Turmel v. UVM, No. S0980-01 Cncv (Katz, J., Apr. 20, 2004)



[The text of this Vermont trial court opinion is unofficial. It has been
reformatted from the original. The accuracy of the text and the
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STATE OF VERMONT
Chittenden County, ss.:




TURMEL

v.

UNIVERSITY OF VERMONT




                                 ENTRY

       This motion presents us with the question of whether the “Storm in
Progress” Rule applies to premises liability cases in Vermont. On
December 14, 2000, plaintiff Turmel walked on to defendant college’s
campus to pick up his paycheck. (Turmel Dep. at 4, 10.) He noticed that
the snowstorm, which had begun earlier in the day, had made the ground
slushy and wet. (Id. at 21.) The snowstorm continued and worsened
throughout the day. (Id. at 13, 14, 22; Aff. of David Turmel, Mar. 26,
2004, at ¶ 7.) After picking up his paycheck, plaintiff left the building and
used the same crosswalk to leave campus and catch his bus. Id. By this
time, the snow had accumulated further and the temperature was dropping.
(Id. at 22.) As plaintiff reached the end of the crosswalk, he stepped off,
slipped, and fell. (Id. at 9, 22.) Thereafter, plaintiff brought suit against the
college for injuries sustained from the fall.

        Plaintiff’s claims require the determination of the proper duty of care
that the University owed him to keep its premises free of snow and ice. In
Vermont, an owner has a duty to use reasonable diligence to maintain its
property in a reasonably safe and suitable condition. Wakefield v. Tygate
Motel Corp., 161 Vt. 395, 397–98 (1994); McComack v. State, 150 Vt.
443, 445 (1988). As at least one commentator has noted, this standard is
part of a fairly consistent analysis for premise liability in every state:

       Each jurisdiction uses essentially the same principles: (1)
       duty is fashioned on the status of the plaintiff; (2) reasonable
       or ordinary care is expected in keeping premises reasonably
       safe; (3) business owners are not insurers of safety; and (4)
       foreseeability, both in terms of the invitor and invitee’s ability
       to foresee, is a factor when determining duty.

J. Williams, Note, Budzkov v. One City Center Associates Limited
Partnership: Maine’s Unique Approach to Business Owners’ Duty to
Remove Ice and Snow, 55 Me. L. Rev. 517, 519–20 (2003). As a fact
dependant issue, the standard is, in most circumstances for the jury to
decide based on the particular circumstances. See Smith v. Monmaney &
Speno, 127 Vt. 585, 589 (1969); Olejniczak v. E.I. DuPont de Nemours &
Co., 998 F. Supp. 274, 278 (W.D.N.Y. 1998). Factors that tend to
complicate the duty of care and make it such a factual issue include where
the accident occurred, how long the snow or ice had been on the ground,
the amount of foot traffic through the area, and the relationship between the
parties. See generally G. Sarno, Liability for Injuries in Connection with
Ice or Snow on Nonresidential Premises, 95 A.L.R.3d 15 (1979) (dividing
its analysis along time, place, and status lines). Thus different duties may
arise when the accident occurs inside or outside, on steps or on walkways
(covered and uncovered), and to invitees rather than trespassers. Id. But
above all, the time between when snow or ice forms and when the accident
occurs play a critical role in determining an owner’s duty.

        Under this standard of reasonable care, time affects duty because an
owner is only responsible for a hazard of which it is or should be aware.
To the extent that the defendant is a college in Vermont, it must expect that
snow will grace its commons throughout the year. Snow is simply a fact of
life in Vermont. Smith 127 Vt. at 589. But, the fact that snow is an
expected part life in Vermont is a double-edged sword to plaintiff’s case.
To say that the college should have been aware of and dealt with the effects
and dangers of the day’s snow accumulation, because it was foreseeable, is
also to acknowledge that a certain amount of snow and accompanying
danger is to be expected by those walking in around Burlington in winter.
See McCormack, 150 Vt. at 445–46 (affirming defendant’s lack of liability
because conditions, while dangerous, were not constructively known to the
state and did not rise to an acute hazard requiring extraordinary response).
Thus, reasonableness is dependant not on making the premises absolutely
safe or snow free but on the amount of time for notice and the degree of a
storm.

