                    IN THE COURT OF APPEALS OF IOWA

                              No. 3-1117 / 13-0691
                              Filed February 5, 2014

KAREN ROCHFORD and JUDE
ROCHFORD,
    Plaintiffs-Appellants,

vs.

G.K. DEVELOPMENT, INC.,
      Defendant-Appellee.
________________________________________________________________

       Appeal from the Iowa District Court for Black Hawk County, Joel A.

Dalrymple, Judge.



       The plaintiffs appeal the district court’s grant of summary judgment to the

defendant asserting an issue of fact exists regarding whether there was a storm

at the time the plaintiff fell on the ice. AFFIRMED.



       Christopher F. O’Donohoe of Elwood, O’Donohoe, Braun & White, New

Hampton, for appellants.

       James W. Bryan of Law Offices of Daniel Hansen, West Des Moines, for

appellee.



       Heard by Danilson, C.J., and Vaitheswaran and Mullins, JJ.
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MULLINS, J.

      Plaintiffs, Karen and Jude Rochford, sued G.K. Development, owner of the

College Square Mall in Cedar Falls, over injuries Karen sustained when she fell

on an icy sidewalk outside the mall.        G.K. Development filed a motion for

summary judgment, asserting it was entitled to await the end of the storm before

it attempted to remove the ice from the sidewalk. The district court agreed and

granted the summary judgment motion. The Rochfords appeal asserting there

remains a question of fact as to whether the weather event was in fact a storm

that would excuse G.K. Development’s failure to remove the ice on the sidewalk.

      The deposition testimony of both Karen and Jude indicated that they

remembered the weather to be cold and drizzly when they entered the mall

around 2:00 p.m. on December 23, 2009. When they left two hours later, Karen

became immediately aware of a change in the weather when the precipitation hit

her in the face, and she noticed it had changed to freezing rain. Karen also

noticed the parking lot had turned slushy. She acknowledged shuffling her feet

to see if the sidewalk was icy when she first exited the mall. Someone had put

pellet ice melt on the sidewalk immediately outside the mall entrance door, so the

sidewalk was not icy in that location. As she walked down the sidewalk toward

her vehicle, the sidewalk sloped down for handicap access approximately forty

feet from the door. She did not see any ice melt on this part of the sidewalk and

knew she had to be more cautious. Karen fell on the slope.

      Karen submitted meteorological data from the date of the fall in her

resistance to the summary judgment motion.          She contends it shows the
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temperature hovered right around thirty degrees, with freezing rain during the

time she and her husband were in the mall. The wind speed was recorded

ranging from twenty to twenty-five miles per hour with gusts recorded up to thirty-

two miles per hour. The total precipitation recorded during this time was around

0.06 of an inch. The data also showed the freezing rain and mist continued until

10:30 p.m. when the temperature rose above freezing and the precipitation

changed to rain.

       In granting the summary judgment motion to G.K. Development, the

district court relied on our supreme court’s decision in Reuter v. Iowa Trust &

Savings Bank, 57 N.W.2d 225, 227 (Iowa 1953), wherein the court approved of

the Virginia court’s adoption of the continuing storm doctrine:

       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, and that ordinary care does not require it.

(citing Walker v. Mem’l Hosp., 45 S.E.2d 898, 902 (Va. 1948)) (internal quotation

marks omitted).

       Karen asserts here, as she did in resistance to the summary judgment

motion, that the weather event that day does not constitute a “storm” as

described in Reuter, 57 N.W.2d at 227. She also contends that the evidence of

ice melt on the sidewalk immediately outside the mall entrance shows that it was

in fact expedient and wholly practical to deice the sidewalks while the weather

event was ongoing. She contends it was improper for the district court to grant
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summary judgment to G.K. Development when these fact issues remain

unresolved.1

       In granting summary judgment the district court stated, in part:

       Although a question of fact exists as to whether a “storm” existed at
       the time of the injury, the Court interprets Reuter and the other
       relevant citations provided as a focus upon weather conditions
       consistent with the accumulation of ice as experienced in this
       instance. The Court finds that the general controlling principle as
       outlined above relating to the weather conditions due to the
       pending storm (a/k/a rain, drizzle, and subsequent accumulation of
       ice) renders it inexpedient and impracticable for the defendant to
       take earlier effective action until the conclusion of the storm and
       that ordinary care does not require it.

The district court appears to have decided as a matter of law that the undisputed

facts of the weather event rendered it inexpedient and impractical for G.K.

Development to have taken action before Karen’s fall to remove the ice from the

sidewalk and that it was not necessary to decide whether the facts fit the

definition of a “storm.”




