Woods v. Prices Corner Shopping Center Merchants Ass'n

• Decision Date: 10 December 1987
• Citation: 541 A.2d 574
• Parties: Phyllis P. WOODS and Albert C. Woods, Plaintiffs, v. PRICES CORNER SHOPPING CENTER MERCHANTS ASSOCIATION, Sears, Roebuck and Co., All Seasons Contractors, Inc., John A. Robbins Co., Inc., a/k/a John Robbins, Ltd., Jardel Co., Inc., and Center Ridge Co., an Ohio corporation, doing business as Center Ridge Co., # 46, Defendants. . Submitted:
• Court: Delaware Superior Court

Page 574

541 A.2d 574

Phyllis P. WOODS and Albert C. Woods, Plaintiffs, v. PRICES CORNER SHOPPING CENTER MERCHANTS ASSOCIATION, Sears Roebuck and Co., All Seasons Contractors, Inc., John A Robbins Co., Inc., a/k/a John Robbins, Ltd., Jardel Co Inc., and Center Ridge Co., an Ohio corporation, doing business as Center Ridge Co., # 46, Defendants.

Superior Court of Delaware New Castle County.

Submitted: Dec. 10, 1987.

Decided: April 7, 1988.

Theodore F. Sandstrom, Wilmington, for plaintiffs.

Ann L. Naczi of Tybout, Redfearn, Casarino & Pell, for defendants Prices Corner Shopping Center Merchants Ass'n, Sears, Roebuck and Co., John A. Robbins Co., Inc., Jardel Co., and Center Ridge Co. Frederick W. Iobst of Young, Conaway, Stargatt & Taylor, for defendant All Seasons Contractors, Inc.

TAYLOR, Judge.

Plaintiffs seek damages which have resulted from Phyllis P. Woods' [plaintiff] fall in the parking lot at Prices Corner Shopping Center [shopping center] on January 21, 1984. Plaintiff had gone to the parking lot to pick up a purchase and to pay her bill at the Sears store located in the shopping center.

Snow had fallen three times during the week preceding plaintiff's fall and the temperature had been 0? and 10? Fahrenheit. The entire parking lot and the roadway were covered with packed snow and ice. It did not appear that it had been removed anywhere or that salt or sand had been used. Plaintiff was walking along the roadway portion of the lot toward the Sears store when she fell.

Defendants Prices Corner Shopping Center Merchants Association, Sears, Roebuck and Co., John A. Robbins Co., Inc. a/k/a John Robbins, Ltd., Jardel Co., Inc., and Center Ridge Co. [defendants] have moved for summary judgment. Defendants contend that (1) they had no duty to take protective action; (2) plaintiff was contributorily negligent and (3) plaintiff is barred by assumption of risk.

I

It is undisputed that plaintiff was on the parking lot as a business invitee. Cf. DiSabatino Bros., Inc. v. Baio, Del.Supr., 366 A.2d 508, 510 (1976). One who conducts business owes a duty to those who come to his place to do business to exercise due care to keep the property in a reasonably safe condition as to any condition which is known to the business operator or which should have been known in the exercise of reasonable care or diligence. Howard v. Food Fair Stores, New Castle, Inc., Del.Supr., 201 A.2d 638 (1964). This test allows the operator a reasonable opportunity to correct the condition after discovery or the time when it reasonably should have been discovered. However, it does require reasonable diligence by the business operator. Wilson v. Derrickson, Del.Supr., 175 A.2d 400 (1961).

Under the facts of this case, the snow and ice had accumulated over a period of days and it has not been indicated that additional snow or ice had been added shortly before the fall. Therefore, the duty of defendants is not negated by the lack of reasonable opportunity to make the area reasonably safe. Under the principles stated above, defendants had a duty to keep the premises in reasonably safe condition.

Defendants contend that the duty to keep the premises in a reasonably safe condition is negated by the customer's awareness of the unsafe nature of the premises. Defendants argue that because of the obviousness of the hazards associated with the accumulation of ice and snow and the plaintiff's own testimony that she was aware of the dangerous condition of the parking lot, they had no duty to warn of the danger, and had no duty to make the lot safe for walking. In support of this assertion, defendants rely upon DiSabatino Bros., Inc. v. Baio, Del.Supr., 366 A.2d 508, 510 (1976); Hamm v. Ramunno, Del.Supr., 281 A.2d 601, 603 (1971) and Robelen Piano Co. v. DiFonzo, Del.Supr., 169 A.2d 240 (1961). These cases are not directly on point as they involved a different type of hazard than that which is at issue in this case--the natural accumulation of ice and snow.

