owes a duty of

reasonable care to entrants on the land with regard to . . . natural

conditions on the land that pose risks to entrants on the land.”

Restatement (Third) § 51(c), at 242.

Gries makes no real doctrinal argument why the adoption of sections

7 and 51 of the Restatement (Third) counsels in favor of abandoning the

continuing storm doctrine, and we see none. In adopting the Restatement

(Third) duty analyses, we removed foreseeability from the “duty calculus.”

McCormick v. Nikkel & Assocs., Inc., 819 N.W.2d 368, 371 (Iowa 2012).

“But we did not erase the remaining law of duty; rather, we reaffirmed it.”

Id. Included in the body of reaffirmed law were exclusions from the

ordinary duty of reasonable care. See Huck v. Wyeth, Inc., 850 N.W.2d

353, 375 (Iowa 2014) (“We have made clear that our adoption of section 7

of the Restatement (Third) of Torts in Thompson did not supersede our

precedent limiting liability . . . .”); McCormick, 819 N.W.2d at 371

(explaining the adoption of Restatement (Third) section 7 did not change

our law modifying or eliminating the duty of reasonable care).

After the adoption of the duty analyses set forth in the Restatement

(Third), this court and the court of appeals continued to find exceptions to

the ordinary duty of reasonable care. In Van Fossen v. MidAmerican

Energy Co., we made clear that our previous law of duty was alive and well.

777 N.W.2d 689, 696–97 (Iowa 2009). We held employers of independent

contractors do not owe a general duty of care under Restatement (Third)

section 7. Id. In Feld v. Borkowski, we recognized contact sports are one

of the “activities or circumstances [that] have been excepted from the

reasonable-care duty.” 790 N.W.2d 72, 76 (Iowa 2010). In McCormick, we

reaffirmed the common law control principle on public policy grounds:

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Application of the control principle makes sense here

from a public policy perspective. Consider the implications of

a contrary rule that a party has created a nondelegable risk of

harm if the electricity is on when it leaves the premises. No

matter that the accident occurred a week later, or that the

facility could not operate without electricity, or that the owner

was fully aware of the relevant risks, or that the equipment

had been locked up. To avoid potential liability, various

parties (owners, landlords, repairpersons, etc.) would need to

turn off utilities that involve any risk of hazard (e.g., gas,

electricity) whenever they leave a property. These

unnecessary shutoffs would result in burdens and

inconveniences to businesses and the general public.

819 N.W.2d at 373. In Huck, we reaffirmed our precedents limiting liability

and held brand drug manufacturers owed “no duty to consumers of

generic drugs.” 850 N.W.2d at 380. In Rochford v. G.K. Development, Inc.,

845 N.W.2d 715, 718 (Iowa Ct. App. 2014), and Wailes v. Hy–Vee, Inc., 861

N.W.2d 262, 265–68 (Iowa Ct. App. 2014), the court of appeals applied the

continuing storm doctrine. And, most recently, we upheld the ongoing

vitality of the public-duty doctrine. See Estate of McFarlin v. State, 881

N.W.2d 51, 64 (Iowa 2016) (affirming “summary judgment based on the

public-duty doctrine”).

The cases reaffirming exceptions to the ordinary duty to exercise

reasonable care are in accord with the Restatement (Third). The

Restatement (Third) recognizes there are exceptions to the duty of

reasonable care. See Restatement (Third) § 7(b), at 77 (“In exceptional

cases, when an articulated countervailing principle or policy warrants

denying or limiting liability in a particular class of cases, a court may

decide that the defendant has no duty or that the ordinary duty of

reasonable care requires modification.”); id. § 51 cmt. b, at 243–44

(recognizing the same exceptions to the duty of reasonable care apply with

respect to causes of action based on premises liability).

