Plain Dealer, The (Cleveland, OH)

December 29, 2002

To shovel snow or not poses a slippery problem

Author: Armond Budish; Special to The Plain Dealer


Edition: Final
Section: Sunday Life
Page: L4

Article Text:

YOU AND THE LAW

To shovel or not to shovel, that is the question. Lucky for Shakespeare he didn't live in Ohio during the winter. While shoveling your walk or driveway might alleviate a hazard for neighbors and passersby, it might create a legal hazard for you.

Can I be held liable if someone slips and falls on the ice and snow?

In most cases, the answer is no. Let's say you invite friends over to your home for the holidays. As they trudge up your snow-covered driveway, a guest slips and falls.

As long as the snow was a normal accumulation and you did nothing to exacerbate the danger, you should be in the clear. Let's look at one Ohio Supreme Court case.

Richard and Nadine Ross invited Carol and Charles Bankman to visit at their home. The Rosses knew that their walkway was hazardous because of an accumulation of ice and snow, but they failed to shovel or salt the walk. As Carol Bankman approached, she slipped on ice that was concealed by the snow and was seriously injured. She subsequently sued, but her case was thrown out by the trial court.

The 10th Ohio District Court of Appeals (Franklin County) reversed the trial court and reinstated Bankman's case. The appellate court ruled that "when a homeowner knows of a hazardous condition on the homeowner's premises caused by a natural accumulation of ice and snow, and the homeowner expressly invites a social guest to visit . . . the homeowner owes a duty to the guest to take reasonable steps to remove the hazard and to warn the guest of the dangerous condition."

The Ohio Supreme Court reversed the appellate court and agreed with the trial court's dismissal of the case.

The Supreme Court ruled that property owners have no duty "to eliminate natural accumulations of ice and snow from sidewalks" or even to warn of the dangers. The court explained: "Living in Ohio during the winter has its inherent dangers. . . . Perhaps [the Rosses] should have shoveled and salted the sidewalk as a matter of courtesy to their guests. However, we find that Ohio law imposed no such obligation." All of the justices agreed that "everyone is assumed to appreciate the risks associated with natural accumulations of ice and snow and, therefore, everyone is responsible to protect himself or herself."

The court was concerned that any other rule could head us down a slippery slope and lead to an avalanche of lawsuits. "To hold otherwise would subject Ohio homeowners to the perpetual threat of [seasonal] civil liability any time a visitor sets foot on the premises."

Is there any reason not to shovel?

Unfortunately, the answer is yes. The protection from liability applies only to "natural" accumulations of ice and snow. You still might be held liable if your actions create a dangerous "unnatural" situation.

Here's an example: Linda Gober slipped and was injured on the stairs when leaving an Applebee's Neighborhood Grill and Bar in Dayton. Her lawsuit was thrown out by the trial court, but the 2nd Ohio District Court of Appeals (Montgomery County) reinstated her claims based primarily on the testimony of an expert witness.

The expert testified that the concrete surface of the steps "was badly finished, resulting in depressions that allowed precipitation to accumulate or 'puddle' on the steps." The restaurant had brushed the snow to the sides of the steps to let persons pass, but the "probable source of the ice on the step where Gober fell was runoff from the melting of snow piled at the sides of the steps."

Had Applebee's left the snow untouched, in its "natural" condition, it probably would have escaped potential liability.

What if the city requires shoveling?

A number of local communities have passed ordinances requiring property owners to shovel the sidewalk adjacent to their property. If you follow the ordinance and shovel, you could be held liable for slips and falls. If you ignore the city's rules and don't shovel, you could be cited and fined. But at least you would protect yourself from liability.

Budish is a partner in the law firm of Budish & Solomon in Pepper Pike.

To reach Armond Budish:

info@budishandsolomon.com

Copyright, 2002, The Plain Dealer. All Rights Reserved. Used by NewsBank with Permission.
Record Number: MERLIN_2060606