        IN THE SUPREME COURT OF THE STATE OF DELAWARE

MICHAEL LAINE,                              §
                                            §     No. 149, 2017
            Plaintiff-Below,                §
            Appellant,                      §     Court Below: Superior Court
                                            §     of the State of Delaware
       v.                                   §
                                            §     C.A. No.: K15C-12-008
SPEEDWAY, LLC,                              §
                                            §
            Defendant-Below,                §
            Appellee.                       §


                               Submitted: October 25, 2017
                                Decided: January 8, 2018

Before STRINE, Chief Justice; VALIHURA, VAUGHN, SEITZ, and
TRAYNOR, Justices, constituting the Court en Banc.

Upon appeal from the Superior Court. AFFIRMED.



Nicholas H. Rodriguez, Esquire, Schmittinger & Rodriguez, P.A., Dover, Delaware,
for Appellant, Michael Laine.

Jessica L. Tyler, Esquire, and Sarah B. Cole, Esquire (Argued), Marshall, Dennehey,
Warner, Coleman & Goggin, Wilmington, Delaware, for Appellee, Speedway, LLC.




VAUGHN, Justice:
      The Plaintiff/Appellant, Michael Laine, slipped and fell on ice near a gas

pump on the premises of a convenience store-gasoline station operated by the

Defendant/Appellee, Speedway, LLC (“Speedway”) in Dover. He was the driver

of a Modern Maturity Center shuttle bus and slipped when he stepped off the shuttle

to fill its tank with gasoline. The fall caused him to sustain serious physical injuries.

The ice was caused by a light, freezing rain which was then falling. Mr. Laine filed

suit against Speedway, alleging that negligence on Speedway’s part was the

proximate cause of his injuries. The Superior Court granted summary judgment for

Speedway, holding that under the continuing storm doctrine Speedway was

permitted to wait until the freezing rain had ended and a reasonable time thereafter

before clearing ice from its gasoline station surface. There are two questions on

appeal. The first is whether a business owner that remains open during a winter

storm should be able to avail itself of the continuing storm doctrine at all, that is;

whether we should continue to recognize the doctrine. The second is whether the

continuing storm doctrine applies to the facts of this case. For the reasons which

follow, we have concluded that the continuing storm doctrine should continue to be

recognized and that it does apply to the facts of this case. The Superior Court is

affirmed.




                                            1
                                          I

      On January 10, 2014, Speedway’s convenience store-gasoline station in

Dover opened at 6:00 a.m. Two employees were on hand, Jessica Lorilla and John

Tetuan.

      According to weather records, rain was falling at 6:54 a.m.       The previous

weather reading was taken at 6:20 a.m. and did not show rain falling. Therefore, it

can be inferred that rain began falling sometime between 6:20 a.m. and 6:54 a.m.

The temperature when those readings were taken was 32 degrees Fahrenheit.         The

rain was a freezing rain which continued throughout the day.

      At 7:00 a.m. Ms. Lorilla slipped on ice outside the front door of the

convenience store.    She notified Mr. Tetuan, who was to call the ice and snow

removal company used by Speedway.        Ms. Lorilla worked until 11:00 a.m. or 1:00

p.m. and has no recollection of the ice and snow removal company being there, but

there is a record of an invoice from the company for work done sometime that day.

The two employees took no further steps concerning ice outside the store.

      Meanwhile, at 7:05 a.m. Mr. Laine, a shuttle bus driver for Modern Maturity

Center, began driving a shuttle bus from the Center to Speedway’s gasoline station.

In his deposition, Mr. Laine testified that he recalled that the roads from the Modern




                                          2
Maturity Center to Speedway’s property were wet, and a light rain or drizzle was

falling. After stopping the shuttle bus at a gas pump at Speedway’s gas station, Mr.

Laine stepped out, slipped on ice and fell. It is undisputed that the ice upon which

Mr. Laine slipped was caused by the rain freezing upon contact with the gasoline

station surface.

      Another customer reported Mr. Laine’s fall to Ms. Lorilla and she came out

to assist him.     An incident report prepared that day records Mr. Laine’s fall as

occurring at 7:15 a.m.    Mr. Laine carried out his Modern Maturity Center duties for

the rest of that day but later began to feel pain. Ultimately, it was determined that

the fall caused him to suffer serious physical injuries, and he has not been able to

return to work.

