                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 14a0379n.06

                                           No. 13-5961


                           UNITED STATES COURT OF APPEALS                              FILED
                                FOR THE SIXTH CIRCUIT                            May 20, 2014
                                                                             DEBORAH S. HUNT, Clerk
LOUIS P. BARBAGLIA, and MARILYN                 )
BARBAGLIA, Individually and as Husband          )
and Wife,                                       )
                                                )
       Plaintiffs-Appellants,                   )
                                                )     ON APPEAL FROM THE UNITED
v.                                              )     STATES DISTRICT COURT FOR THE
                                                )     WESTERN DISTRICT OF TENNESSEE
NONCONNAH HOLDINGS, LLC,                        )
                                                )
       Defendant-Appellee.                      )


       BEFORE: DAUGHTREY, CLAY, and STRANCH, Circuit Judges.

       MARTHA CRAIG DAUGHTREY, Circuit Judge.                   The district court, exercising its

diversity jurisdiction, granted summary judgment to the defendant, Nonconnah Holdings, LLC

(Nonconnah), on a claim alleging that Nonconnah negligently failed to clear ice from a parking

area in a Memphis office park. According to the plaintiffs, Louis and Marilyn Barbaglia, that

failure contributed to Louis slipping on a patch of black ice and severely injuring his right hand,

resulting in medical expenses, lost wages, pain and suffering, disfigurement, loss of enjoyment

of life, and loss of consortium.

       Before this court, the plaintiffs contend that the district court improperly invaded the

province of the jury by reserving to itself the determination of the reasonableness of the

defendant’s actions under the circumstances presented in this litigation. However, courts are not

precluded in all instances from making determinations of reasonableness, especially when
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Barbaglia v. Nonconnah Holdings, LLC

uncontested facts clearly show that the defendant did not breach a duty of care owed to the

plaintiffs. Because no such duty of care was breached in this instance, we affirm the judgment

entered in favor of Nonconnah.


       Louis Barbaglia was employed as an over-the-road truck driver by IKON Office

Solutions, Inc., a supplier of copiers, printers, and other business machines. To complete his

regular route, Barbaglia would leave the St. Louis area near midnight on Mondays, Tuesdays,

Wednesdays, and Thursdays and drive to a Memphis, Tennessee, IKON facility located in the

Nonconnah Corporate Center, a complex comprised of 27 buildings situated on 290 acres. The

building in which IKON’s Memphis office was located was a large U-shaped structure with

sidewalks and entrances on the outside of the U and a parking lot measuring 158,160 square feet

inside that U.


       According to uncontroverted weather data contained in the appellate record, Memphis

received a total of .22 inches (slightly less than one-quarter inch) of precipitation on Sunday,

February 14, 2010. That precipitation started as light rain, but as the air temperature dropped

from 42.8 F at 4:28 p.m. to 32.0 F at 8:05 p.m., the rain changed to light snow. Consequently,

the following morning, Monday, February 15, 2010, the four-person maintenance crew at

Nonconnah Corporate Center arrived at work at 6:00 a.m., two hours before the usual starting

time, and spent a combined 16 man-hours “spread[ing] salt on entryways” throughout the office

park. The maintenance crew did not salt the complex’s parking lots, however, because “it’s not

common practice, within the City of Memphis, to do that [to a] parking lot.”


       On February 15, 2010, Barbaglia arrived at the Memphis facility before the maintenance

crew began spreading any salt around the office park. Even though the IKON parking lot was


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Barbaglia v. Nonconnah Holdings, LLC

not salted, Barbaglia testified in his deposition that he did not recall “seeing any snow or ice,” or

recall the lot “being slippery” or containing “any water.” In fact, he termed his delivery run on

Monday, February 15, 2010, as “just normal.”


       After Barbaglia returned to the St. Louis area later on February 15, the weather service

recorded additional “light” snowfall in the Memphis area between approximately 12:30 p.m. and

2:00 p.m. That precipitation was so light, however, that it failed to measure even one one-

hundredth (0.01) of an inch. No additional precipitation of any kind was recorded in Memphis

on February 16, 2010, but the ambient air temperatures early that morning remained below 32

F, just as they had all day on February 15.


       Despite those wintry conditions, Barbaglia testified that his five-hour drive from the St.

Louis area to Memphis on February 16, 2010, was “more than safe.” Indeed, he claimed that he

“wouldn’t have got there that quickly if it wasn’t.” Moreover, he did not remember seeing any

standing water or snow when he pulled into the brightly lit parking area behind the IKON

offices, nor did he remember his truck slipping or sliding as he came to a stop. As he grabbed

his laptop computer from the seat of the truck’s cab and stepped onto the pavement, however, he

slipped on black ice and, not wanting to drop the laptop, ended up “punch[ing] the asphalt trying

to stop [himself] from hitting the ground.”


