Posted: February 17, 2014
By T. Scott Gilligan, NFDA general counsel
For most of the nation, 2014 has been a recurring cycle of ice, snow, sleet and freezing rain, fueled by an arctic vortex. For funeral homes hosting visitations and funeral ceremonies throughout this winter, the weather has challenged their ability to provide safe passage for family and attendees walking across snow- and ice-covered sidewalks and parking lots. Considering that a single slip-and-fall case can end up costing a property owner hundreds of thousands of dollars, it is important for a funeral home to be aware of its obligations and potential liabilities.
In most jurisdictions, the landowner who invites others to enter its property for the purpose of transacting business has a duty to use "ordinary care and diligence" to keep the premises in a safe condition. Courts in most states have emphasized that property owners are not insurers or guarantors of the safety of invitees. Rather, the duty imposed upon the landowner is to use ordinary care and diligence in removing dangerous conditions and/or warning attendees about dangerous conditions.
For most funeral homes, especially those in the northern part of the country, preparation for each winter include contracting with snow removal services, and laying in a supply of snow blowers, snow shovels and stores of salt. If an attendee to a funeral ceremony slips and is injured, the question for the jury will be whether the funeral home employed "ordinary care and diligence" in removing the ice and snow that caused the fall. Obviously, the principal issue that will be examined by the jury is what steps did the funeral home take to remove ice and snow and when did it take those steps?
Storm in Progress Doctrine
With regard to the issue of when the funeral home removed the ice and snow, one court-created doctrine that is helpful to property owners is the storm-in-progress or the storm doctrine. An overwhelming majority of states have recognized that a property owner has no duty to remove ice or snow while a storm is in progress. In that regard, the following holding of the Virginia Supreme Court Walker v. Memorial Hospital is often cited:
"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 to the pending storm render it inexpedient and impracticable to take early or effective action, and the ordinary care does not require it."
While the above ruling is helpful to property owners, it does not address the question of what constitutes a storm or when does a storm stop. These were the precise issues in an Iowa appeals court decision that was just handed down on February 6, 2014. In that case, a woman entered a shopping mall around 2:00 p.m. when it was cold and dizzily. When she left the mall at 4:00 p.m., the temperature was around 30 degrees with a small spattering of freezing rain. On the way to the parking lot she slipped on an icy handicap access ramp that had not been treated for ice. She sued the mall for her injuries.
The question for the appeals court was whether the spattering of freezing rain constituted a "storm in progress." The court held that the storm in progress doctrine is not limited to situations where blizzard conditions exist. It would cover less severe yet still inclement weather. Indeed, the court cited decisions from other jurisdictions that recognize that a "light drizzle" would constitute a storm in progress. Relying on those rulings, the court found that the mall did not have an obligation to treat the ramp since freezing rain was still in progress.
The storm-in-progress doctrine provides important protection to funeral homes. However, if a visitation or funeral ceremony is occurring at the funeral home while snow or icy rain is falling, the funeral home will still want to take some common sense steps to protect attendees. These may include salting entries and exits, encouraging elderly attendees to be dropped off at the funeral home door, and having personnel in and around the parking lot to assist attendees.
Funeral homes should know whether local ordinances require the removal of snow and what are the time frames under the ordinance. For example, in Chicago, property owners have three hours to remove snow from sidewalks if the snow stops falling before 4:00 p.m. If the snow continues after 4:00 p.m., the property owner has until 10:00 a.m. the following morning to remove snow from sidewalks.
Funeral homes should also be aware of certain danger spots outside of the funeral home and make efforts to address the danger. For example, if a sloping handicap ramp is slippery when covered with ice or snow, it should be salted. Similarly, when gutters are iced over, melting snow from roofs can refreeze during the night and pose black ice problems. Prior to a visitation or funeral ceremony taking place, funeral home personnel should inspect the area and treat any problem areas.
Another important step in protecting against liability is to create a schedule to undertake these protective steps and a log to show when the steps were taken. If an attendee to a visitation slips and falls in the funeral home parking lot, the funeral home may be able to avoid liability if it can show that its personnel inspected the parking lot prior to the visitation and treated slippery areas. A schedule and a log showing these activities may be sufficient to demonstrate that the funeral home employed ordinary care and diligence as the law expects from landowners.
One area of concern for funeral homes is their obligation to clear and/or treat parking lots that are not in use or that are overflow lots. For example, a funeral home with a supplemental lot that is only used for overflow funeral parking, allows shoppers at nearby stores to park in the lot. If a shopper were to be injured because of slippery conditions in the overflow lot, the funeral home could be held responsible. The best protection against liability would be to chain the lot and limit its use to funeral home clientele only. An alternative solution, which still carries some risk, would be to post signs disclaiming any responsibility for the upkeep of the lot, advising shoppers that they are parking at their own risk, and outlawing parking during inclement weather.
It is also prudent to review the funeral home property and casualty insurance coverage with the funeral home's insurance agent. The funeral home may also inquire about an umbrella insurance policy to cover against catastrophic damages. The piece of mind provided by these policies far outweighs their costs.
NFDA members with questions regarding this article may contact General Counsel Scott Gilligan at 513-871-6332.
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