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In accord with the Restatement (Third), we have said “a lack of duty

may be found if either the relationship between the parties or public

considerations warrants such a conclusion.” McCormick, 819 N.W.2d at

371. With respect to this second category, “[o]nly ‘in exceptional cases’

will th[e] general duty of reasonable care not apply. ‘An exceptional case

is one in which “an articulated countervailing principle or policy warrants

denying or limiting liability in a particular class of cases.” ’ ” Estate of

Gottschalk v. Pomeroy Dev., Inc., 893 N.W.2d 579, 586–87 (Iowa 2017)

(quoting Brokaw v. Winfield-Mt. Union Cmty. Sch. Dist., 788 N.W.2d 386,

391 (Iowa 2010)). “The principle or policy that is the basis for modifying

or eliminating the ordinary duty of care contained in § 7(a) may be reflected

in longstanding precedent . . . .” Restatement (Third) § 7 cmt. a, at 78.

The continuing storm doctrine is a long-standing “articulated

countervailing principle or policy” that warrants limiting liability for land

possessors as a result of injury caused by the ongoing accumulation of ice

or snow. At the eye of the continuing storm doctrine is a recognition of

“[t]he feebleness of human . . . efforts in attempting to cope with the power

of the elements.” Alcala, 880 N.W.2d at 711 (quoting Staples v. City of

Spencer, 222 Iowa 1241, 1244, 271 N.W. 200, 202 (1937) (alteration in

original)). Because of our recognized feebleness in coping with the

elements, “[t]he continuing-storm doctrine suspends a property owner’s

general duty to exercise reasonable care in warning of or removing snow

and ice hazards until a reasonable time after the storm because

continually clearing ice and snow during an ongoing storm would be

impracticable.” Id. As Justice Hecht noted in Alcala: “The rule’s purpose

is essentially to prevent land occupiers from having to undertake

Sisyphean tasks every time it snows.” Id. at 721–22 (Hecht, J., concurring

in part, dissenting in part).

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Significant policy reasons justify relieving a land possessor of the

duty to undertake Sisyphean action during a storm. The continuing storm

doctrine recognizes a land possessor is not a de facto insurer responsible

for all accidents occurring on its property. See Munsill v. United States, 14

F. Supp. 2d 214, 221 (D.R.I. 1998) (“Requiring a business owner to remove

snow before a storm ends would hold him to an extraordinary standard of

care, forcing him, in effect, to become an insurer of the safety of business

invitees.”); Martin v. Safeway Stores Inc., 565 P.2d 1139, 1141 (Utah 1977)

(“Owners of stores, banks, office buildings, theaters or other buildings

where the public is invited to come on business or for pleasure are not

insurers against all forms of accidents that may happen to any who come.

It is not the duty of persons in control of such buildings to mop the

sidewalk dry or take other steps necessary to prevent the accumulation of

moisture on the sidewalk that might freeze and create an icy condition.”).

The doctrine also allows businesses to remain open to travelers and

others who might need provisions or other supplies during a winter storm

by “alleviating the concerns of business owners that if they stay open

during a storm they will expose themselves to the expense of tort suits over

falls that are a natural risk in any storm situation involving icy or snowy

conditions.” Laine v. Speedway, LLC, 177 A.3d 1227, 1232 n.18 (Del.

2018). Relatedly, the doctrine helps to reduce the total number of weather-

related injuries by reducing the risk of injury to the land possessor and

the land possessor’s employees and contractors:

Every pedestrian who ventures out [when the weather renders

the premises slippery] knows he is risking the chance of a fall

and of a possible serious injury. It is a hazard to which nature

subjects all alike, him who undertakes to remove or correct it

as well as the one for whose protection the risk of removal or

correction is incurred. It would be an unreasonable rule

which would impose upon an inviter the necessity of repeated

excursions into the storm, with the attendant risks of

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exposure and injury to himself, in order to relieve the invitee

of all risk from this natural hazard.

Walker, 45 S.E.2d at 907.

