When we suffer from a snow or ice storm in Missouri, liability claims skyrocket from persons falling courtesy of nature’s handiwork. In Cleek v. Ameristar Casino Kansas City, LLC, the court clarified the exception to the general conditions rule of law that protects the landowner from liability for injuries related to falls on snow and ice in Missouri. When a landowner is presented with such a claim, a fact-intensive inquiry must be conducted in order to determine whether the residential or commercial policyholder has any duty to the injured claimant.
You start with the premise that your client owner has a duty to warn of or remove a dangerous condition on the property. Snow and ice are considered a dangerous condition under Missouri law, and typically is not subject to the “open and obvious defense.” However, Missouri follows the “Massachusetts Rule” which provides that “an owner has no liability to remove snow or ice that accumulates naturally and is a condition general to the community.”
There are two exceptions to the Massachusetts Rule. These exceptions impose a duty when the owner voluntarily assumes the duty to remove snow or ice either by agreement or through a course of conduct over a period of time. The Cleek case is concerned with both these exceptions and construes them very clearly and very favorably for the defense. In Cleek, the plaintiff arrived at the casino before an impending ice and snowstorm hit the Kansas City area. When he arrived, the casino had salted the parking lot and driveway areas, but not its walkways and sidewalks. Plaintiff was inside when the storm arrived and, as he was exiting, he fell on ice on an untreated sidewalk.
Generally, if an owner does nothing – no shoveling, no plowing or no salting – no liability arises. Once the owner starts safeguarding the area, a duty arises to do it well. Since it’s almost impossible to clean all snow and ice off an area, invariably someone falls, and then the question becomes does the case get to the jury and, if work has begun, generally the court will let the jury decide the case.
Plaintiff argued that, since in the past the casino had always salted the walkways, the course of conduct exception should apply. The Court rejected this argument finding that the “over a period of time” condition to this exception did not apply to past conduct, rather only that period between when the present storm began and when the fall occurred. Since no salting or plowing occurred during that period, the exception was not applicable. The Court also rejected the argument that since part of the property had been salted, the owner had a duty to salt all the property.
Plaintiff also argued that the “agreement exception” applied because he had visited the casino for sixteen years based on the casino’s timely and thoroughly removing snow and ice, and he relied on that practice. The Court found that there was no “meeting of the minds” to support an agreement, and further stated that Missouri does not even recognize an exception if the owner has a written snow and ice removal policy.
So, as the snow and ice claims begin coming in this winter and spring, keep Cleek handy to determine possible exposure and defenses. These are good cases to defend on the law, as well as before a jury.