The scope of the landowner or occupier's ¹ duty to protect invitees from natural accumulations of ice and snow is the subject of a split of authority among the various state jurisdictions. Prosser and Keeton on Torts, § 61 at 427 (5th Ed.). One view, the so-called "Massachusetts Rule", imposes no duty on the landowner or occupier to remove or take other steps to protect tenants or business invitees from the dangers associated with natural accumulations of ice and snow. This approach traces its origins back to the case of Woods v. Naumkeag Steam Cotton Co., Mass.Super., 134 Mass. 357 (1883), which held that a lessor of apartment-style residential premises had no duty to remove natural accumulations of ice and snow from the common approaches to the tenement. This approach still persists in a number of jurisdictions, and has been recently applied to cases in which the plaintiff was not a tenant of the defendant but was invited to transact some business with the owner or occupier of the premises. See Sherman v. Platte County, Wyo.Supr., 642 P.2d 787 (1982); Brandert v. Scottsbluff Nat. Bank & Trust Co., 194 Neb. 777, 235 N.W.2d 864 (1975); Smalling v. LaSalle Nat. Bank of Chicago, 104 Ill.App.3d 894, 60 Ill.Dec. 671, 433 N.E.2d 713 (1982). The rationale underlying the modern application of the "Massachusetts Rule" is that the landowner or occupier has no duty to protect or warn invitees from known or obvious conditions not caused or created by the landowner or occupier. Sherman, 642 P.2d at 789; Brandert, 235 N.W.2d at 866.

However, a significant number of other jurisdictions apply the so-called "Connecticut Rule", which traces its origins to Reardon v. Shimelman, 102 Conn. 383, 128 A. 705 (1925). This approach which has been described by Prosser as the "growing view", rejects the Massachusetts "no-duty" rule and imposes an affirmative duty upon the landowner or occupier to take reasonable steps to make safe the areas under his control and held open for use by his tenants or business invitees. Prosser and Keaton on Torts, § 61 at 427. The rationale for this approach, as stated by Professor Prosser is that, even though the invitee had knowledge of or had been warned by the landowner or occupier of the hazardous nature of the condition, the landowner or occupier should reasonably anticipate an unreasonable risk of harm to the invitee. Id. This is true:

where the condition is one, such as icy steps, which cannot be negotiated with reasonable safety even though the invitee is fully aware of it, when, because the premises are held open to him for his use, it is to be expected that he will nevertheless proceed to encounter it. Id.

In light of this, the "Connecticut Rule" requires the landowner or occupier to take reasonable steps to make the premises reasonably safe from the hazards associated with natural accumulations of ice and snow for the benefit of business invitees. The "Connecticut Rule" has been recently applied in Geise v. Lee, 84 Wash.2d 866, 529 P.2d 1054 (1975); Quinlivan v. Great A. & P. Tea Co., Inc., 395 Mich. 244, 235 N.W.2d 732 (1975); Hammond v. Allegretti, Ind.Supr., 262 Ind. 82, 311 N.E.2d 821 (1974).

The substance of the "Connecticut Rule" approach has been adopted by the Restatement (Second) of Torts at § 343A. Section 343A provides:

(1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.

Comment (f) to this subsection states that a landowner or occupier should expect a harm to an invitee where:

the possessor has reason to expect that the invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk. In such cases the fact that the danger is known, or is obvious, is important in determining whether the invitee is to be charged with contributory negligence, or assumption of risk. [ ] It is not, however, conclusive in determining the duty of the possessor, or whether he has acted reasonably under the circumstances.

This provision of the Restatement has been applied to natural accumulations of ice and snow in Kremer v. Carr's Food Center, Alaska Supr., 462 P.2d 747 (1969); Dawson v. Payless for Drugs, 248 Or. 334, 433 P.2d 1019 (1967).

In Delaware, only two decisions have addressed this issue in the context of the landlord's duty to protect his tenants from the hazards associated with natural accumulations of ice and snow in the common walkways remaining in the landlord's control. In Young v. Saroukos, Del.Super., 185 A.2d 274 (1962), aff'd. 189 A.2d 437 (1963), the plaintiff, a tenant in a building owned by the defendant, was injured when she fell on the ice-covered entrance ramp to her apartment. After a lengthy discussion of the distinction between the "Massachusetts Rule" and the "Connecticut Rule", the Court stated "I unhesitatingly choose the 'Connecticut Rule' ", holding:

the proper and applicable rule [is] that it is the obligation of the owner of an apartment house to exercise ordinary care to maintain the approaches and other parts of the building under his exclusive control in a reasonably safe condition for the use of tenants and their guests ... all such persons being regarded, while on the common areas, as invitees of the landlord. I regard and hold that the announced rule applies to these common areas so as to require the landlord to render safe or to remove natural or artificial accumulations of snow and ice. Id. at 282.

The Court added the caveat, however, that the landlord is permitted to await the end of the snowfall and may be permitted a reasonable time to clear the walkway. Id.

The holding in Young was followed by the Delaware Supreme Court in Monroe Park Apts. Corp. v. Bennett, Del.Supr., 232 A.2d 105 (1967). In that case, the plaintiff,...