Snow and ice are obvious hazards, right? Maybe not, when it comes to Virginia slip-and-fall law. Then it’s a case of what did a business owner know, and when did he know it.
A new case from Abingdon federal court has a twist: When it came to icy parking lots, the plaintiff was a professional.
Donald Adkison, who managed a snow removal business, had been on the job for his own commercial customers since 5:00 a.m. on Jan. 20, 2011. When he pulled into the parking lot of the Wolf Hills Shopping Center in Abingdon several hours later, he took a cell-phone call from his young daughter as he stepped out of his Chevy Tahoe. His left foot touched the pavement, then flew out from under him and he struck the running board of the truck, breaking his hip and femur.
When Adkison retrieved his phone from under the truck, he realized he was on a large patch of “black ice” in a parking lot that had not been treated with any salt or other melting chemicals, he alleged. He said it had appeared to be wet asphalt.
The magistrate judge said she could not find that the icy patch was an open and obvious hazard, and recommended denying the defendant’s motion for summary judgment. In her view, Adkison’s general understanding about the risks of icy parking lots didn’t mean he understood the extent of a particular danger at issue. A store manager’s statements that the defendant had been called several times that morning about the condition of the parking lot, and that three people already had fallen, were inadmissible hearsay, the magistrate judge said.
But reasonable jurors could find that the defendant had constructive notice of the condition of the parking lot when Adkison fell, Abingdon U.S. District Magistrate Judge Pamela Sargent said in her July 10 opinion in Adkison v. Ben Frizzell/d/b/a Wolf Hills Shopping Center.
UPDATE: On Aug. 14, Abingdon U.S. District Judge James P. Jones granted summary judgment for the defendant shopping center, saying that what the plaintiff had observed in other locations during his own early-morning experience clearing snow and ice did not impute knowledge to the defenant about the condition of its parking lot. The plaintiff could not slip over the summary-judgment hurdle on evidence of a snowstorm the night before he fell. He knew about the weather conditions, but voluntarily stepped down onto a spot that was an “open and obvious danger,” the court said.