IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
MARLENA L. DAY,

Plaintiff,
C.A. No. Nl 5C-06-277 AML
v.

WILCOX LANDSCAPING, INC.,
CARROW CONSTRUCTION, LLC and
SLEEPY HOLLOW LAWN CARE &
LANDSCAPING, INC.,

TRIAL BY JURY DEMANDED

Defendants,

\/\/\/\/\/V\/\/\/\/\/\/V

Submitted: November 1 8, 2016
Decided: February 28, 2017

ORDER
Defendants’ Motions for Summary Judgment: GRANTED
l. A common law rule in Delaware, known as the “continuing storm
doctrine” and consistently applied over the last five decades, is that landowners act
with reasonable care when they await the end of a storm before undertaking to
remove snow and ice from their property. The plaintiff in this action was injured
at her place of employment when she slipped on ice during a storm. In an effort to
avoid what appears to be a straightforward application of the continuing storm
doctrine, the plaintiff advances various theories that fundamentally are at odds with

the doctrine and the public policy underlying it. In a nutshell, the question before

the Court is this: does the continuing storm doctrine apply even when a landowner
retains a third party to clear snow and ice from the property? For the reasons that
follow, I conclude the doctrine applies, and l therefore grant the defendants’
motions for summary judgment
FACTUAL BACKGROUND

2. Except as otherwise noted, the following facts are not disputed. In
October 2013, Sallie Mae, lnc. (“Sallie Mae”) hired Defendant Wilcox
Landscaping, lnc. (“Wilcox”) to provide snow and ice removal services at Sallie
Mae’s Newark facility between November 2013 and April 2014.1 Under Sallie
Mae’s contract with Wilcox, Wilcox was to clear snow and ice at a contractual
rate, including removing snow “from the roadways and parking lots [consisting] of
plowing, clearing, and salting these areas to allow tenants to exit from the
property.”2 WilcoX in turn relied on its own independent contractors, Defendants
Carrow Construction, LLC (“Carrow”) and Sleepy Hollow Lawn Care &
Landscaping, lnc. (“Sleepy Hollow,” and together with WilcoX and Carrow, the
‘FDefendants”), to provide snow and ice removal as directed by Wilcox for certain

of Wilcox’s clients. Specifically, Sleepy Hollow agreed to provide snow removal

 

l Pl.’s Resp. Br. EX. F.
2 Id. at 11 3.

services for Wilcox’s accounts as directed by Wilcox, and Carrow similarly agreed
to provide plowing, snow removal, and salting services as directed by Wilcox.3

3. The plaintiff, Marlena L. Day, was a Sallie Mae employee working at
the company’s Newark office building on January 2l, 2014. That day, a winter
storm began shortly after 9:00 a.m., bringing light-to-moderate snowfall to the area
that continued through the day and into that night.4 Ms. Day arrived at work
shortly after 8:00 a.m. According to an expert retained by the Defendants, no snow
or ice was present on the ground before the storm began that morning.5 By ll:30
a.m., there was between a half-inch to one inch of snow on the ground.6 The storm
ended just before midnight, with approximately ll inches of snow accumulating7

4. In the late morning, Ms. Day decided to drive home before the
weather and driving conditions worsened.8 When Ms. Day walked outside, it was
snowing, and the sidewalks around the building had been salted.9 When she

reached the parking lot, Ms. Day saw what appeared to be a sheet of ice.10 Having

 

3 Sleepy Hollow’s Mot. Summ. J. EX. A; Carrow’s Mot. Summ. J. Ex. A.
4 Sleepy Hollow’s Mot. Summ. J. Ex. C, at 6.

5 Id. Ms. Day has not identified any dispute as to this fact.

6 Id. at 7.

7 Id. ate-1

8 Marlena L. Day Dep. 15, l7, l9.

914 at 18-19, 28, 82.

