Thursday, April 11, 2024

Summary Judgment Denied in an Alleged Black Ice Slip and Fall Case

In the case of Hicks v. DEPG Stroud Associates, No. 0807-CV-2021 (C.P. Monroe Co. April 2, 2024 Williamson, J.), the court denied a Motion for Summary Judgment in a “black ice” slip and fall case.

According to the Opinion, the Plaintiff pursued this slip and fall litigation against a shopping center owner and its snow removal contractor.

According to the Opinion, it had snowed in the area three (3) days before the incident. The weather on the day of the incident was clear. The record before the court indicated that the snow removal contractor had completed snow removal efforts on the day of the last storm but had not returned to the site as of the day of the incident.

The Plaintiff allegedly slipped and fell on a localized patch of black ice that was near a large snow mound that had been plowed into parking spot. The Plaintiff sustained a primary injury of a broken wrist that required a surgical repair and other treatment.

The Defendants filed a Motion for Summary Judgment asserting that the Defendant was unable to establish that anyone had constructive notice of an alleged transient, isolated patch of black ice. 

The snow removal contractor additionally asserted that there was no causal connection between their work and the Plaintiff’s injuries. 

Judge Williamson noted that, while at first glance, it would appear that the Plaintiff fell on a localized patch of ice that was transient in nature, the deposition of the snow removal contractor’s employee was found to have “complicate[] a seemingly simple matter.” 

The court noted that the contract between the snow removal contractor and the shopping center required that the snow shall be plowed in a workman like manner from all paved areas. 

Accordingly, the court noted that it appeared that the snow removal contractor may have failed to abide by its contractual duties by piling the snow in a paved parking area/parking space. The court pointed to testimony from a representative of the shopping center who testified that it was not appropriate for the snow removal contactor to have piled snow in parking spots. It was also indicated by that representative that the snow removal contractor was never directed to, and never sought permission to, plow snow in the parking spaces. According to that representative, the snow should have instead been plowed into a grassy area outside of the parking lot.

The court noted that the Plaintiff contended that the location of the snow pile made both Defendants allegedly negligent as they should have known that snow melt and refreezing could be a risk for pedestrians in that location.

Given these material issues of fact, the court denied the Motion for Summary Judgment.

The court also addressed the arguments by both Defendants that they did not have any constructive notice that the black ice was present in the parking lot. Judge Williamson noted that black ice cases are not as easily analogous to other constructive notice cases because black ice conditions are very difficult to see as compared to other conditions. The court additionally noted that, under the applicable law, a landowner has the duty to protect an invitee against known dangers and also those dangers which might be discovered with reasonable care.

In this case, the court noted that both Defendants may have lacked constructive notice of any black ice because neither Defendant was regularly visiting the site at the time the Plaintiff fell.

In this regard it was noted by the Court that the snow removal contractor would only come to the premises on an as needed basis and that the Co-Defendant representatives were only sending an individual to check on the site once or twice a month. 

However, the court emphasized that the large snow pile was left on the parking lot surface in a parking space by the Defendants. The court stated that this snow pile would have been an open and obvious condition near the restaurant. It was also noted that the parking lot was sloped such that the snow melt would likely run into the area where other vehicles parked and pedestrians walked as opposed to the snow being kept in a remote location of the parking lot or separately on grass or dirt where it could be kept safely away from pedestrians walking areas.

The court stated that, as such, the Defendants should have been aware that, during winter months, there is a constant threat of melting and refreezing conditions, and that black ice is not a rare occurrence.

In this case, where the experts differed on what was reasonable under the circumstances, the court noted that there were issues of fact that required the case to go to the jury for this additional reason.

Anyone wishing to review a copy of this decision may click this LINK.

Source:  Photo by Egor Kamelev from

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