To Shovel or not to Shovel

written by Christopher L. McCloskey
Buckingham Doolittle & Burroughs LLP

It’s early evening, mid-January, fifteen minutes before your guests are scheduled to arrive for the neighborhood winter-blues party, and you are bustling with last minute preparations when it hits you - it’s been snowing all day and you have forgotten to shovel and salt the front walk. Despite the fact that you still have thirty minutes worth of hors d’oeuvres and  nuts and mints to set out, you realize there is absolutely no way you will be able to remove the six inches of snow from the front walk before people start arriving. Nevertheless, you can’t escape the visions of your elderly, overweight, less-than-nimble neighbor, Litigious Larry, unsuccessfully attempting to navigate those six snow-covered steps leading to your front porch.

Understanding that Larry is very proud of the fact that he has been able to pay off his Florida beach house through his prior slip-and-fall mishaps, you fear that the current condition of your front walk will provide Larry with the perfect opportunity to blow the dust off his old neck brace and crutches, and ultimately, provide your insurance company with a perfect excuse to jack up your rates, thus ensuring that your insurance agent’s children will have college tuition for many years to come. So, in light of the situation, what is your best course of action - to shovel or not to shovel? Although it will surely agitate your neighbors if they are required to trudge through the perilous straits of your snow-covered front walk, in Ohio, a safe answer is probably to do nothing at all.

According to the Ohio Supreme Court decision in the case of Brinkman v. Ross, a homeowner has no common-law duty to remove, or even make less hazardous, a natural accumulation of ice and snow on private walkways located on the homeowner’s premises. Nor does a homeowner have a common-law duty to warn those who enter upon the premises of the inherent dangers caused by the natural accumulation of ice and snow. The rationale behind this rule is that Ohioans are assumed to appreciate the risks associated with Ohio winters; specifically, that natural accumulations of ice and snow can result in perilous conditions. As such, Ohioans are charged with the responsibility to take measures to protect themselves against the inherent risks presented by such natural accumulations.

On the other hand, should you decide to take the noble approach and (instruct your significant other to) shovel the snow and ice from the front walk for your guests, you might be opening yourself up to liability if you fail to remove the snow and ice in a manner consistent with what a reasonable person would do under similar circumstances. The rationale for this rule is that once you make efforts to remove the natural accumulation of snow and ice, you are under a duty to do so in a reasonable manner.
If you fail to do so and your actions make the condition more dangerous, you may be held liable for a resulting injury.

However, in spite of holdings of that type, it is important to note that, generally, Ohio law is not in favor of allowing snow and ice to accumulate rather than making efforts to remove it. Indeed, in the interest of encouraging people to clean walks, many Ohio courts have expressly refused to hold property owners liable, if the property owner uses diligence and ordinary care in removing snow and ice in a reasonable and safe manner. In fact, Ohio courts have specifically held that when the top portion of snow and ice is shoveled away, the accumulation of snow and ice that remains is still in a natural accumulation. As such, property owners in Ohio will only be held liable when their actions are unreasonable under the circumstances and result in a more dangerous condition than if the snow and ice was left in its natural state.

Returning to your fifteen minute window of opportunity before the party, as discussed, you will not be subject to liability for your decision to forego all snow and ice removal efforts. Similarly, you will not be subject to liability if you decide to abandon the food preparations and focus your efforts instead on removing the snow and ice from the front walk, as long as your removal efforts are conducted in a reasonable manner. (Important safety tip: food abandonment is never recommended when preparing for a party.) However, you are certainly asking for problems from the likes of Larry if you decide to rush the food preparations to allow just enough time to quickly throw some salt on the front steps, as the result will surely be to melt just enough snow to turn the front steps into an ice ramp, which Larry will undoubtedly assert to be an unnatural, dangerous condition.