Other courts have recognized these same public policy

considerations and continue to adhere to the continuing storm doctrine or

storm in progress doctrine. See, e.g., Phillips v. Superamerica Grp., Inc.,

852 F. Supp. 504, 506–07 (N.D. W.Va. 1994), aff’d, 54 F.3d 773 (4th Cir.

1995); Finnigan v. United States, No. 5:15-cv-3515-BHH-KDW, 2016 WL

5858715, at *7, *9 (D.S.C. Aug. 5, 2016); Kraus v. Newton, 558 A.2d 240,

243 (Conn. 1989); Laine, 177 A.3d at 1233; Jones v. Hansen, 867 P.2d

303, 311 (Kan. 1994); Mattson v. St. Luke’s Hosp. of St. Paul, 89 N.W.2d

743, 745 (Minn. 1958); Sherman v. N.Y. State Thruway Auth., 52 N.E.3d

231, 232 (N.Y. 2016); Fuller v. Hous. Auth. of Providence, 279 A.2d 438,

441 (R.I. 1971); Grizzell v. Foxx, 348 S.W.2d 815, 817 (Tenn. Ct. App.

1960); Walker, 45 S.E.2d at 904.

As these authorities show, the continuing storm doctrine reflects a

widespread policy consensus that land possessors should not be forced to

undertake snow or ice removal in the midst of a storm. The overall social

costs of requiring people to go outside and clear during a storm exceed the

overall social benefits of cleared passageways that will soon be covered

over by additional accumulation. This social consensus is reflected in

ordinances around our state that do not require land possessors to remove

snow from sidewalks until after the last snow accumulation. See, e.g.,

Ames, Iowa, Code § 22.2(2) (2017) (“No owner shall, for a period of ten (10)

daylight hours after the cessation of the storm or cause of accumulation,

permit snow, ice, or accumulations to remain upon the adjoining and

abutting sidewalks.” Emphasis added.)).

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In sum, the doctrine holds a land possessor has no duty to remove

the natural accumulation of snow or ice during an ongoing storm and for

a reasonable time after the cessation of the storm. The doctrine is

long-standing in Iowa. See Book v. Doublestar Dongfeng Tyre Co., 860

N.W.2d 576, 594 (Iowa 2015) (“Stare decisis alone dictates continued

adherence to our precedent absent a compelling reason to change the

law.”). The doctrine is consistent with the duty analyses of the

Restatement (Third). The doctrine is supported by public policy

considerations. The doctrine is the rule in a number of jurisdictions. We

decline Gries’s request to abandon the continuing storm doctrine.

III.

Gries contends, in the alternative, the district court erred in granting

Stonehaven’s motion for summary judgment. She contends Stonehaven

failed to establish the continuing storm doctrine entitled Stonehaven to

judgment as a matter of law. We agree.

The summary judgment record shows the following. On the night of

February 22, 2018, Gries exited her apartment building at approximately

10:30 p.m. to catch a cab and go to work. As she exited the building, Gries

noticed it was cold and misting outside. She saw the sidewalk looked wet.

She tested the sidewalk with her foot to check if it was icy. While taking

“baby steps” toward the cab, Gries slipped and fell on the icy sidewalk.

Gries was sixty-three years old at the time of the fall. The apartment

building had a large sign outside proclaiming the apartment was “Senior

and Mobility-Impaired Housing.” As a result of the fall, Gries broke her

left ankle and suffered other injuries.

The parties disputed the weather conditions at the time of the fall.

In support of its motion for summary judgment, Stonehaven submitted the

expert report of Dan Hicks. In preparing his report, Hicks relied on

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information from three agencies and “various weather reporting stations

in the Ames, Iowa area.” According to Hicks,

Precipitation was reported in the Ames, Iowa area on February

22 and early on February 23, 2018. Precipitation amounts for

this period were in the range of .21 to .32 inches, with some

trace amounts of snow reported. The automated weather

reporting station at the Ames, Iowa Airport reported some light

snow during the morning of February 22, 2018, then a brief

period of freezing rain around 12:00 to 1:00 PM CST.

Precipitation was again reported at this location starting

between 6:00 and 7:00 PM CST on February 22, 2018 and

continuing through the end of the day. There were times when

precipitation was not recorded during this period. The

precipitation type was reported as unknown and freezing rain,

changing to rain on the evening of February 22, as the air

temperature warmed from 32 degrees F. to slightly above

freezing. The air temperature at this location was reported at

32 degrees F. on the evening of February 22, 2018 through

around 9:00 PM CST, then in the range of 32 to 34 degrees F.

for the rest of the evening until Midnight CST. Precipitation

of unknown type was reported between 12:00 AM and 2:00

AM CST on February 23, 2018 with the air temperature at 32

degrees F.