‘° Id. at 18.

no other way to get to her car, Ms. Day attempted to cross the ice, but fell after a
few steps, injuring her right knee.11

5. Ms. Day filed a complaint against Wilcox alleging that her injuries
proximately were caused by Wilcox’s negligence in failing to (i) maintain the
premises in a safe condition, (ii) inspect the premises for dangerous conditions,
(iii) warn others of dangerous conditions that existed, and (iv) otherwise exercise
reasonable care in discharging its contractual responsibility to clear the parking lot
of snow and ice.12 Ms. Day later amended her complaint to add Carrow and
Sleepy Hollow as defendants There is evidence from which a fact-finder
reasonably could conclude that both Carrow and Sleepy Hollow worked at the
Sallie Mae premises that day at Wilcox’s direction. There is some dispute in the
record regarding whether Sleepy Hollow or Carrow was responsible for plowing
the lot.13 lt is undisputed that no salt was applied to the Sallie Mae parking lot
until after the snow stopped and the parking lot was plowed completely.14 All
parties agree that both Sleepy Hollow and Carrow acted under Wilcox’s oversight

and that it was Wilcox who determined when to apply salt to the parking lot.15

 

11 Id. at 18-20.

12 D.I. 1.

13 See Pl.’s Resp. Br. 9-10.

14 winia.m shetzler, Jr. Dep. 46-47.
15 1a at 47.

6. After discovery concluded, all three Defendants moved for summary
judgment on the basis that the continuing storm doctrine precludes any finding that
they breached a duty to Ms. Day. The parties briefed and argued those motions.
ANALYSIS

7. Summary judgment should be awarded if “the pleadings, depositions,
answers to interrogatories and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.”16 The question of whether a
defendant owes a legal duty is a question of law that may be resolved on summary
judgment,17 Although determining whether a duty is breached often is a factual
question, there are circumstances under which a court may determine as a matter of
law that no breach occurred.18

8. When considering a motion for summary judgment, the evidence and
the inferences drawn from the evidence are to be viewed in the light most
favorable to the nonmoving party.19 The Court will accept “as established all
undisputed factual assertions . . . and accept the non-movant’s version of any

disputed facts. From those accepted facts[,] the [C]ourt will draw all rational

 

16 Super. Ct. Civ. R. 56(c).

17 Handler Corp. v. Tlapechco, 901 A.2d 737, 748-49 (Del. 2006).

18 Elder v. Dover Downs, 2012 WL 2553091, at *2 (Del. Super. July 2, 2012).

19 Brzoska v. Olson, 668 A.2d 1355, 1364 (Del. 1995); Judah v. Del. Trust Co., 378 A.2d 624,
632 (Del. 1977).

”20 A party seeking summary

inferences which favor the non-moving party.
judgment bears the initial burden of showing that no genuine issue of material fact
exists.21 lf the movant makes such a showing, the burden then shifts to the
nonmoving party to submit sufficient evidence to show that a genuine factual issue,
material to the outcome of the case, precludes judgment before trial.22

9. The Defendants contend summary judgment is appropriate here
because the continuing storm doctrine precludes any finding that the Defendants
failed to act with reasonable care at the time Ms. Day was injured. Ms. Day
presents a number of arguments in opposition to the motions, which generally may
be summarized as follows: (1) the continuing storm doctrine does not apply to
independent contractors and should not be extended in that manner; (2) even if the
doctrine applies to independent contractors, Wilcox assumed a contractual duty to
maintain safe premises through snow and ice removal and those contractual duties
define Wilcox’s duties under tort law; (3) the Restatement (Second) of Torts §
324A imposes duties on the Defendants that they violated; and (4) Wilcox violated
its duty to act with reasonable care by failing to prepare for the storm by pre-

treating Sallie Mae’s parking lot and sidewalks. In essence, each of these

arguments repackages the same contention: the Defendants owed duties to take

 

20 Marro v. Gopez, 1994 WL 45338, at *1 (Del. Super. Jan 18, 1994) (citing Merrz`ll v. Crothall-
Am., lnc., 606 A.2d 96, 99-100 (Del. 1992)).

