One of the most common situations in which a person slips and falls is the parking lot or sidewalk or business entrance that was not properly plowed or salted following a snowstorm.
The most important concept to remember when trying to prevail on those cases is the facts matter. Each case can be very different and result in different outcomes.
First, the courts recognize a duty under Indiana law for businesses to remove ice and snow from their premises — they just can’t ignore it and wait for warmer weather (Hammond v. Allegretti, 311 N.E.2d 821, 826, Indiana Supreme Court, 1974). The duty stems from the landowner’s overall duty to exercise “reasonable care” when running a business with regard to the premises.
What is “reasonable?” Well, a jury will determine that concept, but it’s usually just plain common sense.
Consequently, a very common question we get is how long is the time period in which a landowner may clear snow or ice that has fallen before he/she is considered “unreasonable” or negligent?
In one case, an Indiana court found that a landlord had breached his duty of care where he had not cleared stairs on his property that had been accumulating ice and snow for a week (Rossow v. Jones, 404 N.E.2d 12, 14 (Ind. Ct. App. 1980). On the other hand, a federal court, applying Indiana law, found that a hotel was not unreasonable or negligent when the ice storm had only started twenty minutes prior to a guest’s slip and fall (Rising-Moore v. Red Roof Inns, Inc., 368 F. Supp. 2d 867 (S.D. Ind. 2005).
The concept of “notice” is important because there must be sufficient notice to the landowner of the hazardous condition — if the landowner doesn’t have sufficient time to clear up the problem, then he can’t be held liable for an injury. For example, a “sudden change in weather” with little warning has been found by a court to relieve the landowner of being liable because he didn’t have time to attempt to fix the issue (See Orth v. Smedley, 378 N.E.2d 20 (Ind. Ct. App. 1978).
But, on the other hand, if the landowner has actual notice that the formation of ice problem is continuous and happens often, a change in the weather won’t relieve him of his duty to attempt to fix the problem. In other words, the landowner can’t rely upon the change in the weather that created ice if it happens nearly everytime a change in weather occurs where ice can form (Bell v. Grandville Coop., Inc., 950 N.E.2d 747, 752 (Ind. Ct. App. 2011) (tenant’s daughter notified landlord on numerous occasion of are where ice regularly formed after snowfall; landlord did nothing to prevent or rectify condition and tenant slipped and fell).
It has also been held by an Indiana court that a landowner has no duty to clear ice and snow during a snowstorm.
As you can see, it’s very tricky to recover when ice and snow causes a fall. It can depend upon many factors. Here at McKibben Shaw Law, we investigate all snow/ice contracts to make sure that the landowner and snow plow company followed what they were supposed to do. We check weather reports to see if the ice and snow was foreseeable and what steps were taken to protect customers.
As I have told juries many times, a business is not “forced” to open when bad weather occurs. It’s a choice.
And if that choice is made, then customers’ safety must be taken care of before opening.
That’s why it’s best to see us.
We Get You Back on Your Feet.