                      IN THE COURT OF APPEALS OF IOWA

                                      No. 13-1667
                               Filed December 24, 2014

LELINE C. WAILES,
     Plaintiff-Appellant,

vs.

HY-VEE, INC. and DEREK WEBB,
d/b/a WEBB SNOW REMOVAL,

     Defendants-Appellees.
________________________________________________________________

        Appeal from the Iowa District Court for Polk County, Douglas F. Staskal,

Judge.



        Plaintiff   appeals   judgment   dismissing   her   personal   injury   claim.

AFFIRMED.



        John J. Gajdel, Urbandale, for appellant.

        Kermit B. Anderson of Finley, Alt, Smith, Scharnberg, Craig, Hilmes &

Gaffney, P.C., Des Moines, for appellee Hy-Vee, Inc.

        Clark I. Mitchell of Grefe & Sidney, P.L.C., Des Moines, for appellee Derek

Webb.



        Considered by Vaitheswaran, P.J., and Doyle and McDonald, JJ.
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MCDONALD, J.

       Leline Wailes sued Hy-Vee, Inc., and Derek Webb d/b/a Webb Snow

Removal after Wailes slipped and fell in the parking lot of a Hy-Vee store on a

snowy day. Hy-Vee had contracted with Webb to perform snow removal services

at the premises. The jury found the defendants not at fault, and the district court

entered judgment on the verdict. Wailes filed a motion for new trial, arguing (1)

the district court abused its discretion in excluding evidence regarding the

defendants’ post-fall use of ice melt and post-fall snow removal efforts and (2)

the district court erred in instructing the jury on the “continuing storm” doctrine.

The district court denied the motion, and Wailes appealed.         Our review of a

district court’s denial of a motion for new trial is based on the grounds asserted in

the motion. See Clinton Physical Therapy Servs., P.C. v. John Deere Health

Care, Inc., 714 N.W.2d 603, 609 (Iowa 2006).

                                         I.

       We first address the evidentiary issue. The district court sustained Hy-

Vee and Webb’s motions in limine to exclude evidence that sand and salt were

applied to the parking lot after Wailes fell and to exclude evidence that Webb

began to push the snow away from the store after Wailes fell. Wailes contends

the district court abused its discretion in excluding the evidence. Hy-Vee and

Webb contend the issue is not preserved for review.

       Generally, we review a district court’s evidentiary rulings for an abuse of

discretion. See Hall v. Jennie Edmundson Mem’l Hosp., 812 N.W.2d 681, 685

(Iowa 2012). However, a “ruling sustaining a motion in limine is generally not an
                                          3



evidentiary ruling.” Quad City Bank & Trust v. Jim Kircher & Assoc., P.C., 804

N.W.2d 83, 89-91 (Iowa 2011). “Rather, a ruling sustaining a motion in limine

simply adds a procedural step to the introduction of allegedly objectionable

evidence.” Id.

       Generally, the district court’s ruling on a motion in limine is not subject to

appellate review because the error, if any, occurs when the evidence is offered at

trial and is either admitted or refused. See id. Thus, “error claimed in a court’s

ruling on a motion in limine is waived unless” the error is preserved at trial when

the evidence is offered. See State v. Alberts, 722 N.W.2d 402, 406 (Iowa 2006).

There is an exception to this general rule, however. When the court’s ruling on a

motion in limine is unequivocal and leaves no question that the challenged

evidence will or will not be admitted at trial, counsel need not take steps at trial to

preserve error. See id. Where the district court’s ruling on a motion in limine is

unequivocal, “the decision on the motion has the effect of [an evidentiary] ruling”

and thus preserves the issue for appellate review. State v. Tangie, 616 N.W.2d

564, 569 (Iowa 2000).

       We conclude Wailes failed to preserve error. Wailes did not offer the

evidence at trial and thus never obtained an “evidentiary ruling” on the

admissibility of the challenged evidence. The exception to the general rule is not

applicable here because the district court’s ruling on the motions in limine was

equivocal. In granting the motions, the district court stated “things can change at

trial,” and “I could change my ruling.” The court further stated “if it changes

during trial, then I’ll revisit it.” Accordingly, error was not preserved. See Holst v.
                                          4



Countryside Enters., Inc., 14 F.3d 1319, 1323 (8th Cir. 1994) (holding that a party

failed to preserve error by not pursuing a ruling at trial where the court’s motion in

limine ruling invited the party to attempt to admit the evidence during trial); see

also State v. Frazier, 559 N.W.2d 34, 39 (Iowa Ct. App. 1996) (finding error not

preserved when court granted continuance to allow additional investigation, yet

the challenged evidence was not offered at trial); State v. Delaney, 526 N.W.2d

170, 177 (Iowa Ct. App. 1994) (finding error not preserved when opposing party

did not renew objection to proffered evidence at trial); State v. Griffey, 457

N.W.2d 13, 16 (Iowa Ct. App. 1990) (finding error not preserved when no offer of

proof made at trial).

