Ice, Darkness, and Ohio's Natural-Accumulation Rule: Lessons From Gibbs v. Speedway

Published August 22, 2014 · Ohio Appeals Courts

It is August, but the Second District Court of Appeals just decided a January case that every Dayton-area resident should understand before the first freeze. A West Carrollton man walked out of a Speedway station at 7 a.m. to fill a kerosene can, crossed a rutted, iced-over lot that he described as pitch black, stubbed his foot on something, and went down hard enough to break a rib and crack another. He sued. He lost, and on July 11 the court of appeals affirmed. The reasons are a roadmap of exactly what a winter-fall case in Montgomery County needs, and what sinks it.

What happened in Gibbs

According to the opinion in Gibbs v. Speedway, L.L.C., 2014-Ohio-3055 (2d Dist.), Glenn Gibbs drove to his neighborhood Speedway on January 21, 2011, to buy kerosene. The pump was on the side of the building. A light pole stood near it, but a tanker truck was parked in front of the pump and blocked the light. Mr. Gibbs noticed the darkness on his way into the store. The lot was iced over with rolls of ice and snow on top; he agreed in his deposition that it was a natural accumulation, not the result of a burst pipe or anything the station had done.

Walking back out, he took what he called "little bunny steps" across the ruts. Then he stubbed his left foot on something and fell. He could not say what it was. He thought it might have been a rut in the ice, or a red cap he saw on the ground afterward, but he testified that it was too dark to tell.

The trial court granted summary judgment for Speedway, which means it ended the case before trial because, in its view, no reasonable jury could find for the plaintiff. The Second District agreed on four independent grounds.

The four reasons Mr. Gibbs lost

1. He could not identify what caused the fall. Ohio courts, including the Second District, hold that a slip-and-fall plaintiff must identify or explain the reason for the fall. Mr. Gibbs honestly testified that he did not know. Earlier cases have allowed a witness to supply the cause, but no one saw Mr. Gibbs fall, and his own guess was not enough.

2. The ice was a natural accumulation. Ohio's long-standing rule is that a property owner owes no duty to remove natural accumulations of ice and snow or to warn about them. We explained this doctrine and its exceptions in our post on falls on ice and snow. The exceptions, such as an unnatural accumulation created by a downspout or a plowed pile, or a hidden danger substantially more dangerous than a visitor would expect, require evidence. Mr. Gibbs conceded the accumulation was natural.

3. Darkness is open and obvious. The court held that the inability to see because the tanker blocked the light was itself an open-and-obvious danger, and an owner has no duty to warn of dangers that are open and obvious. The court was careful to note this is a fact-specific question. It distinguished its own 2010 decision in which a woman opened an unlit door expecting a restroom and fell down stairs; there, the door hid the danger, so a jury had to decide. We wrote about that case, Hissong, in our post on dark stairway falls. In Gibbs, by contrast, nothing was hidden. Mr. Gibbs knew the area was dark before he walked into it.

4. The city's lighting ordinance was too general to create negligence per se. This is the most interesting part of the opinion for future cases. Mr. Gibbs argued that West Carrollton's property-maintenance code required adequate lighting, and that a violation of a safety ordinance is "negligence per se," which would defeat the open-and-obvious defense. The Second District agreed that municipal ordinances, unlike administrative rules, can support negligence per se. But it held this particular ordinance, which required light "sufficient to permit" safe use of the space, only stated a general goal rather than a specific, measurable standard. Quoting the Ohio Supreme Court's February decision in Mann v. Northgate Investors, the court explained that a statute supports negligence per se only when it sets forth a positive and definite standard of care. In Mann, the specific statutory duty to keep common areas safe did override the open-and-obvious defense.

What a winnable version of this case looks like

We do not write about cases like Gibbs to discourage people. We write about them because the same fall, documented differently, can be a strong claim. Here is what changes the outcome.

• A witness, a photograph, or a prompt report. If Mrs. Gibbs had photographed the lot that morning, or if a clerk had seen the fall, the "cannot identify the cause" problem may have vanished. Photograph the exact spot, the lighting, and what you tripped on before anything is cleared or melts. Report the fall to management immediately and get a copy of the incident report.
• An unnatural accumulation. Ice that forms from a leaking canopy, a clogged downspout, a plow pile that melts and refreezes across a walkway, or a lot that is graded to pool water at the pump is not a natural accumulation. That evidence usually comes from photographs, maintenance records, and sometimes a quick visit by an investigator before conditions change.
• A hazard the owner created or controlled. The tanker blocking the light is the fact that nags at me. A business that parks its own supply truck in a way that blacks out the only light over a customer walkway is doing more than failing to warn about weather. The court treated the darkness as open and obvious to a customer who already knew about it; a customer encountering it for the first time, or one directed by an employee to walk through it, presents a different case. The Second District said as much when it noted that Mr. Gibbs had not been instructed or induced by Speedway to go into the dark.
• A specific code violation. A lighting ordinance that specifies foot-candles, or a building-code provision with a measurable standard, is the kind of positive and definite rule that can support negligence per se. Whether such a provision exists is a question for a lawyer, not an adjuster.
• Attendant circumstances. This year two Ohio appellate districts reversed summary judgment where distractions or conditions made an otherwise visible hazard harder to appreciate: a customer carrying a large box in Mulcahy v. Best Buy, and a wedding guest crossing an unmarked step in dim light and loud music in Matt v. Ravioli. The Second District has applied the open-and-obvious rule more strictly than those courts, so those arguments must be built with evidence, not assumed.

What this means for you

Falls on ice and in the dark cause broken hips, wrists, ribs, and head injuries, and the people most often hurt are older adults for whom a fracture can be life-changing. The difference between a dismissed case and a recovery is almost always what was documented in the first day or two: what caused the fall, whether the condition was natural, who created the hazard, and what the lighting really looked like.

Our premises liability page explains how we investigate falls at gas stations, stores, apartment complexes, and parking lots. The time to call is before the ice melts and the surveillance video is recorded over, not after the insurer has denied the claim.