Negligence Liability For Failing To Remove Accumulated Snow

Not surprisingly, failure to clear your sidewalks of snow can get you sued if someone falls on the snow and gets hurt.  Even though property owners aren’t responsible for the fact that it snowed or how much or how long it snowed, they still have to remove it in a reasonable and timely manner.  The Iowa Supreme Court has issued decisions in the past that concerned liability for negligent snow removal.

The duty to remove natural accumulations of snow is based on actual or constructive notice of the snow accumulation and a reasonable period of time within which to remove it.  In other words, the property owner has to know that snow has accumulated and have time to remove the snow before there can be liability for negligence.  Regarding the timeliness of snow removal, the Iowa Supreme Court does not require property owners to remove a snow accumulation before a snowfall has ended.

The requirements of notice and an opportunity to remove the snow only apply to situations involving natural accumulations of snow.  They do not extend to situations in which the property owner has control over the condition that caused the snow to accumulate.  Examples of such an artificial condition include landscaping and architectural design.  A property owner is presumed to know about an artificial snow accumulation.

Liability can also arise by doing a shoddy job of snow removal.  Poor snow removal alters the natural snow accumulation and turns it into an unnatural accumulation.  So does removing the snow and depositing it elsewhere; if someone falls in the area where the snow was deposited after removal, that’s considered an injury caused by an unnatural accumulation of snow.  Another possibility is removing snow and depositing it in the street or creating a large snowbank that restricts visibility, either of which can cause a car accident.  Under any of those scenarios, the stricter liability rules for removal of unnatural snow accumulation apply rather than the more lenient standards for removal of natural snow accumulations.

The “Contact Sports” Exception For Physical Injuries Suffered While Playing A Sport

Iowa law recognizes that participants in certain types of activities or circumstances owe less of a duty of care to other participants.  In other words, in certain situations it’s harder to sue someone than it’d normally be.  Those instances normally involve situations in which someone has voluntarily exposed themselves to a greater risk of harm and thus can’t be heard to complain when harm occurs.

One such activity that has been identified as an exception is contact sports.  Participants in contact sports are not governed by the general rules of negligence.  Rather, participants in contact sports are merely required to refrain from reckless or intentional conduct.  This standard recognizes that known risks associated with a contact sport are assumed by participants in the sport and that it is contrary to the competitiveness of contact sports to impose a duty on participants to protect co-participants from such known and accepted risks through the exercise. So participants in contact sports are not completely free from legal responsibility for their conduct that creates a risk of injury, but they do enjoy a substantially lower duty of care in protecting other participants.  This applies not only to the conduct that occurs within the rules and objectives of the sport, but also by conduct from participants who fail to properly execute an activity contemplated by the sport or who violate the sport’s rules.

So what is a contact sport?  This analysis does not focus on whether the participants were engaged in a formally organized or coached sport, but instead centers on whether the activity inherently involves the risk of injurious contact to participants.  Not all sports inherently involve contact capable of injury.  The purpose of deciding whether an activity is a contact sport is to determine if the risk of harm of injurious contact was known and understood as a part of the sport. If the risk of injury is a part of the sport, then the participants must only refrain from reckless or intentional conduct causing injury.

Once an activity has been identified as a “contact sport,” the injured party can only recover if the higher standard of recklessness is proved.  In order to prove recklessness, a plaintiff must show that the participant has intentionally done an act of an unreasonable character in disregard of a known risk or a risk so obvious that the participant must be taken to have been aware of it and so great as to make it highly probable that harm would follow.  An act performed by a participant in a sport that produces a radically different result from the normal and expected result of the act, even when performed negligently, gives rise to an inference that the result was purposeful.

The Iowa Court Of Appeals Rules That Motorcyclists Have No Right To Expect Cars To See Them

On December 18, 2013 the Iowa Court of Appeals upheld a defense verdict against a motorcyclist who sued for personal injuries after he was nearly hit by a car and crashed his bike trying to swerve around the vehicle.  The accident happened at one of Jordan Creek mall’s entrance/exit areas.  Interestingly, the defendant driver had a stop sign.  The motorcyclist had no stop sign and had the right-of-way.  The driver didn’t see the motorcyclist at first, pulled out in front of him, and caused the bike to crash when the rider had to make a choice between slamming into the side of the car or swerving around it.

The jury found that the other driver was not negligent.  The motorcyclist received no compensation for his physical injuries.  So how did the motorcyclist lose this case even though he didn’t have a stop sign and the other driver did?