       Time is further complicated when a snowstorm extends over the
period involving the accident. As Vermonters are aware, shoveling out too
early can waste resources and produce no appreciable difference. No court
in Vermont would expect a landlord to shovel her driveway six times a day
just because it kept snowing. Contrapositively, we can say that after the
storm, an owner does have a responsibility to dig out within a reasonable
time. See, e.g., Whitt v. St. John's Episcopal Hosp., 685 N.Y.S.2d 789 (2d
Dep’t 1999). The question then is how long does an owner have before it
must begin to clear its property once a storm has begun. Other states
addressing this issue have developed two concepts. The first, known as the
“Natural Accumulation Rule,” is only followed by two states. Athas v.
United States, 904 F.2d 79, 81 (1st Cir. 1990) (citing Massachusetts law);
Dailey v. Mayo Family Ltd. P’ship, 684 N.E.2d 746, 748 (Ohio Ct. App.
1996). It is an older, harsher rule and states that an owner cannot be held
liable for accidents stemming solely from the natural accumulation of ice
and snow. There must be another causal event—such as a defective gutter
creating an artificial ice patch—before liability as a matter of law can exist.
This Rule has been explicitly rejected by two jurisdictions. Pessagno v.
Euclid Inv. Co., 112 F.2d 577, 579 (D.C. Cir. 1940); Quinlivan v. Great
Atl. & Pac. Tea Co., 235 N.W.2d 732, 740 (Mich. 1975).

       The second doctrine for dealing with the issue of liability for snow
removal during and immediately after a snowfall is the “Storm in Progress
Rule.” This Rule says that an owner may wait until a reasonable time after
a storm to exercise due care by removing the snow and ice. Olejniczak,
998 F. Supp. at 280; Munsil v. United States, 14 F. Supp. 2d 214, 220–21
(D.R.I. 1998). Thus, it is a matter of law that an accident occurring in the
middle of a storm does not impute liability. Notwithstanding any flexibility
in application inherent with any tort doctrine, a majority of jurisdictions1


       1
           By majority, we mean a majority of jurisdiction that have considered the
have enunciated and adopted a relatively uniform version of the Rule.
Olejniczak, 998 F. Supp. at 280 (New York); Phillips v. SuperAmerica
Group, Inc., 852 F. Supp. 504, 506 (N.D. W. Va. 1994); Kraus v. Newton,
558 A.2d 240, 243 (Conn. 1989); Reuter v. Iowa Trust & Sav. Bank, 57
N.W.2d 225, 227 (Iowa 1953); Mattson v. St. Luke's Hosp. of St. Paul, 89
N.W.2d 743, 745 (Minn. 1958); Carter v Davis, 394 P2d 594 (N.M. 1964);
Goodman v. Corn Exch. Nat'l Bank & Trust Co., 200 A. 642, 643 (Pa.
1938); Munsil, 14 F. Supp. 2d at 220–21 (Rhode Island); Walker v. Mem'l
Hosp., 45 S.E.2d 898, 902 (Va. 1948); see also Sinert v. Olympia & York
Dev. Co., 664 A.2d 791, 793 (Conn. App. Ct. 1995) (adding a caveat to the
rule for “unusual circumstances”). These decisions share two underlying
purposes. The first purpose “is that requiring business owners to clear ice
and snow before a storm has ceased would improperly make them insurers
of their invitees’ safety.” Williams, at 522. The second purpose “is that
requiring a business owner to remove snow or ice before a storm has ended
would hold him or her to a standard of care that is not reasonable or
ordinary.” Id. In other words, the Storm in Progress Rule is a legal
mechanism to counterbalance an owner’s duty standing duty of reasonable
care when weather events would otherwise distort it into a “costly and
extraordinary” burden. McCormack, 150 Vt. at 446.

       The only jurisdiction that has explicitly rejected the Storm in
Progress Rule is Maine. Budzko v. One City Center Assoc. Ltd. P’ship,
767 A.2d 310, 315 (Me. 2001). But, upon closer examination, the
reasoning in Budzko proves to be limited to its factual trappings. In
Budzko, defendant, the owner of a large downtown building, leased
commercial spaces to several companies. The accident involved an

issue. Strangely, Hawa’ii, Arizona, and Florida, among others, have remained
silent on this particular problem.
employee of one of the lessees falling down the front stairs of the building
during a mid-day snowstorm. At the trial two critical facts came to light
that became essential to the Maine Supreme Court’s reasoning. Id. at 312.
First, defendant knew that the building had a high volume of foot traffic—
up to 1000 visitors on the staircase— entering and exiting during the work
day. Second, defendant knew that the stairs at the main entrance became
slippery and dangerous as soon as snow or ice fell on them. Id. at 315.
Based on these two facts, the Maine Supreme Court refused to reverse the
finding of negligence by the jury by adopting the Storm in Progress Rule.
Id. The Court did, however, attempt to limit its holding to the immediate
facts:

       The duty to respond may be less rigorous for an entity that
       does not reasonably anticipate the comings and goings of
       significant numbers of invitees while a storm is in progress.
       We do not here address the nature of any duty to remove
       snow and ice during a storm in any case where access by no
       invitees, or very few invitees, may be reasonably anticipated
       during the storm.