      Schools remained open that day, and there is no evidence of businesses

closing.

      Mr. Laine filed suit against Speedway, alleging negligence on its part for

failure to maintain the premises in a reasonably safe condition, failure to make

reasonable inspections of the premises, failure to warn him of the hazardous

conditions that existed, and failure to remove ice at the pump where he fell.

Speedway filed a motion for summary judgment, arguing that under the continuing




                                           3
storm doctrine it was permitted to wait until the freezing rain ended and a reasonable

time thereafter before removing the ice from its premises.               The Superior Court

granted the motion, finding that the continuing storm doctrine was a valid defense

to Mr. Laine’s claims of negligence. This appeal followed.

                                               II

       AThis Court reviews de novo the Superior Court=s grant or denial of summary

judgment >to determine whether, viewing the facts in the light most favorable to the

nonmoving party, the moving party has demonstrated that there are no material

issues of fact in dispute and that the moving party is entitled to judgment as a matter

of law.=@1

                                              III

       Generally, a landowner has a duty to exercise reasonable care in keeping its

premises safe for the benefit of business invitees. 2 This includes keeping the

premises reasonably safe from natural accumulations of ice and snow.3 In Young v.

Saroukos, the Superior Court recognized that the landowner’s duty to keep its




1
  Brown v. United Water Del., Inc., 3 A.3d 272, 275 (Del. 2010) (quoting Estate of Rae v. Murphy,
956 A.2d 1266, 1269–70 (Del. 2008)).
2
  Hamm v. Ramunno, 281 A.2d 601, 603 (Del. 1971).
3
  Monroe Park Apts., Corp. v. Bennett, 232 A.2d 105, 108 (Del. 1967).




                                                4
premises reasonably safe from natural accumulations of ice and snow was subject to

a rule known as the continuing storm or storm in progress doctrine.4

         In Young, the plaintiff slipped on ice and snow about 9:30 p.m. on March 4,

1960 while proceeding down a ramp entrance toward the door of her basement

apartment. Seven or eight inches of snow fell on March 3 and March 4, with snow

flurries continuing late into the evening of March 4. The weather conditions on

March 4 were cold and windy, and snow was drifting. After considering authorities

from other jurisdictions, the Superior Court adopted the continuing storm doctrine,

stating:

         The authorities are in substantial accord in support of the rule that a
         business establishment, landlord, carrier, or other inviter, in the absence
         of unusual circumstances, is permitted to await the end of the storm and
         a reasonable time thereafter to remove ice and snow from an outdoor
         entrance walk, platform, or steps. The general controlling principle is
         that changing conditions due to the pending storm render it inexpedient
         and impracticable to take earlier effective action . . . .5

         Under the continuing storm doctrine, it is reasonable for a business owner to

wait until a storm has ended and a reasonable time thereafter to remove natural

accumulations of ice and snow in the absence of unusual circumstances. The




4
    Young v. Saroukos, 185 A.2d 274 (Del. Super. Ct. 1962).
5
    Id. at 165 (quoting Walker v. Memorial Hospital, 45 S.E.2d 898, 902 (Va. 1948)).




                                                 5
rationale for the rule, as stated in Young, is that it is “inexpedient and impracticable

to take earlier effective action.”6

       Since Young, the Superior Court has discussed the continuing storm doctrine

in a number of cases. In Woods v. Prices Corner Shopping Center Merchants

Ass’n, the plaintiff slipped and fell on ice and snow in the parking lot of the Prices

Corner Shopping Center. 7 It snowed three times in the week before her fall.

Temperatures were in the 0 to 10 degrees Fahrenheit range. No effort had been

made to remove ice and snow. In denying a defense motion for summary judgment,

the court held that a business owner’s duty to keep its business premises safe

includes keeping the premises safe from natural accumulations of ice and snow, that

the owner is entitled to wait until the end of a snow storm and a reasonable time

thereafter to remove ice and snow, and that the reasonableness of any delay should

be treated as any question of fact.