One problem was that there wasn’t any contact between the car and the motorcycle.  Motorcycle cases can be more difficult to win when the bike doesn’t hit the other vehicle.  It’s almost like the biker would be better off biting the bullet, maintaining course, and smashing into the other vehicle.  Otherwise, motorcyclists will almost always face a defense argument that there was room to get around the vehicle and no need to take the evasive maneuver that led to the bike crashing.  And juries often agree.

I also wonder whether this motorcyclist was penalized for being on a bike instead of a more visible car or truck.  This quote from the decision certainly approves the “I didn’t see him” defense, but it’s not entirely clear whether the motorcycle’s small profile played a role: “The evidence in this case is clear that Swank did not see Barrett until after she proceeded into the intersection. It is additionally clear Swank looked forward and to both sides before moving the vehicle. Barrett’s argument faults Swank for failing to look over her shoulder and to the rear in order to see Barrett as he left 68th Street and turned to cross the frontage road.  Though . . . Swank had a duty to maintain and establish awareness of vehicles behind her, it does not follow that Swank was required to maintain awareness of a vehicle behind her, a distance to the side, and on another road.”  It’s interesting that this driver was able to see all the other vehicles at this intersection and yield the right-of-way to them, but somehow missed the motorcycle.

The court of appeals concluded its decision by laying blame with the motorcyclist for relying on his right-of-way and not anticipating that the other driver would fail to yield and pull out in front of him: “The situation that confronted Barrett was a foreseeable occurrence, which a prudent driver should reasonably anticipate. A driver pulling out into traffic at a stop sign in a busy mall parking lot is foreseeable. . . .”

The court of appeals doesn’t explain exactly what the motorcyclist was supposed to do in light of the apparent expectation that other drivers wouldn’t obey the law at the intersection.  Get off his motorcycle and walk it to the intersection?  Park on the side of the road until everyone leaves and he’s the only vehicle left in the parking lot?  Turn around and go home?  I think the Iowa Court of Appeals made a mistake in this case by concluding that the other driver wasn’t negligent.

Recovery Of Money Damages For Bystander Emotional Distress

Iowa law allows plaintiffs in some instances to recover damages for emotional distress damages caused by witnessing a loved one’s serious injury or possible death.  This claim is known as “bystander emotional distress.”  In the 1981 Iowa Supreme Court case that first allowed bystander emotional distress claims, the court gave a stark example of such a situation – A parent who sees her child run over by a car is allowed to sue for the horror caused by witnessing that tragedy.

When determining whether a bystander is allowed to seek emotional distress damages because of witnessing a catastrophic event, such as a motorcycle accident, Iowa’s courts consider (1) whether the bystander was located near the scene of the accident; (2) whether the emotional distress resulted from a direct emotional impact from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence; and (3) whether the bystander and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.

Iowa’s courts are careful to ensure that the bystander’s claim is serious and has some guarantee of genuineness.  The law cannot compensate for every minor disturbance to a person’s mental wellbeing.  To be compensable, the bystander’s mental distress must be serious.  While mental distress may exist without objective physical symptoms, compensable mental distress should ordinarily be accompanied with physical manifestations of the distress.

In addition, a bystander emotional distress claim requires proof that a reasonable person in the bystander’s position would have reason to believe, and the bystander must believe, that the direct victim of the accident would be seriously injured or killed.  Not all injuries reach the level of severity necessary to give rise to a bystander emotional distress claim.  “Serious injury” means bodily injury that creates a substantial risk of death or that causes serious permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ.

Civil Money Damages Liability For Intentional Infliction Of Emotional Distress

Emotional distress damages are usually not available unless the plaintiff has also suffered physical injuries.  The Iowa Supreme Court has been careful to restrict the types of cases in which emotional distress damages can be recovered even without physical injury.  Once such claim is “intentional infliction of emotional distress.”  Under that theory, a plaintiff can recover damages for emotional distress regardless of whether a physical injury has also been suffered.

These claims are difficult to prove.  To be liable for the tort of intentional infliction of emotional distress, a plaintiff must prove (1) outrageous conduct by the defendant; (2) the defendant’s intentional causing, or reckless disregard of the probability of causing emotional distress; (3) the plaintiff’s suffering from severe or extreme emotional distress; and (4) that the defendant’s outrageous conduct was the  cause of the emotional distress.  Iowa’s courts differentiate between “mere bad conduct” and “outrageousness.”