Hicks opined,

[T]he precipitation that fell in the Ames, Iowa area on the

evening of February 22, 2018 would have resulted in some

light ice accumulation and also liquid water accumulation on

surfaces.

Gries submitted data from the National Oceanic and Atmospheric

Administration (NOAA) that indicated only “0.00 to 0.16 inches of rain or

melted snow fell . . . in the Ames area on February 22, 2018.” No snow,

ice pellets, or hail was recorded. According to the NOAA data, the weather

station at the Ames airport, which was 1.07 nautical miles from the

apartment, recorded no precipitation February 21 and only .16 inches of

precipitation in the form of mist, freezing rain or drizzle, and smoke or

haze on February 22.

The witnesses differed on the issue of whether snow and ice had

accumulated or were accumulating on the apartment grounds and

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whether there was active precipitation at the time of Gries’s fall. Kevin

Burkett, an administrator for Stonehaven, testified in his deposition that

the sidewalk was clear of snow and ice at around four o’clock in the

afternoon. He also testified that if he “had known that it was raining or

ice was being created or there was snow,” a staff member would have called

the building’s snow-removal contractors to remove it. Gries testified she

did not know what the weather was like earlier in the day. But, as

discussed above, she remembered it was cold and misty and the sidewalk

looked wet at approximately 10:30 p.m. when she went outside.

On this record, the district court granted Stonehaven’s motion for

summary judgment. The district court found the parties’ evidence on the

weather conditions for that day did not differ. In the order granting

summary judgment, the district court mistakenly identified Hicks’s report

as evidence provided by Gries in her resistance to the motion for summary

judgment. Gries filed a motion to reconsider pursuant to Iowa Rule of Civil

Procedure 1.904(2). In ruling on Gries’s motion to reconsider, the district

court admitted it “garbled the sources of the weather.” It noted, however,

“the key point [was] that the weather reports do not really contradict each

other in any material way.” The court explained,

The one report from the site nearest to the scene of the

accident confirms [Hicks’s report]. Furthermore, plaintiff

herself admitted that at the time and date in question it was

misting, the sidewalk looked like it was wet and it was cold.

The court concluded,

[P]laintiff failed to show that a material fact issue exists as to

whether there was a continuing storm on the date and at the

place in question. The Court continues to find that it is an

undisputed fact that at all relevant times and at the location

of plaintiff’s apartment the air temperature fluctuated above

and below the freezing point and there was a continuous

period of some form of precipitation falling. The Court

continues to find that there was a continuous winter storm at

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the time in question and that the continuous storm doctrine

should be applied.

The district court’s sole focus on whether there was ongoing

precipitation at the time Gries fell misapprehends the continuing storm

doctrine. The doctrine is not “the continuing mist doctrine.” Mere

precipitation is not enough to constitute a storm sufficient to relieve a land

possessor of the duty to remove or ameliorate the natural accumulation of

snow or ice. Instead, there must be meaningful, ongoing accumulation of

snow or ice. Only a weather event satisfying this standard constitutes a

“storm” for the purposes of the continuing storm doctrine.

For example, in Reuter, we held the defendant was entitled to

directed verdict where the plaintiff fell during the middle of an ongoing,

severe snow storm. Specifically, on “the date of the accident, snow started

falling sometime in the forenoon. It continued to fall until some time after

the accident, gaining in volume as the day progressed. It was intermingled

with rain, sleet, driving winds and a subfreezing temperature. As stated

by several of the witnesses, it was the heaviest snow fall of the winter.”

Reuter, 244 Iowa at 941, 57 N.W.2d at 226. In concluding the defendant

was entitled to directed verdict, we explained the “general controlling

principle is that changing conditions due to the pending storm render it

inexpedient and impracticable to take earlier effective action, and that

ordinary care does not require it.” Id. at 943, 57 N.W.2d at 227 (quoting

Walker, 45 S.E.2d at 902).