       In Kovach v. Brandywine Innkeepers, Ltd. P’shp, the plaintiff slipped on an

icy, snowy surface in the defendant’s parking lot during a snow storm. 8 The

Superior Court granted summary judgment for the defendant under the continuing



6
  Id.
7
  Woods v. Prices Corner Shopping Center Merchants Ass’n, 541 A.2d 574 (Del. Super. Ct.
1988).
8
  Kovach v. Brandywine Innkeepers, Ltd. P’shp, 2001 WL 1198944 (Del. Super. Ct. Oct. 1, 2001).




                                              6
storm doctrine. In doing so, the court rejected a contention the defendant assumed

a duty to make the parking lot safe by beginning snow removal operations while the

storm was still in progress.

       In Morris v. Theta Vest, Inc., the plaintiff slipped and fell on ice just outside

his landlord’s business premises. 9 Witnesses described precipitation which was

falling at the time as freezing rain or sleet. It was undisputed that the storm was

ongoing when the plaintiff fell. The Superior Court granted summary judgment for

the defendant under the continuing storm doctrine. The landlord had salted the area

about five or six hours before the plaintiff fell. The court rejected the plaintiff’s

contention that by salting the area, the landlord had assumed a duty to make the

premises safe. Morris was affirmed by this Court on appeal.10

       In Elder v. Dover Downs, Inc., the plaintiff slipped and fell on a patch of ice

which was obscured by snow in a bus stop area in Dover Downs’ parking lot.11 Her

fall occurred at approximately 1:30 p.m. on January 30, 2010. A snow storm began

around 10:00 a.m. on January 30 and lasted until the early morning hours of the next

day. The Superior Court again granted summary judgment for the defendant under




9
   Morris v. Theta Vest, Inc., 2009 WL 693253 (Del. Super. Ct. Mar. 10, 2009).
10
   Morris v. Theta Vest, Inc., 2009 WL 2246777 (Del. Supr.).
11
   Elder v. Dover Downs, Inc., 2012 WL 2553091 (Del. Super. Ct. July 2, 2012).




                                              7
the continuing storm doctrine. The plaintiff argued that it was not snowing when

she fell. The court rejected the contention that a lull interrupted a continuing storm.

         In Schnares v. General Floor Indus., Inc., the plaintiff slipped and fell on ice

in the defendants’ parking lot.12 The Superior Court denied summary judgment for

the defendants on the ground that there was a dispute of fact as to whether the

plaintiff’s fall came before or after the storm involved there began.

         In Demby v. Del. Racing Ass’n, the plaintiff slipped and fell on ice at Delaware

Park on December 14, 2013.13 Weather records indicated that a storm arrived in the

afternoon of December 14, 2013 with weather conditions alternating between light

snow, freezing rain, and heavy rain from 2:40 p.m. through midnight. The plaintiff

fell at 8:41 p.m. A surveillance video showed that freezing rain was falling at the

time the plaintiff fell. The plaintiff argued that the continuing storm doctrine did

not apply because it was not snowing when she fell. The Superior Court rejected

the plaintiff’s contention that the continuing storm doctrine applied only to falling

snow and held that it also applied to ice caused by freezing rain.

         In Cash v. East Coast Prop. Mgmt., Inc., the plaintiff slipped and fell on ice

on a sidewalk at an apartment building.14 The ice was caused by falling rain. The


12
     Schnares v. General Floor Indus., Inc., 2015 WL 5178403 (Del. Super. Ct. Sept. 3, 2015).
13
     Demby v. Delaware Racing Ass’n, 2016 WL 399136 (Del. Super. Ct. Jan. 28, 2016).
14
     Cash v. East Coast Prop. Mgmt., Inc., 2010 WL 2336867 (Del. Super Ct. June 8, 2010).




                                                 8
Superior Court again granted summary judgment for the defendant based on the

continuing storm doctrine. Cash was affirmed by this Court on appeal.15

       These cases illustrate that the continuing storm doctrine has been applied

consistently by the Superior Court since first recognized in Young, and this Court

has affirmed at least two Superior Court decisions granting summary judgment to

the defendant based on the doctrine where the ice was formed by rain or sleet.

There is no contrary Delaware authority. The continuing storm doctrine has been

recognized in many jurisdictions.16

                                                 IV

       Despite the widespread acceptance of the continuing storm doctrine, the

appellant’s first contention is a direct challenge to the continuing storm doctrine.

