CHECK MUNICIPAL LAW, BEFORE YOU PROCLAIM OHIO LAW PROVIDES NO DUTY TO REMOVE ICE AND SNOW
August 17, 2015
It is not surprising that in Ohio, we have a lot of “ice and snow cases”, because… we get a lot of ice and snow. I know, the nerve of me to bring this up in August, but the recent Ohio Court of Claims case, Scolaro v Ohio University (Case No. 2015-00304-August 11, 2015) reminds us that: 1) odds are good that it will snow again in a few months; and 2) there are exceptions to the “no duty to remove natural accumulation of ice and snow, general rule.”
The leading case of the “no duty to remove natural accumulation of ice and snow general rule” is Brinkman v. Ross, 68 Ohio St.3d 82 (1993). In Brinkman, the Ohio Supreme Court held: the “homeowner has no common-law duty to remove or make less hazardous natural accumulation of ice and snow on private sidewalks or walkways on homeowner’s premises, or to warn those who enter upon premises of inherent dangers presented by natural accumulations of ice and snow, regardless of whether the entrant is a social guest or business invitee.”
In the Brinkman case, the Brinkmans were invited to the Ross home during the winter. The Rosses knew that the sidewalk into the house was covered by a sheet of ice, which in turn was covered by snow, but never warned the Brinkmans. While walking on the sidewalk between the driveway and the Ross home, Carol Brinkman slipped on the snow-covered ice and fell, sustaining serious injuries. Ms. Brinkman sued and lost at the trial court stage, but appealed that decision. The court of appeals in Brinkman agreed with the plaintiff who admitted the snow/ice had accumulated naturally, but claimed the Rosses had a duty to disclose the dangerous situation that they knew about. The Ohio Supreme Court reversed the decision of the appellate court on the basis of law, and common sense, as if to say: “Who does not know that snow and ice are slippery?” Actually, the Ohio Supreme Court put it more eloquently, by stating: “As a matter of law, the guest is charged with sufficient knowledge of the hazards to be required to protect herself against falls.“
While the rule of law in Brinkman seems clear, judicial decisions are no different than the seemingly clear wishes of Aladdin’s genie which came with a few “exceptions, provisos and quid pro quos.” The case in Scolaro reiterates the “statutory law exception” to the “no duty to remove snow and ice general rule” in Ohio. Basically, in cases where a municipality or local government has a law requiring snow and ice removal, there is a statutory duty to remove, failing which will render the offender negligent per se (a basic legal principle basically holding that violation of a criminal law that assesses penalties = negligence).
In Scolaro, Hannah Scolaro of Akron sued Ohio University in the Ohio Court of Claims after she fell on the ice (on a campus bus-stop sidewalk) and damaged her front teeth, resulting in root canals, crowns and other dental work totaling approximately $3,000. Scolaro claimed the school was negligent for failing to remove snow and ice on its sidewalks, and asked the court to make the school pay for her dental bill. Apparently, other sidewalks on campus had been salted, but not the bus-stop sidewalk.
The Ohio University claimed Scolaro should have been aware of weather hazards and taken better precautions. Legally, the university relied on the Ross decision. Scolaro argued that the school should have done a better job protecting the safety of its students, especially when there is a law requiring them to do so. The Court of Claims agreed with Scolaro. According to the court, “While Ross remains the law in Ohio, there is an exception. Ross is limited in cases where a municipality or local government has enacted a safety statute requiring snow and ice removal. Athens, where OU is located, is one of these municipalities.”
What is the moral of this story? When it snows again, don’t forget the exceptions, provisos and quid pro quos to the “no duty to remove accumulations of ice and snow general rule” of Ross v Brinkman. Basically, they are: 1) the statutory law exception of Scolaro v Ohio University; 2) a lease or other contract may create a duty/obligation to remove ice and snow; 3) if you undertake to remove snow/ice, you can be held liable if you do so negligently, or in a way that makes the area more hazardous than it had been without your efforts at snow removal; and 4) you may be held liable for unnatural accumulations of ice which result, for example from the negligent design of a parking lot (See Cain v. McKee Door Sales, 2013-Ohio-4217).