Our courts have also concluded the continuing storm doctrine

relieves a land possessor of the duty to remove or ameliorate the natural

accumulation of snow or ice in less severe circumstances. In Hovden v.

City of Decorah, we concluded the defendant was entitled to judgment

notwithstanding the verdict when “a trace of snow was recorded” on the

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day of the plaintiff’s fall and “[i]t had been snowing off and on all morning.”

261 Iowa 624, 628, 155 N.W.2d 534, 537 (1968), superseded by statute,

1984 Iowa Acts ch. 1002, § 1. Yet in this case “it was still snowing” at the

time the plaintiff fell, and “[t]he snow continued until after the accident.”

Id. at 628–29, 155 N.W.2d at 537–38. In Rochford, the court of appeals

concluded “that the continuing storm doctrine—or ‘storm in progress’

doctrine—‘is not limited to situations where blizzard conditions exist; it

also applies in situations where there is some type of less severe, yet still

inclement winter weather.’ ” 845 N.W.2d at 718 (quoting Glover v.

Botsford, 971 N.Y.S.2d 771, 772 (App. Div. 2013)).

Although the weather conditions in Hovden and Rochford were not

as severe as those in Reuter, there was evidence establishing the weather

conditions were ongoing and were sufficiently severe that efforts to remove

or ameliorate the natural accumulation of snow or ice would have been

inexpedient or impracticable. See Hovden, 261 Iowa at 629–30, 155

N.W.2d at 538 (stating the “snow continued until after the accident” and

would have made it “inexpedient and impracticable” for the defendant to

clear the sidewalk (quoting Walker, 45 S.E.2d at 902)); Rochford, 845

N.W.2d at 717 ([T]he undisputed facts of the weather event rendered it

inexpedient and impractical for [the defendant] to have taken action before

[plaintiff’s] fall to remove the ice from the sidewalk and . . . it was not

necessary to decide whether the facts fit the definition of a ‘storm.’ ”).

When the record is undisputed that meaningful snow or ice

accumulation had begun and was ongoing at the time of the accident, then

it may be appropriate to hold the land possessor had no duty as a matter

of law. Thus, in Reuter, Hovden, and Rochford, the court was able to

determine, as a matter of law, the land possessor owed no duty because

there was an ongoing accumulation of snow or ice.

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However, where, as here, a factual dispute exists as to whether there

was a continuing storm, the appropriate course is to instruct the jury on

the doctrine and leave the fact-finding to the jury. See Restatement (Third)

§ 7 cmt. b, at 79. (“When resolution of disputed adjudicative facts bears

on the existence or scope of a duty, the case should be submitted to the

jury . . . .”); see also Kraus, 558 A.2d at 243–44 (“Our decision, however,

does not foreclose submission to the jury . . . of the factual determinations

of whether a storm has ended or whether a plaintiff’s injury has resulted

from new ice or old ice when the effects of separate storms begin to

converge.”); Laine, 177 A.3d at 1230 (“[T]he reasonableness of any delay

[in clearing accumulations of ice and snow] should be treated as any

question of fact.”); Buchanan v. TD Bank, N.A., No. K15C–12–020 RBY,

2016 WL 3621102, at *2 (Del. Super. Ct. June 28, 2016) (denying

summary judgment where there were “questions of fact remaining

regarding the weather conditions at the time and location of the accident”);

Jefferson v. Long, No. 388/10, 2012 WL 3854864, at *4 (N.Y. Sup. Ct. Aug.

31, 2012) (“[N]otwithstanding defendant’s expert’s conclusion, courts have

held that trace precipitation does not constitute an ongoing storm. Thus,

there is a question of fact as to whether or not there was a storm in

progress at the time of plaintiff’s accident.” (Footnote omitted.) (Citation

omitted.)). Where the matter is submitted to the finder of fact, “the plaintiff

bears the burden of proof on facts necessary to establish a duty.”