He contends that when a business decides to remain open during a storm, it should

not be able to avail itself of the continuing storm doctrine. Where a business

decides to remain open during a storm, the appellant argues, its conduct should be

judged by the general rule that a business owner has a duty to keep its premises



15
   Cash v. East Coast Prop. Mgmt., Inc., 2010 WL 4272925 (Del. Supr.).
16
   Kraus v. Newton, 558 A.2d 240, 243–244 (Conn. 1989); Reuter v. Iowa Trust & Sav. Bank, 57
N.W.2d 225, 227 (Iowa 1953); Mattson v. St. Luke’s Hospital of St. Paul, 89 N.W.2d 743, 745
(Minn. 1958); Walker v. Memorial Hospital, 45 S.E.2d 898, 902 (Va. 1948); Agnew v. Dillons,
Inc., 833 P.2d 1049, 1054 (Kan. Ct. App. 1991); Fusco v. Stewart’s Ice Cream Company, 610
N.Y.S.2d 642, 642 (N.Y. App. Div. 1994).




                                             9
reasonably safe for its business invitees. In support of this contention, he argues

that, unlike conditions which existed when Young was decided, we now live in an

era in which commercial and residential property owners contract with companies

that have highly mechanized snow and ice removal equipment. Such companies,

the appellant argues, provide their services based on the weather, so that our ability

to attend work, school, appointments, and recreational functions is rarely delayed.

The appellant also argues that in this particular case, the two employees had a duty

to inspect the premises for icing and a duty to warn customers of the ice through the

use of cones or tape, or by simply deciding not to remain open.

      In the alternative, the appellant argues that extending the continuing storm

doctrine to a rain event is a huge departure from the facts of Young, and the doctrine

should be limited to severe storms like the snow storm in that case.

      If the decision of the Superior Court is allowed to stand, the appellant

contends, two undesirable results will occur. First, any plaintiff injured in any

weather event will not be able to recover for his or her injuries. Second, the

landowner may well be lax in its duty to make safe any dangerous condition on the

land caused by a weather-related event, knowing that if the cause of injury is




                                         10
weather-related, the owner will be relieved of its duty to make the premises

reasonably safe.

       The appellee contends that the Superior Court correctly applied the continuing

storm doctrine.

       As mentioned, the rationale for the continuing storm doctrine rests on the view

that it is reasonable for a landowner to wait until a storm ends and a reasonable time

thereafter before removing accumulations of ice and snow due to the impracticability

or ineffectiveness of continually removing such accumulations while the storm is

still in progress. While the appellant has referred to the availability of modern,

mechanized ice and snow removal equipment, no evidence has been presented

indicating that the rationale for the continuing storm doctrine no longer applies.

There is no evidence before us that Speedway could have effectively removed the

ice from around its gasoline pumps, by some means, while the freezing rain

continued to fall.17 The appellant has not offered any case law holding that the

rationale of the doctrine no longer applies. In the absence of such evidence or such


17
   We realize that Speedway’s snow and ice removal company may not have been able to respond
to Speedway’s location in the relatively short period of time between the onset of the freezing rain
and the appellant’s fall. The Superior Court made no findings on this point and there is no
pertinent evidence on the point in the record. The record is also silent as to whether the two store
employees had any means to attempt ice removal. The Superior Court did not decide the case on
such factors, since they are not part of the continuing storm analysis which the Superior Court
performed.




                                                11
authority, we hold to the view, first expressed in this State in Young, and recognized

by this Court in previous cases, that it is reasonable for a landowner to wait until a

storm ends and a reasonable time thereafter before removing natural accumulations

of ice and snow created by a storm, in the absence of unusual circumstances. We

reject the appellant’s contention that the continuing storm doctrine should not apply

to a business which remains open during a storm.

       Many people who have to travel during weather events benefit from

businesses like gas stations, convenience stores, and pharmacies being open, which

enable them to get fuel, food, and medicine when they may need them without delay.

There is admittedly surface appeal to the argument that if a business is open, it has

to be diligent to make its premises safe. But, situations like this case illustrate the

problem with departing from the traditional rule. Even more than deep snow, a thin

coat of ice can be slippery and hard to eradicate even with salting or chemicals.