21 Moore v. Sizemore, 405 A.2d 679, 680-81 (Del. 1979).

22 Id.; see also Brzoska, 668 A.2d at 1363.

action before and during the storm and failed to discharge those duties. As
explained below, l conclude Delaware law precludes such a finding and therefore
grant the Defendants’ motions.
A. The continuing storm doctrine and independent contractors

10. Ms. Day first argues that the Defendants failed to exercise reasonable
care in discharging their duty to clear the Sallie Mae property of natural
accumulations of snow and ice. The landowner or occupant of a business property
has a duty under Delaware law to “exercise reasonable care to keep the premises
safe for all business invitees.”23 Where a dangerous condition exists on the land,
which a landowner knows exists or upon reasonable inspection would discover, the
owner has a duty to make that condition safe.24 A landowner’s duties in this regard
apply to weather-related conditions, such that the landowner must “keep the
premises reasonably safe from the hazards associated with natural accumulations
of ice and snow.”25

11. Under settled Delaware law, however, the continuing storm doctrine

provides that, in the absence of unusual circumstances, a landowner is permitted to

await the end of a storm and a reasonable time thereafter to remove snow and ice

 

23 Cash v. E. Coast Prop. Mgmt., Inc., 2010 WL 2336867, at *2 (Del. Super. June 8, 2010)
(citing Hamm v. Ramurmo, 281 A.2d 601, 603 (Del. 1971)).

24 Hamm, 281 A.2d at 603.

25 Woods v. Prices Corner Shopping Ctr. Merch. Ass’n., 541 A.2d 574, 577 (Del. Super. 1988).

7

from his property.26 That doctrine, first adopted in Delaware in Young v.
Saroukos,27 consistently has been applied by Delaware courts for several decades
to preclude any finding of liability for landowners on whose property someone is
injured while a storm is ongoing28 The doctrine provides that a landowner does
not breach his duty to act with reasonable care by waiting until the conclusion of a
storm before beginning snow and ice removal efforts.29

12. In applying the continuing storm doctrine, Delaware courts also have
held that a landowner who undertakes to clear public areas of snow or ice while the
storm is ongoing does not lose the benefit of the doctrine and those efforts, even if
unsuccessful, do not subject a landowner to liability.30 As this Court reasoned in

Kovach v. Brana'ywine ]nnkeepers, L.P., it would contravene public policy to

 

26 Young v. Saroukos, 185 A.2d 274, 282 (Del. super. oct. 24, 1962); Elder, 2012 wL 2553091,
at * 2.

27 185 A.2d 274, 282 (Del. Super. Oct. 24, 1962).

28 See, e.g. Elder v. Dover Downs, 2012 WL 2553091 (holding the defendant acted reasonably as
a matter of law by waiting until storm ended before clearing property of snow and ice); Cash,
2010 WL 2336867 (granting summary judgment to defendants where plaintiff fell on ice that
accumulated while storm was ongoing), ajj"’d 7 A.3d 484 (Del. Oct. 29, 2010) (TABLE); Morris
v. Theta Vest, lnc., 2009 WL 693253 (Del. Super. Mar. 10, 2009), ajj"d 2009 WL 2246777 (Del.
2009) (concluding landowner acted reasonably as a matter of law by waiting until a storm ended
before completely clearing entrances); Kovach v. Brandywine Innkeepers, Ltd. P ’ship, 2001 WL
1198944 (Del. Super. Oct. 1, 2001).

29 The Delaware cases applying the continuing storm doctrine refer interchangeably to a finding
that no duty exists while a storm is ongoing and a finding that the duty to act with reasonable
care was not breached. Although the distinction often is immaterial for purposes of applying the
doctrine, in my view the better analysis is that a landowner’s duty always exists, but that
“reasonable care” does not require a landowner to clear the premises of ice and snow until a
reasonable period after the storm ends. See Elder, 2012 WL 2553091, at *3-4; Kovach, 2001
1198944 at *2.