Restatement (Third) § 7 cmt. b, at 79.

Thus, for example, in Wailes, the court of appeals concluded the

district court correctly gave a jury instruction on the continuing storm

doctrine when the plaintiff challenged the timing of the defendant’s snow

removal. 861 N.W.2d at 267–68. In Alcala, we vacated a plaintiff’s verdict

and remanded the matter for new trial due to several instructional errors.

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880 N.W.2d at 700, 710–11 (majority opinion). In discussing the

application of the continuing storm doctrine on the facts of that case, we

recognized the issue was potentially a question of adjudicative fact for the

jury. See id. at 711 (“Because we have determined that the instructional

errors discussed above require a new trial, we need not decide whether the

district court erred by refusing Marriott’s requested instruction on the

continuing-storm doctrine. We recognize the issue will arise again on

remand if Marriott renews its request for an instruction on the doctrine.”).

The weather conditions in Alcala were similar to those here, including “fog

or mist,” “freezing rain or drizzle,” and “trace amounts of precipitation.”

Id. at 702.

Here, the summary judgment record does not establish as a matter

of law that there was an ongoing accumulation of snow or ice. The parties

dispute the weather conditions at the location in question. The weather

reports show at best only trace amounts of precipitation on and off

throughout the day in question. Indeed, the weather conditions were so

mild that Burkett concluded it was not even necessary to contact

Stonehaven’s snow-removal contractors to take action. On this record, the

district court erred in granting the defendant’s motion for summary

judgment.

IV.

For these reasons, we reverse the judgment of the district court, and

we remand this matter for further proceedings.

REVERSED AND REMANDED.

All justices concur except Appel, J., who concurs in part and

dissents in part.

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#19–1306, Gries v. Ames Ecumenical Housing

APPEL, Justice (concurring in part and dissenting in part).

I concur in the result in this case, but I dissent on the question of

the continued viability of the archaic, unworkable, and outmoded

continuing storm doctrine. Indeed, the slicing and dicing in this case is

an excellent example of why the doctrine should be abandoned.

At the outset, I agree that section 7 of the Restatement (Third) of

Torts does not preclude public policy exceptions to general rules of tort

liability. Restatement (Third) of Torts: Liab. for Physical & Emotional Harm

§ 7 (Am. Law Inst. 2010) [hereinafter Restatement (Third)]. But public

policy exceptions under section 7(b) of the Restatement (Third) are

necessarily antidemocratic because they rest on the view that our citizen

jurors are simply incapable of applying traditional tort law in certain

circumstances, or alternatively, that some special interest group or special

activity is so important in the eyes of judges, that the ordinary application

of tort rules of accountability cannot be enforced.

While the Restatement (Third) expressly permits such public policy

exceptions, such exceptions should be few and far between and only where

public policy is so compelling that the question of liability cannot be

entrusted to juries or fact-finding judges. See, e.g., John B. v. Super. Ct.,

137 P.3d 153, 161–62 (Cal. 2006) (“Although it is true that some

exceptions have been made to the general principle that a person is liable

for injuries caused by his failure to exercise reasonable care in the

circumstances, it is clear that in the absence of a statutory provision

declaring an exception . . . no such exception should be made unless clearly

supported by public policy.” (emphasis added) (quoting Rowland v.

Christian, 443 P.2d 561, 564 (Cal. 1968))). In addition, even when public

policy exceptions might be justifiable, they must be vigorously policed to

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prevent them from escaping their narrow confines. The fact that the

presence of a very fine mist is deemed by some to be sufficient to trigger

the continuing storm doctrine shows how elastic immunity doctrines may

become.

The so-called continuing storm doctrine is based on the proposition

that jurors are incapable of sorting through negligent handling of snow

and ice by premises owners from situations where it would be

unreasonable to expect a property owner from abating hazards.

Apparently, the fear is that jurors in Iowa would hold landlords liable when

they could not reasonably be considered at fault. But in Iowa, just about

everybody, at some time in their lives, has shoveled snow, put down ice

melt, and stared out the window wondering what next steps to take. I see

no reason to believe that Iowa jurors lack the capability to evaluate the

reasonability of a premises owner’s actions during inclement conditions.

