‘Black Ice’ Slip & Fall Goes to Jury

A Food Lion customer who slipped on black ice near the store entrance after a store manager allegedly had observed icy spots in the parking lot several hours earlier may take her slip-and-fall case to the jury, as a Roanoke U.S. District Court says the store and its snow-removal contractor have failed to show an open and obvious hazard or plaintiff’s contributory negligence.

The 58-year-old plaintiff fractured her pelvis and back. Defendants argue that the black ice upon which plaintiff slipped was an open and obvious hazard as a matter of law because she voluntarily stepped on what she believed was water even though the temperature was below freezing, she had lived in Roanoke her entire life and was aware that snow could melt and re-freeze, and she saw snow piles around the light poles.

Based on the inconclusiveness of the case law and compelling arguments made by each side, the court concludes that reasonable minds can differ as to whether the hazard was open and obvious. This question is one for the jury to decide.

The court also cannot conclude that plaintiff was contributorily negligent as a matter of law. On one hand, she saw the snow piles in the parking lot that day, had lived in Roanoke her entire life and was aware that snow and ice could melt and re-freeze, and voluntarily stepped in what appeared to be water. In fact, defendant Food Lion contends the crux of this issue is whether it was reasonable for plaintiff to step in what she thought was water on Dec. 30, 2009. On the other hand, plaintiff patronized Food Lion almost two weeks after the a large snowstorm, she had no snow at her home, the weather was sunny and clear, and the parking lot appeared to be in passable condition. Further, invitees like plaintiff have a right to assume the premises are reasonably safe for the purpose for which they are invited. The question of whether plaintiff acted reasonably under the circumstances thus depends on the reasonable safety of the premises and whether defendants exercised ordinary care. While defendants present compelling evidence from which a jury could conclude that plaintiff was contributorily negligent, the court cannot determine at this time that plaintiff was contributorily negligent as a matter of law.

Plaintiff has presented evidence that the grocery manager in charge of the story on the morning of her fall saw ice in the general vicinity of the parking lot where she fell when he opened the store that morning. He saw the ice around the snow pile about four hours before plaintiff fell. After she fell, he inspected the areas where she fell and notice a “small patch of ice which probably was caused due to the melting and refreezing from the pile of snow.” He wrote in the incident report that there was an “area of melting ice” on the surface of the parking lot. While Food Lion claims there is no evidence of actual knowledge attributable to it, the manager’s deposition testimony and the incident report he completed would allow a reasonable jury to conclude that Food Lion had actual notice of the specific unsafe condition that caused plaintiff’s injury.
As for defendant DLC, the snow removal contractor, much of the evidence that the store manager was aware of the ice also shows that a reasonable jury could conclude the contractor possessed constructive knowledge. The manager stated the ice was “noticeable” at 6:45 a.m., about four hours before plaintiff’s fall. Plaintiff has submitted evidence that the contractor should have been more diligent in the inspection and maintenance of the shopping center parking lot, especially after being notified of the poor conditions of the parking lot by store personnel. A reasonable jury could conclude the contractor had constructive notice of the lot’s dangerous conditions.

Food Lion voluntarily undertook on two occasions to clear the common parking lot of snow, it thereafter apparently took no action in maintaining the parking lot for a seven- to 12-day period, the manager saw ice spots the very morning of the accident and took no ameliorative action, the accident occurred directly in front of Food Lion while plaintiff was attempting to enter the store, and a store manager spread Ice Melt on the ice spot after the accident. Based on this evidence, the court concludes a reasonable jury could find that Food Lion assumed the duty of maintaining the common parking lot.

Hall v. DLC Management Corp. and Food Lion LLC (Turk) No. 7:11cv298, April 23, 2013; USDC at Roanoke, Va. VLW 013-3-201, 17 pp.