30 Morris, 2009 wL 693253 at *2; Kovach, 2001 wL 1198944, at *2.

8

conclude landowners assumed a higher duty by attempting to remove snow and ice
before a storm ended.
Landowners should be encouraged to try to clear all public areas of
snow and ice during and after snowstorms, if possible. Landowners
should not fear legal liability for not clearing every inch of their
property during an all-day snowstorm if they attempt to clear some
public areas of snow . . . . To hold otherwise would be a disincentive
to vigilant efforts by landowners to monitor and clear snow during
snowstorms. Every landowner would choose to wait out a snowstorm

rather than clear a path for fear of legal jeopardy. Such a fear would
be a grave detriment to the public.31

13. Ms. Day acknowledges this general law, but argues the Defendants
are not entitled to summary judgment on the basis of the continuing storm doctrine
because they are not landowners but rather independent contractors retained by the
landowner. This argument fails to recognize the basis for the rule and the policy
underlying it. The continuing storm doctrine provides that a landowner, charged
with undertaking reasonable efforts to remove ice and snow from property, acts
reasonably by waiting to begin such efforts until a storm concludes, and that even
voluntarily undertaking such efforts during the storm does not alter the doctrine’s
application. The doctrine is intended not only to shield landowners from
repeatedly subjecting themselves to the elements and dangerous conditions in order
to clear property, but also to encourage landowners to make an effort to clear

public areas during a storm without fear of incurring liability where there

 

31 Kovach, 2001 wL 1198944 at *2.

otherwise would be none.32 In contrast, Ms. Day’s argument would create an
inconsistent application of the reasonable care standard under which landowners
who undertake their own snow and ice removal efforts act reasonably by waiting to
do so until the end of a storm, but third parties retained to perform the work on
landowners’ behalf face potential liability by waiting or by engaging in incomplete
or unsuccessful clean-up efforts during the storm, Ms. Day offers no reasoned
argument supporting such a distinction, nor is any apparent to me. The conclusion
Ms. Day champions would contravene the intent of the continuing storm doctrine
and likely would chill the willingness of contractors to undertake clean-up efforts
during a storm. That result would be neither in the interest of the public nor
consistent with the purpose of the doctrine.

14. Ms. Day’s argument that the doctrine should not extend to
independent contractors also is inconsistent with binding case law applying the
doctrine to third parties retained by a landowner. In Cash, this Court applied the
doctrine to both the landowner and a third party retained by the landowner to

. . . 3 . .
engage 1n snow and 1ce removal services.3 That dec1s10n was affirmed on appeal

 

32 See Young, 185 A.2d at 282; Cash, 2010 WL 2336867; Elder, 2012 WL 2553091.

33 Cash, 2010 WL 2336867. Ms. Day argues Cash is distinguishable because the third party in
question in Cash was a maintenance company in an agency relationship with the property owner.
While arguing that the principal-agent relationship is distinct from that involving an independent
contractor, Ms. Day does not explain why that distinction should alter the analysis regarding
whether the continuing storm doctrine applies. As explained above, the reason for the doctrine
and the public policy supporting it render immaterial the distinction Ms. Day draws.

