SCOTT AND WHITE MEMORIAL HOSP. v. Fair, 08-0970.

• Decision Date: 07 May 2010
• Docket Number: No. 08-0970.,08-0970.
• Citation: 310 SW 3d 411
• Parties: SCOTT AND WHITE MEMORIAL HOSPITAL and Scott, Sherwood and Brindley Foundation, Petitioners, v. Gary FAIR and Linda Fair, Respondents.
• Court: Texas Supreme Court

310 SW 3d 411

SCOTT AND WHITE MEMORIAL HOSPITAL and Scott, Sherwood and Brindley Foundation, Petitioners,
v.
Gary FAIR and Linda Fair, Respondents.

No. 08-0970.

Supreme Court of Texas.

Argued December 15, 2009.

Decided May 7, 2010.

Rehearing Denied June 11, 2010.

Stuart Smith, Naman Howell Smith & Lee LLP, Waco, TX, Bruce Burleson, Attorney at Law, Belton, TX, for Petitioner.

Richard E. Brophy Jr., Frederick deB. Bostwick III, Julia Brooks Jurgensen, Beard Kultgen Brophy Bostwick Dickson & Squires, Waco, TX, for Respondent.

Bruce Burleson, Attorney at Law, Belton, TX, for other interested parties.

Chief Justice JEFFERSON delivered the opinion of the Court.

In this premises liability case, we must decide whether ice that accumulates naturally outside a business due to a winter storm poses an unreasonable risk of harm. Because we hold that it does not, we reverse in part the court of appeals' judgment and render judgment that the respondents take nothing.

I

Factual and Procedural Background

Gary Fair drove his wife to a doctor's appointment at Scott and White Memorial

310 SW 3d 412

Hospital the morning after a winter storm. The Fairs walked through the parking lot, across the roadway separating the parking lot from the hospital, and next to a set of stairs leading to the building. There was ice in the parking lot, on the road, and on the steps. After the appointment, Fair left the building to retrieve his car while his wife waited inside. Fair slipped and fell on the road that separated the hospital from the parking lot. The Fairs sued Scott and White Memorial Hospital and Scott, Sherwood and Brindley Foundation¹ (Scott and White) for damages arising from injuries Fair sustained in the fall

Scott and White moved for summary judgment, asserting that the accumulated ice did not pose an unreasonable risk of harm. The trial court granted Scott and White's motion and rendered judgment that the Fairs take nothing.²

The court of appeals reversed, holding that Scott and White failed to "conclusively establish that the ice accumulation was in its natural state and was not an unreasonably dangerous condition." 2008 Tex.App. LEXIS 4277, at *11. We granted Scott and White's petition for review, 52 Tex. Sup.Ct. J. 1133, 1140 (Aug. 21, 2009), and now reverse.

II

Discussion

A. Naturally accumulated ice does not pose an unreasonable risk of harm.

In a premises liability action, the duty owed by a premises owner depends on the plaintiff's status. In this case, the parties agree that the Fairs were invitees. 2008 Tex.App. LEXIS 4277, at *5. Thus, Scott and White owed a duty "to exercise reasonable care to protect against danger from a condition on the land that creates an unreasonable risk of harm of which the owner or occupier knew or by the exercise of reasonable care would discover." CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 101 (Tex.2000). Scott and White asserts that the naturally accumulated ice on its premises did not pose an unreasonable risk of harm to invitees. We agree.

On several prior occasions, we have addressed whether certain naturally occurring conditions create unreasonable risks of harm. We have held that dirt in its natural state does not pose such a risk. See Johnson County Sheriff's Posse, Inc. v. Endsley, 926 S.W.2d 284, 287 (Tex.1996) ("The natural state of dirt, that it may be slippery when wet or may contain small rocks, can present a hazard under the right conditions, but not unreasonably so.... Dirt containing small rocks is not an unreasonably dangerous condition for which a landlord may be held liable...."); Brownsville Navigation Dist. v. Izaguirre, 829 S.W.2d 159, 160-61 (Tex.1992) ("Plain dirt which ordinarily becomes soft and muddy when wet is not a dangerous condition of property for which a landlord may be liable."). More recently, we held that "ordinary mud that accumulates naturally on an outdoor concrete slab without the assistance or involvement of unnatural contact is, in normal circumstances, nothing more than dirt in its natural state and, therefore, is not a condition posing an unreasonable risk of harm." M.O. Dental

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Lab v. Rape, 139 S.W.3d 671, 676 (Tex. 2004) (per curiam). We recognized that holding a landowner accountable for naturally accumulated mud would impose a heavy burden because rain, a cause of mud, is beyond a premises owner's control. Id. Further, mud-induced accidents are likely to occur regardless of precautions taken by landowners, and invitees are often better positioned to avoid the dangers associated with muddy walkways. Id. Thus, because the mud in M.O. Dental accumulated due to rain and remained in its natural state, it was not a condition that posed an unreasonable risk of harm. Id.