                                         II.

       We next address the jury instruction issue. Wailes contends the district

court erred in overruling her objection to the last paragraph of Instruction 12. The

instruction provides:

               Land owners and occupiers and those whom they employ on
       their behalf owe a duty to exercise reasonable care in the
       maintenance of their premises for the protection of lawful visitors.
       You may consider the following factors in evaluating whether the
       defendants have exercised reasonable care for the protection of
       lawful visitors:
               1. The foreseeability or possibility of harm;
               2. The purpose for which the visitor entered the premises;
               3. The time, manner, and circumstances under which the
               visitor entered the premises;
               4. The use to which the premises are put or are expected to
               be put; and
               5. Any other factor shown by the evidence bearing on this
               question.
               One of the plaintiff’s witnesses expressed an opinion that the
       defendants should have cleared the parking lot of snow by an
       earlier time on the day that the plaintiff fell. The law in Iowa is that
       property owners are permitted to wait until the end of a storm and a
                                          5



         reasonable time thereafter to remove snow and ice from their
         premises.

“We review challenges to jury instructions for correction of errors at law. The

court is required to give a jury instruction requested by a party if the proposed

instruction states a correct rule of law, applies to the facts of the case, and is not

embodied in other instructions.” Gamerdinger v. Schaefer, 603 N.W.2d 590, 595

(Iowa 1999). Instructional error requires reversal if the error resulted in prejudice

to the complaining party.     See State v. Spates, 779 N.W.2d 700, 775 (Iowa

2010).

         The parties agree the challenged instruction correctly states the law

regarding the continuing storm doctrine. See Reuter v. Iowa Trust & Sav. Bank,

57 N.W.2d 225, 227 (Iowa 1953) (holding a business owner “is permitted to await

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

and the “general controlling principle is that changing conditions due to the

pending storm render it inexpedient and impractical to take earlier effective

action, and that ordinary care does not require it”); Rochford v. G.K. Dev., Inc.,

845 N.W.2d 715, 718 (Iowa Ct. App. 2014) (holding landlord was not liable as a

matter of law for failing to take steps to remove ice because freezing rain had not

stopped prior to time of fall); Underwood v. Estate of Miller, No. 10-0052, 2010

WL 3503959, at *1 (Iowa Ct. App. Sept. 9, 2010) (noting Reuter expressed an

exception to the general duty to exercise reasonable care). The parties disagree

on the issue of whether the instruction applies to the facts of this case.

         As relevant here, the record shows it snowed throughout the night of

December 23 continuing throughout the day of December 24. Wailes met her
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husband for breakfast at Hy-Vee at approximately 7:00 a.m. on the morning of

December 24. After finishing breakfast and doing some shopping, Wailes left the

store at approximately 8:05 a.m. It was still snowing at the time Wailes exited the

store. Webb started clearing snow and ice from the parking lot at approximately

5:30 a.m. on December 24 and was still working on premises at the time Wailes

exited the store. Webb used a truck and plow to clear the parking lot. The truck

and plow left ridges of snow in the parking lot due to snow falling off the edge of

the plow blade. Wailes slipped and fell while stepping over a snow ridge in the

parking lot.

       Wailes argues the continuing storm instruction is inapplicable to these

facts because her claim rests on the manner in which the defendants removed

snow and ice from the parking lot and not on their failure to timely remove snow

and ice prior to the end of the weather event. She compares this case to our

good Samaritan cases, which hold that a good Samaritan has no duty to act but

does have a duty to use due care once deciding to act. See Manley v. Janssen,

213 N.W.2d 693, 696 (Iowa 1973) (noting the good Samaritan’s “good intentions

do not relieve him of the obligation to use due care”). Hy-Vee and Webb argue

the continuing storm doctrine precludes liability relating to snow removal efforts

until the end of the weather event as a matter of public policy:

             Plaintiffs are also incorrect in insisting that “even if
       defendant’s duty did not arise until the end of the snowfall they
       assumed a higher duty by undertaking to remove and clear of ice
       and snow the parking lot of the hotel before the snowfall had
       ended.” This argument is illogical and contrary to public-policy.
       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
                                         7



       of their property during an all-day snowstorm if they attempt to clear
       some public areas of snow during a snowfall. 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.
               . . . [L]andowners who attempt to clear some areas of their
       property while it is still snowing should not be penalized for doing
       so, nor should they lose the benefit of being able to wait out the end
       of the snowstorm before they must take steps to make their entire
       premises reasonably safe from snow and ice.

Kovach v. Brandywine Innkeepers Ltd. P’ship., No. CIV.A. 98-01-232JEB, 2001

WL 1198944, *2 (Del. Super. 2001).