The continuing storm doctrine takes that judgment away from

jurors, puts the judge in the driver’s seat, and then irrationally gives the

judge a limited toolbox to decide whether to take the case away from the

jury. The judge is to make arcane determinations, such as whether a

storm was in progress, whether it was continuous, and whether there was

a pause or break in the action sufficient to permit a lawsuit to proceed.

The casebooks groan with judicial efforts to make these fine distinctions,

based on slight variation in temperature, whether the rain was icy or not,

whether there was rain or mist, and whether there was actually a pause

or simply a lessening of the inclement weather. See generally, Landlord’s

Liability to Tenant or Tenant’s Invitee for Injury or Death Due to Ice or Snow

in Areas or Passageways Used in Common by Tenants, 49 A.L.R.3d 387

(Originally published in 1973) (containing 103 pages of slice and dice case

squibs); Landlord’s Liability for Injury Caused by Accumulation of Snow

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and Ice on Common Areas of Leased Premises, 88 Am. Jur. Proof of Facts

3d 307 (Originally published in 2006) (containing 87 similar pages).

What is astonishingly not considered under the continuing storm

doctrine is the ability of the landowner to abate hazards. Apparently, the

wide availability of snow removal implements with climate controlled cabs,

powerful snow blowers, buckets of ice melt and convenient applicators,

and other snow removal devices is completely irrelevant on the question of

liability under the continuing storm doctrine. A storm is a storm is a

storm, apparently, regardless of the ability of the landowner to abate the

hazard. Such an approach is nonsensical. As noted by a Massachusetts

case in a snow and ice context,

[T]oday a landlord, armed with an ample supply of salt, sand,

scrapers, shovels and even perhaps a snow blower, can acquit

himself quite admirably as he takes to the common

passageways to do battle with the fallen snow, the sun-melted

snow now turned to ice, or the frozen rain.

Papadopoulos v. Target Corp., 930 N.E.2d 142, 152 (Mass. 2010) (quoting

Fuller v. Hous. Auth. of Providence, 279 A.2d 438, 440 (R.I. 1971)).

Further, the nature of the property use is irrelevant under our

current method of examination. The fact that the landlord was aware that

senior citizens used a sidewalk, for instance, during evening hours is

completely irrelevant if there is some ongoing precipitation. Really? The

walkway to a senior citizen center during a period of time when foot traffic

can be expected is treated the same as a walkway to nowhere in the dead

of winter that is rarely traversed by anyone.

Yes, the continuing storm doctrine remains the majority rule, but

there is a better-reasoned minority position. For example, in Budzko v.

One City Center Associates Limited Partnership, 767 A.2d 310 (Me. 2001),

the Maine Supreme Court rejected the rule as inconsistent with general

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tort duty. Id. at 314 n.3. Similarly, appellate courts in the states of

Indiana, Kentucky, Michigan, Nebraska, and Washington have rejected

the continuing storm doctrine. Henderson v. Reid Hosp. & Healthcare

Servs., 17 N.E.3d 311, 317 (Ind. Ct. App. 2014); Carter v. Bullitt Host, LLC,

471 S.W.3d 288, 299–300 (Ky. 2015); Lundy v. Groty, 367 N.W.2d 448,

449–50 (Mich. Ct. App. 1985); Danner v. Myott Park, Ltd., 306 N.W.2d 580,

583 (Neb. 1981); Cramer v. Van Parys, 500 P.2d 1255, 1262 (Wash. Ct.

App. 1972).

Of course, the above cases do not make the landlord an insurer, a

slogan frequently recited as received wisdom in support of the continuing

storm doctrine. As noted by the Kentucky Supreme Court,

It is true that no one controls the weather; but neither

is anyone reasonably expected to do so. A landowner is held

only to reasonable conduct. The gravamen of a tort claim has

always been that harm has come to a plaintiff because of the

unreasonable conduct of the tortfeasor. Such conduct need

only be the conduct that the ordinary person would not do

under the same circumstances, in order to be tortious.