Numerous courts of appeals have applied M.O. Dental's holding to premises liability cases involving other naturally occurring conditions, including ice,³ and have consistently concluded that naturally formed ice is not an unreasonably dangerous condition for premises liability purposes. See, e.g., Almazon v. Amli Residential Props. Ltd. P'ship, No. 03-08-00297-CV, 2009 WL 4456141, at *3, 2009 Tex.App. LEXIS 9266, at *7-*8 (Tex.App.-Austin Dec. 3, 2009, no pet.) (mem.op.). And, many have found no significant distinction between naturally occurring ice and naturally occurring mud. See Gagne v. Sears, Roebuck & Co., 201 S.W.3d 856, 858 (Tex.App.-Waco 2006, no pet.); Griffin v. 1438, Ltd., No. 02-03-255-CV, 2004 Tex. App. LEXIS 6403, at *9 (Tex.App.-Fort Worth July 15, 2004, no pet.) (mem.op.); see also Almazon, 2009 WL 4456141, at *1-2, 2009 Tex.App. LEXIS 9266, at *3-*4 (finding the rule for naturally occurring substances, such as mud, ice, and slime, to be the same); Haney v. Jerry's GM, Ltd., ___ S.W.3d ___, ___-___ (Tex.App.-El Paso 2009, no pet.) (emphasizing the Gagne court's analysis); Wal-Mart Stores, Inc. v. Surratt, 102 S.W.3d 437, 443-44 (Tex.App.-Eastland 2003, pet. denied) (citing the dirt cases as support). Before today, we have never addressed whether naturally occurring ice poses an unreasonable risk of harm.

The Fairs argue that ice should be treated differently from mud because, unlike mud, icy conditions occur rarely in Texas.

310 SW 3d 414

We see no basis for such a distinction. Both conditions pose the same risk of harm, and ice, like mud, results from precipitation beyond a premises owner's control. Further, invitees "are at least as aware as landowners of the existence of ice that has accumulated naturally outdoors and will often be in a better position to take immediate precautions against injury." M.O. Dental, 139 S.W.3d at 676; see also State Dep't of Highways & Pub. Transp. v. Kitchen, 867 S.W.2d 784, 786 (Tex.1993) (per curiam) ("When there is precipitation accompanied by near-freezing temperatures ... ice is neither unexpected nor unusual, but rather entirely predictable.... An icy bridge is something motorists can and should anticipate when the weather is conducive to such a condition."). As other jurisdictions have recognized

The magnitude of the burden on the defendant to prevent injuries from snow or ice is great.... Natural winter conditions make it impossible to prevent all accidents. The plaintiff is in a much better position to prevent injuries from ice or snow because the plaintiff can take precautions at the very moment the conditions are encountered.

Eiselein v. K-Mart, Inc., 868 P.2d 893, 898 (Wyo.1994).⁴

Ice in Texas may occur less frequently than mud, but frequency is only one of many factors relevant to our analysis. And, the relative irregularity of icy conditions in this state may weigh against imposing liability. Requiring premises owners to guard against wintery conditions would inflict a heavy burden because of the limited resources landowners likely have on hand to combat occasional ice accumulations. See Surratt, 102 S.W.3d at 443 ("A premises owner/operator will be required to expend a great deal of physical and financial effort to protect its invitees from a naturally occurring condition which usually disappears on its own in a short period of time."); cf. Geise v. Lee, 84 Wash.2d 866, 529 P.2d 1054, 1056 (1975) (imposing liability in a state accustomed to snow and ice because landlords are already "`armed with an ample supply of salt, sand, scrapers, shovels and even perhaps a snow blower'" (quoting Fuller v. Hous. Auth. of Providence, 108 R.I. 770, 279 A.2d 438, 440 (1971))). Because we find no reason to distinguish between the mud in M.O. Dental and the ice in this case, we hold that naturally occurring ice that accumulates without the assistance or involvement of unnatural contact is not an unreasonably dangerous condition sufficient to support a premises liability claim.

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B. Scott and White established that the ice was in its natural state.

Generally, "a natural accumulation of ice ... is one which accumulates as a result of an act of nature," Coletta v. Univ. of Akron, 49 Ohio App.3d 35, 550 N.E.2d 510, 512 (1988), whereas an "`unnatural' accumulation ... refers to causes and factors other than the inclement weather conditions ... i.e., to causes other than the meteorological forces of nature," Porter v. Miller, 13 Ohio App.3d 93, 468 N.E.2d 134, 136 (1983).⁵ Here, the court of appeals reversed the trial court's judgment because it concluded that Scott and White did not "conclusively establish that the ice accumulation was in its natural state." 2008 Tex.App. LEXIS 4277, at *11. We disagree.

The summary judgment evidence, which includes affidavits from a local meteorologist and the Scott and White grounds supervisor and deposition testimony from Fair, shows that an ice storm hit the Temple area causing ice to accumulate on the Scott and White grounds, including the road where Fair fell. The court of appeals discounted the testimony of Scott and White's grounds supervisor, Melissa Frei, which detailed the impact of the winter storm on the hospital property....