       Hy-Vee and Webb misstate the scope of the continuing storm doctrine.

The continuing storm doctrine holds the failure to remove the natural

accumulation of snow and ice prior to the cessation of the weather event giving

rise to such accumulation of snow and ice is not a breach of the duty of ordinary

care, as a matter of law, and is thus not negligent, as a matter of law. See

Cranshaw v. Cumberland Farms, Inc., 613 F. Supp. 2d 147, 149 (D. Mass. 2009)

(stating “a property owner is generally not liable for injuries caused by the natural

accumulation of snow or ice”). The doctrine further holds that the failure to clear

the natural accumulation of snow and ice prior to the cessation of the weather

giving rise to such accumulation is not a breach of the duty of ordinary care even

where the party voluntarily has undertaken snow removal efforts prior to the end

of the weather event. See Cranshaw, 613 F. Supp. 2d at 149 (“Nor does liability

arise merely because a property owner removes a portion of snow or ice but fails

to remove or treat the remaining natural accumulation.”); Avalos v. Pulte Home

Corp., 474 F. Supp. 2d 961, 970 (N.D. Ill. 2007) (stating that “simply removing
                                         8



snow leaving a natural ice formation underneath does not constitute

negligence”); Wheeler v. Grande’Vie Sr. Living Cmty., 819 N.Y.S.2d 188, 189

(N.Y. App. Div. 2006) (“[T]he mere failure to remove all snow and ice from a

sidewalk or parking lot does not constitute negligence and does not constitute

creation of a hazard.”).

       While the continuing storm doctrine holds there is no breach of duty for

failing to clear the natural accumulation of snow until a reasonable time after the

cessation of the weather event, “liability may result if the efforts [the party] did

take created a hazardous condition or exacerbated the natural hazards created

by the storm.” Wheeler, 819 N.Y.S.2d at 188. This is consistent with the general

rule that an actor ordinarily has a duty to exercise reasonable care when the

actor’s conduct creates a risk of physical harm. See Thompson v. Kaczinski, 774

N.W.2d 829, 835 (Iowa 2009) (adopting Restatement (Third) of Torts § 7(a) that

an “actor ordinarily has a duty to exercise reasonable care when the actor’s

conduct creates a risk of physical harm”); see also Van Fossen v. MidAm.

Energy Co., 777 N.W.2d 689, 696 (Iowa 2009) (recognizing adoption of

Restatement (Third) of Torts § 7(a)); Hill v. Damm, 804 N.W.2d 95, 99 (Iowa Ct.

App. 2011) (quoting Restatement (Third) of Torts § 3 and stating a person “acts

negligently if the person does not exercise reasonable care under all the

circumstances”); see generally Avalos, 474 F. Supp. 2d at 970 (“[A] landowner

does not have a duty to remove natural accumulations of snow and ice, but the

landowner who voluntarily removes snow or ice negligently may be subject to

liability.”). The cases on which the defendants rely—Kovach, Locke v. Happy
                                        9



Chef, No. 98-2121, 1999 WL 1020728 (Iowa Ct. App. Nov. 10, 1999), and

Mattson v. St. Luke’s Hosp., 89 N.W.2d 743 (Minn. 1958)—do not hold to the

contrary.   They simply articulate the general rule discussed above—the

defendant shall not be liable for failing to remove the natural accumulation of ice

and snow during a weather event merely because the defendant had voluntarily

started snow removal efforts prior to cessation of the weather event.

      Although Hy-Vee and Webb misstate the scope of the continuing storm

doctrine, the district court did not err in giving the requested instruction. The

record shows the district court correctly concluded the continuing storm

instruction was inapplicable to the facts of this case to the extent that Wailes

challenged only the manner of snow removal. The district court subsequently

concluded, however, Wailes did not limit her claim to the manner of snow

removal.    Instead, she challenged the timing of the snow and ice removal.

During trial, Wailes elicited testimony from her expert witness that the natural

accumulation of snow and ice nearest the store “needs to be clear from snow

and ice early on.” On direct examination, the expert testified de-icers should

have been used at 5:30 in the morning to clear the sidewalks and the area in

front of the store.   On cross-examination, Wailes’s expert testified the snow

should have been cleared by 6:30 a.m. on December 24. Thus, although Wailes

contends her claim was based only on the manner of snow and ice removal, it is

clear she also based her claim on the timing of such removal. The continuing

storm doctrine holds there was no duty for defendants to begin snow removal

prior to the cessation of the snow event on December 24. The doctrine was thus
                                         10



applicable to the facts of this case, and the district court did not err in giving the

requested instruction.

                                         III.

       For the foregoing reasons, the judgment of the district court is affirmed.

       AFFIRMED.
