Selby v. Conquistador Apartments, Ltd., 98-321.

• Decision Date: 18 November 1999
• Docket Number: No. 98-321.,98-321.
• Citation: 990 P.2d 491
• Parties: Teresa R. SELBY and Frank P. Selby, husband and wife, Appellants (Plaintiffs), v. CONQUISTADOR APARTMENTS, LTD., a Wyoming partnership, Appellee (Defendant).
• Court: Wyoming Supreme Court

990 P.2d 491

Teresa R. SELBY and Frank P. Selby, husband and wife, Appellants (Plaintiffs), v. CONQUISTADOR APARTMENTS, LTD., a Wyoming partnership, Appellee (Defendant).

No. 98-321.

Supreme Court of Wyoming.

November 18, 1999.

Representing Appellants: Philip T. Willoughby, Attorney at Law, Casper, WY.

Representing Appellee: Rex O. Arney and Timothy M. Stubson of Brown, Drew & Massey, LLP, Casper, WY.

Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and HILL, JJ.

HILL, Justice.

Appellants, Teresa R. Selby and her husband, Frank P. Selby, filed this action against Conquistador Apartments, Ltd. (Conquistador) alleging negligence on the part of Conquistador as to the maintenance of a common area used by tenants of an apartment complex resulting in injury to Mrs. Selby when she slipped and fell on a patch of ice in the parking lot of the complex. The district court granted summary judgment in favor of Conquistador on the grounds that the patch of ice upon which Mrs. Selby slipped was a natural accumulation and, therefore, no duty was owed to the Selbys. Finding that there are genuine issues of material fact as to whether the patch of ice was a natural accumulation or a condition created and/or aggravated by Conquistador, we reverse.

ISSUES

Appellants provide the following statement of the issues:

Granting summary judgment did the District Court err finding as a matter of law the defendant/appellee was entitled to summary judgment in that the owner of a multiple unit apartment complex is not liable for injuries resulting from a slip and fall on a natural accumulation of snow and ice on or about a common use area of necessity?

A) Was the icy area on which the appellant stepped and fell a "natural accumulation" of ice relieving the owner of [the] premises of liability and is the determination of that issue a matter of fact or law?

B) Should the District Court have found the owner of a 96 unit apartment complex has a duty of reasonable care to tenants and the issue of failure to maintain a common area of necessity and breach of this duty leaves issues of material fact and reasonable care to be decided by a jury?

C) Should the District Court have applied as the law of the case the Restatement (Second) of Torts as set out in Plaintiff's Memorandum In Opposition And Response To Defendant's Motion For Summary Judgment leaving issues of material fact and reasonable care to be decided by a jury?

D) Should the Supreme Court adopt the Restatement (Second) of Torts as set out in Plaintiff's Memorandum In Opposition And Response To Defendant's Motion For Summary Judgment as the law of this case and of Wyoming leaving issues of material fact and reasonable care to be decided by a jury?

Appellee Conquistador responds with a more succinct statement of the issues before us:

1. Whether there is a material issue of fact relevant to the application of the natural accumulation rule to a fall caused by a small patch of ice found in the parking lot of an apartment complex.

2. Whether the natural accumulation rule is applicable to the landlord-tenant relationship.

FACTS

Mr. and Mrs. Selby were residents of Conquistador on November 14, 1994. On that day, Mrs. Selby loaded garbage into her car and drove it across the apartment parking lot to a common trash dumpster. The dumpster was located in the corner of the parking lot. Immediately adjacent to the dumpster area on one side were painted parking spots. The dumpster area was specifically designated by striped yellow lines and was built so as to slope away from the parking spots toward a drainage gutter. At the time of the accident, the dumpster itself was located near the closest parking spot and away from the drainage gutter. The dumpster, which had two lids that opened toward the rear so that trash could be placed in it from the sides or the front, was about two to three feet from a parked vehicle, which had been in place for 3-4 days.

The weather on the day of the accident was clear. Snow and ice, which had accumulated in and around the parking lot, were melting in the areas that were directly exposed to the sun. The manager of Conquistador usually plowed and applied Ice Melt to areas around the dumpster, except when a car was parked next to the dumpster which prevented the use of the plow in that area. Ice Melt had not been applied around the dumpster on the day of Mrs. Selby's injury because the weather was dry, and it had not snowed in a week. However, the area between the dumpster and the parked vehicle was not exposed to the sun due to shadows resulting from the location of the vehicle and the dumpster. Consequently, a patch of black ice had formed in the space and had not melted.