Id. at 314 n.2. The result is not too different in substance from the Storm in
Progress Rule. Owners in Maine are still not insurers of their invitees, and
they are still held to a reasonable care standard, which means owners need
not take extraordinary measures to remove all snow and ice the second it
touches ground. Cf. Mattson, 89 N.W.2d at 746–47; Phillips, 852 F. Supp.
at 506. The real differences in Maine’s refusal to adopt the Storm in
Progress Rule is the guarantee that slip and fall cases will almost always be
decided by juries and that owners are left with a nebulous, perpetual
potential for liability without any judicial guidance about the limit of their
duty of care during storms. Williams, at 540–41. Moreover, Maine owners
must speculate whether the holding in Budzko even applies to them. Id.;
Budzko, 767 A.2d at 314 n.2.

        For the case at hand, we can immediately distinguish it from the twin
salient points of Budzko. Instead of the front steps of a busy office
building, plaintiff’s accident occurred on a walkway at the edge of a large
campus. While it is uncertain how many, if any, accidents have occurred
on these walkways, plaintiff has not propounded evidence to support an
inference that they were known to be particularly dangerous during
snowstorms. The difference is critical. If Budzko is to be understood
within the context of snowstorm liability cases, it illustrates an alternative
theory to time-based liability. Instead of granting owners a window of time
to wait for snow or ice to finish accumulating, Budzko holds that certain
areas of high traffic and high danger must be cared for when the owner is
aware that traffic and danger are simultaneously present, regardless of the
weather. Budzko, 767 A.2d at 312–13. This in fact may be read as merely
an exception to the Storm in Progress Rule for unusual circumstances or
extraordinary conditions. See McCormack, 150 Vt. at 446 (suggesting that
the State might have had an elevated duty if there had been abnormal
accumulations); but see Sinert, 664 A.2d at 793 (refusing to extend
Connecticut’s “unusual circumstances” exception to similar facts).

        We cannot say at this time that such events might carve some niche
in the law for such circumstances, and the situation at hand requires no such
determination. Whether we apply the Storm in Progress Rule or look to the
duty of care is of little consequence. The outcome is the same as a matter
of law. College was not an insurer of plaintiff’s safety, and it did not have
an extraordinary duty to plow its walkways the minute a storm started and
continually thereafter. Plaintiff fell in the middle of a snowstorm.
Regardless of what actions the college did or did not take after his fall, it
did not have to plow its campus walkways when the storm was beginning
to increase. Even in a world that includes Budzko, we are prepared to
distinguish uncovered walkways of a college campus, at the end of a
Thursday afternoon, from the main entrance to a busy downtown building,
at mid-day. Niemann v Northwestern College, 389 N.W.2d 260, 261–62
(Minn. App. 1986). Like any Vermont property owner, the college only
had a duty of reasonable care. Plaintiff makes no showing that college
ignored such a duty to him. Instead, he shows that he took the wrong step
at the wrong time. Such things happen in Vermont in winter. Furthermore,
we conclude that the Storm in Progress Rule, which has been implied in
previous Vermont cases, applies. See McCormack, 150 Vt. at 446 (holding
that State’s normal plowing procedures satisfied its duty and did not
include insuring against snow “sloughing off” into the road); Wakefield,
161 Vt. at 398 (refusing to create an affirmative duty for snow removal).

       The final issue raised by plaintiff is whether his fall was caused by
the new snow accumulations or by prior accumulations that were never
removed. This suggests that the college was not necessarily negligent on
the day of the accident but failed to properly remove snow and ice prior to
the day’s immediate accumulation. Plaintiff presents no evidence to
support this assertion other than evidence that it may have been the site of
other slips and was an important site to clear for exiting ambulances that
passed by. To carry a claim of negligent snow removal, however, plaintiff
needs more evidence than a mere assertion. Samplid Enterp., Inc. v. First
Vt. Bank, 165 Vt. 22, 25 (1996). Without more, we will not presume
negligence or allow a jury to speculate. Poplaski v. Lamphere, 152 Vt. 251,
254–55 (1989).
       Based on the foregoing, defendant’s motion for summary judgment
is granted and plaintiff’s claims are dismissed.

      Dated at Burlington, Vermont________________, 2004.




                                       ________________________
                                       Judge
