Released for Publication April 14, 2014.
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.
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.
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 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, 244 Iowa 939, 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 ...