Slip and fall on ice

If the snow or ice is visible to a casual observer there is not case against the property owner, and everyone has a duty to watch where they step. Even if the ice cannoit be seen, the property owner must somehow be on notice that it is there to be held responsible for slip and fall injury. In the following case, the lawyer did not present the appropriate evidence.

The court concluded that the evidence created a fact question as to whether an average person of ordinary intelligence would have been able to discover the danger (ice in a parking lot) and risk upon casual inspection. However, the court agreed with the defendant that the plaintiff failed to present any evidence that defendant had actual or constructive notice of the icy condition. Thus, the court reversed the trial court's order denying defendant's summary disposition motion and remanded for entry of summary disposition in defendant's favor. Plaintiff was employed by a contractor to defendant and worked the night shift (11:00 PM to 7:00 AM) on defendant's premises. On 12/12/07, as part of his usual practice when arriving for work, he parked his car in the first parking spot in the first row because the building parking lot was empty at night. "After parking, plaintiff walked diagonally across the parking lot directly to the rear entrance of the building. He did not see or encounter any ice or slippery conditions on his way to the building." About two hours after arriving for work, he left the building either to smoke a cigarette or for something to do with his lunch pail (which he kept in his car). While he was walking back to the building, he slipped and fell to the ground. He was still in the parking lot, somewhere between 10 to 15 feet from his car. "Only after falling did plaintiff feel ‘wet and ice' and realize that he had slipped on ice." While the defendant argued on appeal that it was not liable for any of plaintiff's injuries because there was no question of fact that the danger was open and obvious, the court disagreed. Only two witnesses testified as to the patch of ice. "Both witnesses agreed that the parking lot was free from snow. Plaintiff testified that he did not see the ice even though he had walked through that same area at least twice earlier that night." A security employee of defendant (D) "testified that he saw the ice patch 'as we were walking out there' when plaintiff was leading him to the ice." However, the court noted that D "was walking out to the parking lot with the sole purpose of investigating plaintiff's reported fall." Thus, looking at D's testimony in a light most favorable to plaintiff, it was easy to conclude that D "was not merely casually, or in an offhand manner, inspecting the premises - instead, a logical inference is that he was actively looking for ice to see what caused plaintiff's fall." The court could not conclude that defendant was entitled to summary disposition on the basis the hazard was open and obvious. However, as to notice, while plaintiff tried to show that (1) defendant negligently caused the formation of the ice patch by the way it salts the parking lots and (2) the sheer size of the patch (8 to 10 feet) was enough to put it on notice, the court found both arguments unpersuasive. The driver who applies salt to the lots admitted that his method of salting when the lot is full of cars prevented the immediate areas on the sides of the parked vehicles from receiving any salt. However, the record showed that after snow fell on the afternoon of 12/11/07, the contractor salted the aisles of the full parking lot and returned later that night when the lot was empty to fully plow and salt the entire lot. Plaintiff also failed to show that the ice formed in a spot that normally would be unsalted during a daytime salting. As to the size of the patch, since no one knew how long it was present, there was no evidence that defendant or its salting contractor had actual or constructive notice of the ice patch.