To satisfy the requirement that a defendant’s conduct be extremely egregious, mere insult, bad manners, or hurt feelings are insufficient.  Liability has been found only when the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community. Generally, a claim for intentional infliction of emotional distress only exists when the recitation of the facts to an average member of the community would arouse that person’s resentment against the defendant.

Liability under this theory can only be imposed for intentional or reckless behavior.  A person intends to inflict emotional distress when they want to cause distress, or know such distress is substantially certain to result from their conduct.  A person’s conduct is reckless if they know or have reason to know their conduct creates a high degree of probability that emotional distress will result and they act with deliberate disregard of that probability.

To establish “severe or extreme” emotional distress, a plaintiff must offer substantial evidence of emotional harm with direct evidence of either physical symptoms of the distress or a clear showing of a notably distressful mental reaction caused by the outrageous conduct.  The plaintiff must present more evidence than he or she just felt bad for a period of time.  A plaintiff must prove that he or she suffered extremely unpleasant mental reactions.

Personal Injury Or Wrongful Death Cases Involving Children And Attractive Nuisances

Normally property owners are not responsible for a trespasser’s personal injuries or wrongful death on their property.  The reason for that is simple — A property owner can’t protect people that have no business being there and aren’t known to be there.   But children who are too young to appreciate danger are an exception to that general rule.  Under the “attractive nuisance” doctrine, property owners can be held liable for injuries to or the death of a young trespassing child.

Attractive nuisance claims are difficult to prove.  Iowa’s courts have been reluctant to ascribe a broad meaning to the concept of an “attractive nuisance.”  In fact, the Iowa Supreme Court sometimes seems to regret ever having recognized the attractive nuisance doctrine in the first place.

A sign of that regret is the supreme court’s strict concept of what constitutes an attractive nuisance.  A person suing for personal injuries to or wrongful death of a child must prove quite a bit to be successful:

  • The property owner was aware or should have been aware that children were likely to enter the property.  Perhaps there’s something on the property that would attract young children and draw them onto it.  Or maybe the property is near a school, park, or some other area where children are frequently passing by.
  • The property owner has something on the property that could clearly be harmful or deadly to children.
  • The trespassing child is too young to comprehend the risk of the dangerous or deadly object on the property.
  • The danger to children is greater than any difficulties that would confront the property owner if the owner eliminated the hazardous object or exercised caution to make the object safer.
  • The property owner did not take reasonable safety measures to protect children from the dangerous or deadly object.

The attractive nuisance doctrine is a corollary of the special rules regarding child/vehicle car accidents.  Both recognize that in certain situations regarding young children adults must give more care than adults normally would for older children or adults.

Loss Of Consortium Claims Involving Children And Personal Injury Or Wrongful Death

Earlier I wrote about spousal loss of consortium claims.  But loss of consortium claims involving children can also arise from personal injury or wrongful death, defective product, car accident, motorcycle accident, or dog bite claims.  There are two types of consortium claims involving children — Those in which a parent sues for injury or death to a child and those in which a child sues for injury or death to a parent.

A child’s claim for damages caused by a parent’s injury or death is known as “loss of parental consortium.”  Loss of parental consortium represents the loss of the services that the injured or dead parent would have provided to the parent’s children.  Loss of parental consortium also  can compensate for the loss of the injured or deceased parent’s company, affection, and cooperation and the assistance of the injured parent.  In Iowa, adult children can also recover for the loss of parental consortium.

Another claim available to children that arises only for the death of a parent is “loss of parental support.”   A child may recover the value of the amount of financial support that the deceased parent would have contributed had the parent lived.  Damages for loss of support are generally limited in time to when the child reaches age eighteen, although there are a few exceptions to that rule that rarely come into play.

The factors used in determining the value of loss of parental consortium and loss of parental support are the same as those for spousal consortium and spousal support claims.  I identified those in my earlier post.

Iowa law also provides parents claims for injury to a minor child and death of a minor or adult child.   A parent may recover damages for the expense and actual loss of services, companionship, and society resulting from injury to or death of a minor child.  A parent may also recover for the expense and actual loss of services, companionship, and society resulting from the death of an adult child.  Note the key distinction between minor children and adult children under this law — Once a child is considered an adult under Iowa law, a parent may only sue for loss of consortium and other damages if the adult child dies.  Parents usually do not have any legal rights stemming from an adult child’s injury, no matter how bad that injury might be.