Who’s liable for the fall?: A Primer on “natural” Versus “Artificial” Accumulations of snow and ice on Public Areas
The winter of 2012-13 may now seem like a distant memory as summer is in full effect. To the personal injury defense attorneys among us, however, this past winter is sure to live on through pending and future slip and fall cases.
Compared to the winter of 2011-2012 where, for example, Madison and Milwaukee recorded their warmest Marches in history,[i] the winter of 2012-2013 proved to be an-all-too-rude reminder of what Wisconsin winters can be like. From the State of Emergency issued in response to the blizzard of December 20, 2012,[ii] to the May snow storm that landed Ashland with 16 inches of snow,[iii] the winter of 2012-2013 was wet, icy, snowy, and cold. All that snow was great for those concerned with the lingering drought problems in the state,[iv] but it is sure to have attributed, in part, to a number of personal injury accidents.
In Wisconsin, injured plaintiffs who have slipped and fallen on public walkways are commonly confused as to whether they can sue the owner of abutting property.[v] It is especially confusing for the plaintiff when the owner or tenant of the abutting property takes an active role in snow and ice removal. Even seasoned defense attorneys, especially those who regularly handle private property slip and fall cases, may forget that most liability does not rest with the owner or tenant of the abutting property. In most instances, the liability rests with the municipality, which has immunity from liability for three weeks after the accumulation. However, the owner or tenant of the abutting property, and even the municipality, may be liable if the accumulation of snow or ice is artificially rather than naturally created.
Many municipalities across Wisconsin impose some duty on abutting landowners to clear or maintain public ways.[vi] However, many municipal ordinances may not delegate the municipality’s duty to abutting landowners to maintain public sidewalks in a reasonably safe condition.[vii] Ordinances that require property owners to clear abutting public sidewalks from snow and ice are limited to protecting the interests of the community, not its individual members.[viii] When there are such ordinances in place, the only liability of owners whose properties abut public sidewalks is to pay the penalty (usually a fine) prescribed by the ordinance.[ix]
If the accumulation at issue is “natural,” then the ultimate liability for any injury rests with the municipality, which has immunity if the accumulation is less than three weeks old.[x] If, on the other hand, the accumulation is affirmatively created by the acts of some entity (such as a landlord), and is therefore “artificial,” that entity may be liable for any injury caused by such accumulation.[xi] Understanding the distinction between “artificial” and “natural” accumulations of snow or ice is therefore essential to a successful defense, especially because the distinction between “natural” and “artificial” accumulations is a question of law able to be decided on summary judgment.[xii]
“Natural” Versus “Artificial” Accumulations
As anyone who has spent a winter in Wisconsin knows, the accumulation of ice and snow is a natural incident of Wisconsin winters.[xiii] Not only is the accumulation of ice and snow a natural incident, but so too are most of the after effects of efforts to clear that ice and snow. For an accumulation to be considered “artificial,” and for liability to then potentially attach, there must be evidence of (1) something man-made and (2) a defect in the man-made product that diverted the water that caused the condition.[xiv] Wisconsin case law is rich with examples of what accumulations are “natural” versus “artificial.”
Cases Finding “Natural” Accumulations
This section summarizes Wisconsin cases finding the defendant or defendants not liable because the accumulations in question were “natural,” rather than “artificial.” The first case is the Wisconsin Supreme Court's 1956 decision in Walley v. Patake.[xv] In Walley, the plaintiff fell and was injured while walking on a public sidewalk adjacent to the defendants’ apartment building. One of the defendants, Patake, was the caretaker and janitor of the building. Plaintiff claimed that Patake negligently permitted a heavy accumulation of snow and ice to gather for three to four weeks prior to her fall and had also been negligent in partially clearing a small path through the snow. The Wisconsin Supreme Court held that the defendants were not negligent in “permitting the natural accumulation of ice and snow on the sidewalk,” as it was the City’s obligation to clear the walk.[xvi] In addition, the “‘rough, uneven and slippery’ condition of the ice and snow on the walk was not an artificial accumulation.”[xvii]
That was not the end of it, however. The case subsequently returned to the Supreme Court on the Walleys' amended complaint. In its second decision, issued in 1957, the Supreme Court explained how “thawing and freezing” is a natural condition, and that is what caused the snow to become rough, uneven, and slippery.[xviii] The court further noted the important public policy behind not holding persons liable for injuries resulting from natural ice and snow accumulations:
The law is well settled that if the owner or occupant of property does nothing in so far as snowfall is concerned he is not liable to a pedestrian who is injured because thereof. Plaintiffs seek to penalize the good citizens who make an attempt to improve the situation. Their efforts against this common enemy in Wisconsin should be encouraged. Snowfall, with its attendant discomfort, is a small price to pay for the many advantages we enjoy as residents of this state. The only thing we can say with authority about Wisconsin weather is that it changes frequently. As a result, we will have many slippery conditions on sidewalks. Every pedestrian must be conscious of that fact and take due care for his own protection.[xviii]
In Corpron v. Safer Foods, Inc.,[xx] a 1964 decision, the defendants maintained a parking lot at the rear end of their store. Customers who parked in the lot used the public sidewalk on the south wall of the building to reach the store’s entrance. Attached to the south wall was a canopy or ledge that was about 11 feet above the sidewalk and extended out from the wall about two and a half feet. The sidewalk had become slippery with the accumulation of snow and ice, in part because of water dripping down onto the sidewalk from the overhanging canopy. On the day of the incident, plaintiffs had parked in the lot and were on their way to the store entrance. They were on the public sidewalk and beneath the east end of the canopy when they fell and suffered the injuries for which they brought suit.[xxi] The case went to trial and the jury found that the defendants were negligent. After verdict, however, the circuit court changed the jury's answers as to defendants’ negligence from “Yes” to “No” and ordered dismissal of the complaint.[xxii] “Naturally,” the plaintiffs appealed to the Supreme Court.