Carter, 471 S.W.3d at 299–300.

Earlier this year, in April of 2020, a New Jersey appellate court took

the time to step back and carefully consider the merits of the continuing

storm doctrine. In Pareja v. Princeton International Properties, ___ A.3d ___,

2020 WL 1764922 (N.J. Super. Ct. App. Div. Apr. 9, 2020), the court

considered the question of whether the continuing storm doctrine relieves

commercial landowners from rendering their property safe while sleet or

snow is falling. Id. at *1. The Pareja court rejected the application of the

continuing storm doctrine. Id. The opinion thoroughly explores the issue

and, as such, is worth quoting at length.

Early on, the Pareja court announced its essential holding,

[A] commercial landowner has a duty to take reasonable steps

to render a public walkway abutting its property—covered by

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snow or ice—reasonably safe. Such a duty—to remove or

reduce a foreseeable hazard—cannot be fulfilled by always

waiting to act until after a storm ends, regardless of the risk

imposed to invitees and pedestrians.

Id. Like the Kentucky Supreme Court in Carter, the Pareja court also

addressed the argument that abolition of the continuing storm rule and

application of ordinary tort rules renders the landlord an insurer. Id. at

*6. The Pareja court stated that,

[W]e are not, as counsel say, imposing on the owner of the

premises a burden physically impossible to discharge or one

which makes the owner the guarantor of the safety of his

tenants and their guests. We do not hold there was an

absolute duty to provide a safe entrance or to keep it safe by

extraordinary or unusual means. If the storm made the

spreading of sand or ashes or some other preventive

impossible or even useless, no reasonable person would

expect it to be done.

Id. (quoting Pessagno v. Euclid Inv. Co., 112 F.2d 577, 579 (D.C. Cir.

1940)).

In justifying their rejection of the continuing storm doctrine, the

Pareja court noted the rigidity of the ongoing storm doctrine and its failure

to consider key factors undermines the policy of tort law. Id. at *8. In that

way, the court found,

Imposing a rigid judicial declaration that all action

would always be useless or excessive, ignores the main aim of

tort law, and overlooks situations where a commercial

landowner’s ordinary effort to remove or reduce snow and ice

hazards would be reasonable. To permit commercial

landowners under every circumstance to wait until the end of

a storm before taking any reasonable precautions, or to

attempt removing or reducing known precipitation hazards,

would arbitrarily create a rigidity in the law inconsistent with

the innumerable variables that are possible.

Id.

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Finally, the Pareja court listed a number of factors that a jury might

consider in determining the reasonableness of a commercial owner’s

conduct. According to the Pareja court, a jury could consider

(1) Whether any action would be inexpedient or impractical;

(2) the extent of the precipitation, including the amount of

snow or ice accumulation; (3) the timing of the precipitation,

whether it’s day or night; (4) the nature of the efforts, if any,

to prevent, remove, or reduce snow or ice accumulation,

especially whether conditions were so hazardous as to make

it unsafe for the landowner or any contractor to venture out

in the elements; (5) the minimal usage consequent on a

“closed” facility in contrast to a normal work week; (6) the

number of individuals expected to use the public sidewalk,

premises, and the area in need of attention; (7) the past,

current, and anticipated weather conditions, including but

not solely dependent on reliable weather predictions, and the

practicality of reasonable safety measures or methods of

ingress or egress; and (8) any other relevant factors.

Id. at *10.

In my view, the continuing storm doctrine is an approach to tort law

that has long outlived whatever usefulness it might have once had. I would

abandon it and allow tort claims involving snow and ice be treated like any

other claim. A brittle, categorical doctrine that relies on fine distinctions

and excludes consideration of important factors has little to nothing to

commend it. Our citizen jurors are perfectly capable of considering prosaic

snow and ice issues without the unnecessary intervention of judges with

poorly designed tools that prevent accountability in tort in cases where it

should reasonably be imposed.

For the above reasons, I would reverse and remand the case for trial

on the merits.