10

by the Delaware Supreme Court and is supported by both logic and public policy.34
Under the continuing storm doctrine, the Defendants did not breach their duty to
Ms. Day as a matter of law.
B. The significance of the contracts

15. Ms. Day next argues that, even if the continuing storm doctrine
applies to independent contractors, Wilcox nevertheless owed Ms. Day a duty
under the contract between Wilcox and Sallie Mae. Ms. Day points specifically to
the language in the contract requiring Wilcox to clear parking lots and roadways to
allow tenants to exit those areas. This argument is a slightly reworked version of
Ms. Day’s position that the continuing storm doctrine does not apply to
independent contractors and it fails for largely the same reasons. By concluding
that third parties hired by landowners are covered by the continuing storm doctrine,
the Court, consistent with the decision in Cash, effectively has concluded that third
parties are entitled to await the end of the storm before discharging their
contractual duty to clear the property, and that voluntarily undertaking efforts to
clear property before the storm ends should not subject a landowner or their
contractor to liability. Indeed, the only duty the Defendants owed to Ms. Day was
one arising from the contract; they had no common law duty to undertake efforts to

clear the property either during or before the storm. Accordingly, Ms. Day’s

 

24 Cash, 7 A.3d 484.

11

attempt to draw a distinction between the Defendants’ common law duty and their
contractual duty is unconvincing
C. The effect of Restatement Section 324A
16. Ms. Day further attempts to distinguish her case from a
straightforward application of the continuing storm doctrine by arguing that the
Restatement (Second) of Torts § 324A creates a new or heightened duty owed by
the Defendants under the circumstances of this case. That Section provides, in
pertinent part:
One who undertakes, gratuitously or for consideration, to render
services to another which he should recognize as necessary for the
protection of a third person or his things, is subject to liability to the

third person for physical harm resulting from his failure to exercise
reasonable care to protect his undertaking, if

(a) his failure to exercise reasonable care increases the risk of such
harm, or

>l< >l= >l<

(c) the harm is suffered because of reliance of the other or the third
person upon the undertaking35

17. Again, Ms. Day’s reliance on Section 324A to circumvent the
continuing storm doctrine ignores the nature of that doctrine. Section 324A is
premised on a failure to exercise reasonable care. The continuing storm doctrine
provides that a person who owes a duty to remove accumulations of snow and ice

from property acts with reasonable care by waiting until the end of a storm to do so

 

35 Restatement (Second) of Torts § 324(A) (1965) (emphasis added).

12

or by making incomplete efforts to clear the property during the storm. That is, as
a matter of law in Delaware, the Defendants acted with reasonable care by
beginning their snow removal efforts during the storm, even if those efforts were
ineffective or may have contributed to Ms. Day’s accident.

18. Ms. Day’s remaining arguments are unmoving. She contends that,
even if the continuing storm doctrine applies, the Defendants acted negligently by
failing to undertake pre-storm efforts to treat Sallie Mae’s parking lot to prevent
the accumulation of snow and ice. Ms. Day can point to no common law doctrine
requiring a landowner to take “reasonable” efforts to prevent snow or ice from
accumulating. The continuing storm doctrine provides that it is reasonable to wait
a reasonable time after a storm ends before removing snow and ice; finding that a
landowner nonetheless must make efforts to prevent the accumulation of snow and
ice would swallow the rule. Even if, however, the Court concluded that a
landowner owed such a duty, nothing in Sallie Mae’s contract with Wilcox
provided or even permitted Wilcox to undertake pre-storm efforts. Because the
Defendants owed no duties to Ms. Day outside those undertaken in the contract,
her argument about pre-storm efforts is a non sequitur. Similarly, l find
unconvincing Ms. Day’s contention that “public policy dictates that Wilcox be
held accountable for failing to fulfill its obligations under the Sallie Mae contract”

because Wilcox “was paid to perform a service” and should not be permitted to

13

“escape its contractual responsibilities by simply arguing that it was snowing.” To
the contrary, for the reasons explained above, the purpose of the continuing storm
doctrine and the policy behind it strongly support its application in this case.

For the foregoing reasons, the Defendants’ Motions for Summary Judgment

are GRANTED. IT IS SO ORDERED.

 

Abig l M`"LeGrow, u@lge]

Original to Prothonotary

cc: Joseph J. Rhoades, Esquire
Christopher T. Logullo, Esquire
Colin M. Shalk, Esquire
Susan List Hauske, Esquire

14