On appeal, the plaintiffs argued that the accumulation that had caused them to fall was “artificial” rather than “natural” due to water dripping down from the overhanging canopy, and that the store owners could therefore be held liable. The Supreme Court disagreed. Although the canopy was constructed to accumulate and discharge water onto the sidewalk, there was no proof of defective maintenance of the canopy or drain.[xxiii] The court held that it was most likely the large amount of snow that was the culprit for the water dripping over the edge of the canopy,[xxiv] and that defective maintenance could not be “inferred from the mere fact that the water dripped.”[xxv]
In Kobelinski v. Milwaukee & Suburban Transport Corp.,[xxvi] a 1972 decision, the plaintiff was a passenger on a Milwaukee & Suburban Transport Corporation bus. At the bus stop, the City had cleared the first thirty to forty feet of the sidewalk in the bus zone. Beyond that zone, there was a mound of ice and snow, and that is where the plaintiff got off the bus and fell, suffering the injuries giving rise to the lawsuit. Because there was no evidence that the snow and ice accumulation was there for more than three weeks, the City was not automatically liable. Instead, the question of liability turned on whether the accumulation was “natural” or had been artificially created by the actions of the City.
Relying on Walley, the Supreme Court held that the mound, as it was formed, did not constitute an “artificial” accumulation.[xxvii] The City therefore “met its duty to use reasonable care under all circumstances to maintain its sidewalks safe for pedestrian travel” as a matter of law.[xxviii] Of note, the Kobelinski court spent considerable time emphasizing how “municipalities should be encouraged to make every reasonable attempt to clear [their] sidewalks of ice and snow.”[xxix] If clearing part of the walkway could have opened the City up to liability, it would have created a perverse disincentive to clear sidewalks, in that those who attempted to clear sidewalks could be found liable while those who did nothing would have immunity.[xxx]
Gruber v. Village of North Fond Du Lac[xxxi] is a fairly recent decision addressing whether a drainage system created an “artificial” accumulation. In Gruber, the plaintiff slipped and fell on a patch of ice near the driveway/sidewalk area adjacent to a private residence. Over the years, there was evidence of water/snow runoff coming from the adjacent alley and ending up on the sidewalk where it would pool and freeze. The Grubers, on appeal, argued that: (1) the alleyway was part of a drainage design system that was flawed; and (2) even if there was no drainage design system in place, the Village should have known that the elevations and pitches of the streets and alleys created a hazardous condition that needed to be addressed.[xxxii] The court of appeals dismissed the Grubers' claims, holding that there was no record of any man-made drainage system and that the Village was not “duty bound” to provide a proper drainage remedy as “grading, by itself, does not create an artificial condition.”[xxxiii]
Cases Finding “Artificial” Accumulations
This section summarizes Wisconsin cases finding the defendant or defendants liable because the accumulations in question were “artificial,” rather than “natural.” The first case is Laffey v. City of Milwaukee,[xxxiv] a 1958 decision of the Wisconsin Supreme Court. In Laffey, the plaintiff was injured after a fall on an icy sidewalk. The complaint stated that city firemen, in the scope of their employment, had caused water to be discharged on the sidewalk and that the same water then froze. The Supreme Court held that the accumulation was created by the firemen who poured the water on the sidewalk and that the dangerous condition existed when the freezing water was allowed to remain by those in charge of the sidewalks. The plaintiff's claim was therefore allowed to go forward.[xxxv]
The second case is the Wisconsin Supreme Court's 1975 decision in Sambs v. City of Brookfield.[xxxvi] Sambs is one of the seminal cases on the question of what constitutes an “artificial” accumulation. In Sambs, the plaintiff was injured in an automobile accident. Plaintiff sued the City of Brookfield for negligence in the maintenance and repair of the street in question. At trial, evidence was introduced to suggest that the culverts under the driveways along the street were inadequate to handle the flow of water to be expected in the watershed area. The culverts could then be blocked, frozen, and lead to the situation in which water would be prevented from going under the road.[xxxvii] Based upon this evidence, the Supreme Court held that the accumulation was “artificial” because the City failed to provide an adequate drainage system and failed to remedy the defect.[xxxviii] Thus, the plaintiff's claims were allowed to go forward.