Inviting litigation over how often one has to salt or shovel during an active storm

could be costly and lead businesses to shut down, for fear of suits. This could be

detrimental to the many who must travel in active storm situations. 18


18
   The continuing storm doctrine has been thought to address these concerns by alleviating the
concern that the workers of businesses would be forced to engage in clean up at the worst periods
of storms and by alleviating the concerns of business owners that if they stay open during a storm
they will expose themselves to the expense of tort suits over falls that are a natural risk in any
storm situation involving icy or snowy conditions. See, e.g., 3 Premises Liability 3d § 49:16.10




                                               12
       Given that concern, we are reluctant to forsake the continuing storm doctrine,

especially when another factor is considered. In active storm situations, customers

are expected to be aware themselves of the risks of falling and to take care to protect

themselves. They know it could be slippery and must dress and otherwise take the

steps necessary to protect themselves against a potential fall.                    As sad as the

plaintiff’s injuries were, the reality is that there is no foolproof way to avoid the risk

of slipping on ice. Some injuries are not the legal fault of anyone, they just are the

result of the reality that nothing in life is entirely safe, and surely not walking on ice

or snow. That does not mean that these injuries are not important and unfortunate,



(2017 ed.) (“The [storm in progress or continuing storm] defense evolved in recognition of the
realities of problems caused by winter weather, that is, as a common sense rule arising from the
fact that snow and ice conditions are unpredictable, natural hazards against which no one can insure
and which in their nature cannot immediately be alleviated.”) (quoting Hilsman v. Sarwil
Associates, L.P., 786 N.Y.S.2d 225, 226 (App. Div. 2004)); 74 A.L.R.5th 49 (Originally published
in 1999) (discussing liability for parking lot slip-and-fall) (“It is patently unfair to make a
landowner absolutely liable for every slip–and–fall accident on snow in a lot, especially as this
would require the owner to spend the entire winter clearing the lot on pain of losing a liability
suit. Moreover, it is equally unfair to require the lot owner to shoulder the expense of plowing
and replowing the lot during the course of a continuous storm. In this vein, many jurisdictions
have ruled that there is no liability for an accident that takes place while a storm is still going on
or a reasonable time thereafter, to give the owner a chance to clear out the lot.”); Kovach v.
Brandywine Innkeepers Ltd. P’ship, 2001 WL 1198944, at *2 (Del. Super. Ct. Oct. 1, 2001)
(“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 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.”).




                                                 13
but before opening the door to trials about falls during active storms, this court needs

reliable evidence that the existing rule does not strike the optimal balance for all

Delawareans affected by the reality that bad weather happens.

       We also reject the appellant’s contention that the store employees had a duty

to warn customers of ice at the time the appellant fell through the use of cones or

tape. Generally, there is no duty to warn of icy conditions during a storm in

progress.19 The appellant cites no contrary authority.

       We are also unpersuaded that the continuing storm doctrine should be limited

to severe storms such as the one involved in Young. The rationale for the rule rests

upon the existence of a fairly continuous natural accumulation of ice and/or snow

created by ongoing precipitation. The rule does not depend upon whether that

precipitation is in the form of freezing rain, snow, sleet or a combination of all three.

As we have discussed, freezing rain can be one of the trickiest situations to deal with,

and thus we are satisfied that the continuing storm doctrine may apply to freezing




19
   “The continuing storm doctrine suspends a property owner’s general duty to exercise reasonable
care in warning of . . . snow and ice hazards . . . .” Alcala v. Marriott Intern., Inc., 880 N.W.2d
699, 711 (Iowa 2016). See also Walker, 45 S.E.2d at 907; Childs v. Goodland Economy Lodging,
Inc., 2012 WL 2149818, at *3 (Kan. Ct. App. 2012); Wheeler v. Grande’vie Sr. Living Cmty., 31
A.D.3d 992, 993 (N.Y. App. Div. 2006).




                                                14
rain as well as to a snow storm. The result we reach is in accord with authorities in

other jurisdictions.20

       The Superior Court correctly applied the continuing storm doctrine to the facts

of this case, and its judgment is affirmed.




20
   See Kraus, 558 A.2d at 241; Mattson, 89 N.W.2d at 744; FAD Ltd. P’ship, 377 S.E.2d 437, 438
(Va. 1989); Rochford v. G.K. Dev. Inc., 845 N.W.2d 715, 716 (Iowa Ct. App. 2014); Agnew, 822
P.2d at 1051.




                                             15