1
  Karen also asserts that she holds the status of an invitee and is owed the highest duty
of care. The supreme court abolished the distinction in the duty of care owed to invitees
and licensees in Koenig v. Koenig, 766 N.W.2d 635, 643–44 (Iowa 2009). Instead, the
court adopted a multifactor approach that imposes on all owners and occupiers of
property “only the duty to exercise reasonable care in the maintenance of their premises
for the protection of lawful visitors.” Koenig, 766 N.W.2d at 645–46. The court
considers the following factors when evaluating whether reasonable care has been
exercised:
        (1) the foreseeability or possibility of harm; (2) the purpose for which the
        entrant entered the premises; (3) the time, manner, and circumstances
        under which the entrant entered the premises; (4) the use to which the
        premises are put or are expected to be put; (5) the reasonableness of the
        inspection, repair, or warning; (6) the opportunity and ease of repair or
        correction or giving of the warning; and (7) the burden on the land
        occupier and/or community in terms of inconvenience or cost in providing
        adequate protection.
Id. at 646. We therefore reject Karen’s claim that she is owed the “highest” duty of care
and impose on G.K. Development only the duty to exercise reasonable care.
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      In Reuter, the supreme court approved of the district court’s grant of the

defendant landowner’s directed verdict motion. 57 N.W.2d at 228. The plaintiff

had fallen on snow packed stairs about 5 p.m. in the evening. Id. at 226. The

evidence showed the snow started falling in the morning and continued until

sometime after the fall, “gaining in volume as the day progressed.” Id. The court

approved of its previous holding in the Parson v. H.L. Green Co., 10 N.W.2d 40,

42 (Iowa 1943), wherein the court stated: “We cannot say that a failure to follow

and remove immediately every deposit of snow that is brought into a building can

reasonably be held to be a breach of duty which the inviter owes to an invitee

and so constitutes negligence.”

      This doctrine was approved again by the supreme court in Hovden v. City

of Decorah, 155 N.W.2d 534 (Iowa 1968), superseded by statute, 1984 Iowa

Acts ch. 1002, § 1, as recognized in Hopping v. College Block Partners, 599

N.W.2d 703, 705 n.1 (Iowa 1999). There, the plaintiff fell on the city sidewalk

covered in slush and ice. Hovden, 155 N.W.2d at 537. The court noted the

snow started falling the afternoon before the fall, it was snowing off and on the

morning of the fall, and it was still snowing when the plaintiff was taken to the

hospital immediately after her fall. Id. The supreme court concluded the district

court should have granted the defendant’s motion for judgment notwithstanding

the verdict as the evidence was not sufficient to raise a jury question as to the

defendant’s negligence because there was no showing how long the dangerous

sidewalk condition had existed and the evidence showed the city would not have
                                         6



had a reasonable opportunity to remedy the condition due to the continuing

snow. Id. at 538.

       While there is no Iowa case law that addresses how severe or significant

the weather event has to be to qualify as a “storm,” other jurisdictions have

concluded that the continuing storm doctrine—or “storm in progress” doctrine—

“is not limited to situations where blizzard conditions exist; it also applies in

situations where there is some type of less severe, yet still inclement winter

weather.” Glover v. Botsford, 971 N.Y.S.2d 771, 772 (N.Y. App. Div. 2013). In

Convertini v. Stewart’s Ice Cream Co., 743 N.S.Y.2d 782, 783 (N.Y. App. Div.

2002), the court applied the “storm in progress” doctrine to dismiss the plaintiff’s

claim on summary judgment where evidence showed “light freezing rain” fell for

an hour the morning of the fall and had stopped just twenty minutes before

plaintiff fell. The Virginia Supreme Court asserted “a storm does not have to be

‘raging’ in order for a business inviter to wait until the end of the storm before

removing ice and snow.” Amos. v. NationsBank, N.A., 504 S.E.2d 365, 367–68

(Va. 1998) (affirming the setting aside of a jury verdict the despite plaintiff’s

testimony that there was only “light drizzle” at the time of the fall where the

evidence overwhelmingly showed an ongoing ice storm with precipitation falling

and freezing on the ground).

       The evidence here establishes that at the time of the plaintiff’s fall at

around 4:00 p.m. freezing rain was falling and continued falling until around

10:30 p.m. when the temperature rose above freezing.            This freezing rain

resulted in the sidewalks icing over, leading to Karen’s fall. The freezing rain had
                                        7



not stopped before Karen’s fall, so the landlord was not yet under a duty to take

steps to remove the ice. Whatever this “weather event” is called, we find it was

of sufficient significance to qualify for the application of the continuing storm

doctrine.   We affirm the district court’s grant of summary judgment for G.K.

Development as there was no factual issue to present to the jury.            See

Underwood v. Estate of Miller, No. 10-0052, 2010 WL 3503959, at *1 (Iowa Ct.

App. Sept. 9, 2010) (finding the evidence generated a fact question about when

the storm stopped so the case was properly submitted to the jury).

       AFFIRMED.