       The parties do not dispute that the injuries Louis Barbaglia sustained as a result of the fall

in the parking lot were serious and costly. In fact, the record before us on appeal indicates that,

after Louis obtained worker’s compensation benefits because of the accident, IKON’s insurer

placed a lien on subsequent monetary recoveries by Barbaglia in the following amounts: medical

‒ $95,658.22; indemnity ‒ $34,116.50. Furthermore, the parties do not dispute that Nonconnah


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Barbaglia v. Nonconnah Holdings, LLC

owed Louis Barbaglia a duty of reasonable care to maintain its property in a safe condition.

Indeed, the disagreement between Nonconnah and the Barbaglias centers solely upon the

question of whether a jury should determine in the first instance whether the precautions

undertaken by Nonconnah were, in fact, reasonable under the circumstances.


       In granting summary judgment to Nonconnah, the district court recognized that, although

“questions of reasonableness are typically reserved for the jury,” courts sometimes may “decide

the question of reasonableness on summary judgment.” In Clifford v. Crye-Leike Commercial,

Inc., 213 S.W.3d 849 (Tenn. Ct. App. 2006), for example, the Tennessee Court of Appeals

affirmed a grant of summary judgment to a defendant who failed “to keep [a] ramp clear of snow

or to post warnings of the presence of a wheelchair ramp concealed by the fallen snow.” Id. at

851. The evidence adduced in that case indicated that Emmett Clifford shattered his ankle when

he slipped off the side of a ramp that was obscured by heavy snowfall. Id. at 852. Even though

landowners “are expected to take reasonable steps to remove natural accumulations of snow or

ice within a reasonable time,” id. at 853 (citing Grizzell v. Foxx, 348 S.W.2d 815, 817 (Tenn. Ct.

App. 1960)), the state appellate court recognized that “[d]angerous conditions created by the

natural accumulation of snow or ice are considered to be among the ‘normal hazards of life.’”

Id. (quoting Grizzell, 348 S.W.2d at 817). Consequently, “landowners are not required to keep

their premises free of natural accumulations of snow and ice at all times.” Id. (citations omitted).

In light of the fact that Clifford was injured while a snowstorm continued to rage, the Tennessee

intermediate appellate court concluded that “[t]he difficulty and expense of [the] remedial

measures [that the Cliffords felt the landowner should have undertaken] outweighed the

possibility that a customer, like Mr. Clifford, who decided to brave the winter weather might




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injure himself by slipping on the side of a wheelchair ramp concealed under the fallen snow.”

Id. at 854.


        Likewise, it clearly was not unreasonable in this matter for Nonconnah Holdings to fail to

remove the patch of ice from IKON’s parking area in the early morning hours of February 16,

2010. As noted by the district court, the parties “agree that there had been very little recent

precipitation” prior to the accident, “that Barbaglia did not see or experience any accumulation

when driving onto the parking lot,” “that no party was aware of any dangerous condition before

the accident,” “that Nonconnah was responsible for a large area,” and that the accident occurred

three hours before the maintenance crew normally reported for work. Moreover, no complaints

about the condition or safety of the parking lot had been made to the appropriate individuals, and

Barbaglia himself had made his delivery to IKON’s Memphis office the day prior to his accident

without incident, even though more winter precipitation had fallen the day before that earlier

delivery than the mere trace of light snow that was recorded in the early afternoon hours of

February 15, 2010.         In short, this case presents one of those rare instances in which a

determination of the reasonableness of the defendant’s failure to remedy a winter-weather

condition that is “among the normal hazards of life” can be made confidently without submission

of the matter to a jury.


        The state law applicable to the resolution of this negligence action has been articulated

ably and applied correctly by the district court. The district court also appropriately concluded

that Louis Barbaglia’s injury, in light of the conditions of which Nonconnah was aware, or

reasonably should have been aware, was not foreseeable. However, we find no legitimate

support in the record for the district court’s claim that, “given the large size of the property, the

number of maintenance workers and their typical schedule, it would be prohibitively expensive
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Barbaglia v. Nonconnah Holdings, LLC

for Nonconnah to monitor the condition of all parking lots 24 hours a day.” Indeed, such an

economic analysis is completely unnecessary in this matter, especially given the uncontroverted

evidence that the winter precipitation had not accumulated to any significant degree prior to

Barbaglia’s accident, and that Nonconnah had not observed nor been alerted that any dangerous

condition had manifested itself on its property. Despite the inclusion in the district court order of

that one unnecessary comment, given the remainder of the district court’s cogent analysis, we

conclude that issuance of a full written opinion by this court would be duplicative and would

serve no useful precedential purpose. We therefore AFFIRM the judgment of the district court

for the reasons set forth in the district judge’s order of summary judgment filed on June 17,

2013, with the single exception we have noted.




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