A final example of an “artificial” accumulation was dealt with by the Wisconsin Supreme Court in 1953 in Smith v. Congregation of St. Rose. In that case, the court held that an “artificial” condition for which the defendant could be liable was present when defective gutters on a roof caused an accumulation of snow in one spot, which led to it overflowing into a gutter and forming ice on the sidewalk below.[xxxix]
In summary, in most instances an accumulation of snow or ice on a public area will be considered a “natural” accumulation, absolving potential defendants from liability for any injuries that result (except for municipalities that fail to address the accumulation within three weeks). The instances where liability could result are generally limited to when a defective man-made drainage system has created the accumulation, thus resulting in an “artificial” accumulation. The Wisconsin defense practitioner defending slip-and-fall cases will be well-served to recognize the legal distinction between “artificial” and “natural” accumulations of snow and ice, as this distinction presents a question of law that can be decided on summary judgment potentially leading to early dismissal of such claims.
[i] Andrew Freedman, March Heat Wave Shatters Monthly Records, Climate Central (Apr. 3, 2012), available at http://www.climatecentral.org/blogs/march-heat-wave-shatters-monthly-records. [ii] Bill Novak, Some schools already closing as state of emergency declared, The Capital Times (Dec. 19, 2012, 7:30 p.m.), available at http://host.madison.com/news/local/education/local_schools/some-schools-already-closing-as-state-of-emergency-declared/article_eef715bc-4a00-11e2-a456-0019bb2963f4.html.
[iii] Steve Karnowski, Upper Midwest Schoolchildren Get Rare May Snow Day, AP (May 2, 2013, 7:28 p.m.), available at http://bigstory.ap.org/article/upper-midwest-schoolchildren-get-rare-may-snow-day.
[iv] Drought over in southern Wisconsin: National Weather Service expects sufficient moisture for growing season, Channel 3000 (Mar. 22, 2013, 10:07 a.m.), available at http://www.channel3000.com/weather/Drought-over-in-southern-Wisconsin/-/1636/19424628/-/2oo7iz/-/index.html.
[v] Holschbach v. Washington Park Manor, 2005 WI App 55, ¶ 1, 280 Wis. 2d 264, 694 N.W.2d 492.
[vi] See, e.g., Madison Ordinance 10.28(1); Milwaukee Ordinance 116-8.
[vii] Hagerty v. Village of Bruce, 82 Wis. 2d 208, 218, 262 N.W.2d 102 (1978).
[ix] Walley v. Patake, 271 Wis. 530, 535, 74 N.W.2d 130 (1956).
[x] Wis. Stat. § 893.83.
[xi] See Corpron v. Safer Foods, Inc., 22 Wis. 2d 478, 484, 126 N.W.2d 14 (1964).
[xii] Gruber v. Village of North Fond Du Lac, 2003 WI App 217, ¶ 3, 267 Wis. 2d 368, 671 N.W.2d 692.
[xiii] Stippich v. City of Milwaukee, 34 Wis. 2d 260, 268-69, 149 N.W.2d 618 (1967).
[xiv] Gruber, 267 Wis. 2d 368, ¶ 20.
[xv] 271 Wis. 530.
[xvi] Id. at 541.
[xviii] Walley v. Patake, 274 Wis. 580, 585, 80 N.W.2d 916 (1957).
[xix] Id. at 585.
[xx] 22 Wis. 2d 478, 126 N.W.2d 14 (1964).
[xxii] Id. at 480.
[xxiii] Id. at 485.
[xxvi] 56 Wis. 2d 504, 202 N.W.2d 415 (1972).
[xxvii] Id. at 515.
[xxviii] Id. at 516-17.
[xxix] Id. at 515.
[xxx] Id. at 516.
[xxxi] 2003 WI App 217, 267 Wis. 2d 368, 671 N.W.2d 692.
[xxxii] Id., ¶ 16.
[xxxiii] Id., ¶¶ 21-22, 24.
[xxxiv] 4 Wis. 2d 111, 89 N.W.2d 801 (1958).
[xxxv] Id. at 117.
[xxxvi] 66 Wis. 2d 296, 224 N.W.2d 582 (1975).
[xxxviii] Id. at 306.
[xxxix] Smith v. Congregation of St. Rose, 265 Wis. 393, 400-01, 61 N.W.2d 896 (1953), overruled in part by Widell v. Holy Trinity Catholic Church, 19 Wis. 2d 648, 657, 121 N.W.2d 249 (1963).