Upon arriving at the dumpster, Mrs. Selby stepped into the area between the parked vehicle and the dumpster. As she hefted the garbage bag to throw it into the dumpster, she slipped on the ice and suffered a fracture in her right leg. Subsequently, Mr. and Mrs. Selby brought this action alleging negligence on the part of Conquistador in the maintenance of the parking lot.

The district court granted Conquistador's motion for summary judgment based upon the conclusion that the patch of ice was a natural accumulation, and under Wyoming law, the owner or occupier of property does not owe a duty to remove natural accumulations of snow and ice. The Selbys appeal that judgment to this Court.

STANDARD OF REVIEW

Summary judgment will be sustained only if there is no genuine issue of material fact and the prevailing party is entitled to judgment as a matter of law. A material fact is one that establishes or refutes an essential element of a cause of action or a defense asserted by a party. If the moving party presents supporting summary judgment materials demonstrating that no genuine issue of material fact exists, the burden shifts to the nonmoving party to present appropriate supporting materials posing a genuine issue of a material fact for trial. On appeal, this Court examines the entire record in the light most favorable to the party who opposed the motion, affording that party all favorable inferences which may be drawn from the materials either supporting or opposing the motion. "If a dispute exists over a material fact which leads to conflicting interpretations or if reasonable minds might differ, then summary judgment is improper." Lyden v. Winer, 878 P.2d 516, 518 (Wyo.1994). When we review a grant of summary judgment deciding a question of law, we do so de novo and afford no deference to the district court's ruling. Blagrove v. JB Mechanical, Inc., 934 P.2d 1273, 1275 (Wyo.1997).

DISCUSSION

Natural Accumulation Rule

In Eiselein v. K-Mart, Inc., 868 P.2d 893, 897 (Wyo.1994), we held that absent an express intention from the legislature to abrogate the natural accumulation rule, the rule survived the adoption of comparative negligence. Simply expressed, the natural accumulation rule provides that an owner or occupier of premises is not liable for injuries resulting from a slip and fall on a natural accumulation of ice and snow. Id. The scope of the rule was succinctly set forth in Eiselein:

The justification for the natural-accumulation rule comports with the factors to be considered in determining the existence of a duty. The magnitude of the burden on defendant to prevent injuries from snow or ice is great. As noted above, 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. Even if the plaintiff is unaware of the ice or snow he happens to slip on, he may be charged with knowledge that ice or snow is a common hazard in winter, one which he must consistently guard against.

We agree with appellee that no justification exists for imposing on a property owner a duty to protect invitees from hazards which are naturally occurring and identical to those encountered off of the premises. However, the equities shift if the accumulation of ice or snow is not a natural accumulation, but rather an artificial condition created by the defendant. If the defendant creates the hazard, then it is within the defendant's control and he is in a better position to foresee and prevent injuries resulting from the hazard. If the condition occurs naturally, the defendant is in no better position than the plaintiff to prevent the injuries. See Tyrrell v. Investment Assoc., Inc., 16 Ohio App.3d 47, 48, 16 OBR 50, 50, 474 N.E.2d 621, 624 (1984)

.

868 P.2d at 897-98. To prove that an accumulation of ice or snow is unnatural, a plaintiff must show: (1) that the defendant created or aggravated the hazard; (2) that the defendant knew or should have known of the hazard; and (3) that the hazardous condition was substantially more dangerous than it would have been in its natural state. Paulson v. Andicoechea, 926 P.2d 955, 957 (Wyo. 1996); Pullman v. Outzen, 924 P.2d 416, 418 (Wyo.1996).

The application of the natural accumulation rule relates to the threshold question of whether a duty exists on the part of the defendant. Normally, this is a question of law to be determined by the courts. However, we have recognized that in certain instances the question of duty hinges upon the determination of certain basic facts and, in those rare circumstances, the question of the existence of a duty is properly placed before the trier of fact.

Although the issue of duty is usually decided by the district court as a matter of law, we have held that when the duty issue involves questions which are basic issues of fact, it should be resolved by the jury. In [Halpern v. Wheeldon, 890 P.2d 562, 565 (Wyo.1995) ], we stated:

In order to recover in any negligence action, a plaintiff must establish that the defendant owed a duty of care to him. Generally, the issue of duty is decided by the court as a matter of law. In certain instances, however,

...