Falls on Ice and Snow: Ohio's 'Natural Accumulation' Rule and Its Exceptions

Published November 5, 2012 · Injury Law Basics

Winter is coming to the Miami Valley, and with it the calls we get every year: a broken wrist on an apartment walkway, a shattered hip in a grocery store parking lot, a head injury on the steps of an office building. The caller wants to know whether the property owner is responsible. The honest answer is that in Ohio, most falls on ice and snow are not cases, but the ones that are depend almost entirely on what the injured person does in the first few hours.

The general rule: no duty to clear natural ice and snow

Ohio follows what lawyers call the "natural accumulation" rule. A property owner or occupier ordinarily has no duty to remove natural accumulations of ice and snow from the walkways, steps, and parking areas on the property, and no duty to warn visitors about them.

The Supreme Court of Ohio stated the rule flatly in Brinkman v. Ross, 68 Ohio St.3d 82 (1993). A couple invited friends to their home on a February evening; the private sidewalk between the driveway and the house had become icy under a cover of snow; the hosts knew it and did nothing; the guest slipped and was seriously hurt. The Court held that a homeowner has no common-law duty to remove or make less hazardous a natural accumulation of ice and snow, or to warn guests about it. The reasoning was that everyone who lives in Ohio is presumed to know that winter walkways are slippery, so everyone is expected to protect themselves.

The Court was candid that the result was unfortunate, observing that "Living in Ohio during the winter has its inherent dangers." The same rule applies to businesses and their customers, and the Court in Brinkman saw no reason to treat a social guest differently.

The rule is closely related to the "open and obvious" doctrine we discussed in The 'Open and Obvious' Defense in Fall Cases: the danger of ice is treated as something a reasonable person should see and avoid.

The exceptions that make a case

The word doing the work in the rule is "natural." The rule protects owners from liability for what the weather did. It does not protect them from liability for what they did. Over the years Ohio courts have recognized several situations in which a winter fall supports a claim.

1. Unnatural accumulations the owner created

If the ice you fell on was caused by something other than snowfall and freezing temperatures acting alone, the natural-accumulation rule does not apply, and the owner's ordinary duty of reasonable care returns. Common examples:

• Downspouts and gutters that discharge water across a walkway, where it freezes into a sheet of ice on an otherwise clear path.
• Plowed snow piles placed uphill from a sidewalk or parking row, which melt during the day and refreeze across the walking surface at night.
• Leaking pipes, sprinklers, or drains that put water where it would not otherwise be.
• Negligent snow removal that leaves a thin, nearly invisible glaze of ice on a surface that looks cleared and safe.

In these cases the argument is not "you should have shoveled." It is "you built or maintained something that manufactured ice in a place people walk."

2. Accumulations substantially more dangerous than they appear

The Supreme Court's older decisions, discussed in Brinkman, recognize that an owner who knows a natural accumulation has created a condition substantially more dangerous than a visitor would anticipate from the general winter conditions, and does nothing about it, can be liable. The classic example is a deep rut or hole beneath the snow, or black ice in a spot where everything else is dry pavement. The hazard must be one the owner knew about and the visitor could not reasonably have expected.

3. An owner who undertook the duty

A landlord's lease may promise snow and ice removal, and that promise can be enforced. Ohio's landlord-tenant statute, by contrast, has been read not to require landlords to clear natural snow and ice, so the lease, the landlord's own practices, and the condition of the building matter a great deal. A landlord or business that clears a walkway and leaves it more dangerous than before, for example by piling snow where meltwater runs across a path and refreezes, can be liable for the hazard it created. A business that hires a snow-removal contractor whose work makes conditions worse may also be answerable. When ice is not purely natural, or someone has made it worse, the natural-accumulation rule is not the end of the analysis.

Why the same-day evidence decides everything

The difference between "natural" and "unnatural" ice is a question of fact, and the fact disappears with the first warm afternoon. By the time an insurance adjuster or a lawyer looks at the scene, the ice is gone, the downspout has been moved, and the snow pile has melted. These cases are won or lost on evidence gathered within hours:

• Photographs of the ice and its source. Not just the spot where you fell, but the downspout above it, the slope the meltwater ran down, the pile the plow left, the gutter that is dripping. Photograph the surrounding area to show that the rest of the walkway was clear or treated.
• Weather conditions. Note the time, the temperature, and whether it was snowing. If it was 40 degrees and sunny with ice in only one spot, that fact alone points away from a natural accumulation.
• Witnesses. Anyone who saw the fall, or who can describe the ice, including employees who may say "that spot is always icy."
• An incident report. Ask the store or building management to make one, and get a copy.
• Your shoes and clothing. Keep them; a defense lawyer will ask what you were wearing.
• Medical care. As with any fall, get examined the same day and tell the provider exactly how and where you fell.

Much of this is the same investigation we described for store falls generally, but with a shorter clock. Snow and ice evidence is the most perishable evidence in injury law.

Where these cases happen

Apartment complexes, strip-mall parking lots, gas stations, hospital and office-building entrances, and church steps are the most frequent settings, because they combine heavy foot traffic, drainage structures, and plowing. Our page on premises liability in Dayton covers the general duties that owners of these properties owe.

What this means for you

• Ohio owners generally are not liable for falls on naturally fallen snow and ice. Do not assume a winter fall is a case, and do not assume it is not.
• The claims that succeed involve ice the owner created or made worse (downspouts, refrozen plow piles, bad snow removal), a hidden danger the owner knew of, or an owner who had taken on the duty to clear.
• Photograph the ice and its source the same day. If you are too hurt to do it, ask a family member or friend.
• Ohio's two-year deadline for injury claims applies, as we explained here, but the evidence deadline is measured in hours.