A Pennsylvania judge’s denial of a snow removal contractor’s motion for summary judgment has interesting implications for premises liability cases in the Commonwealth.  In the case of Reilly v. Main Avenue Realty Development, LP, the court addressed the liability of a snow removal contractor in a premises liability action arising from an alleged fall on an isolated patch of ice on commercial property.  The ice was allegedly created by a dripping overhang near the entrance of a store.

The contract provided that the snow removal contractor was required to treat the premises whenever there was a snow accumulation of one-inch.  However, since the contract’s inception in 2010, the contractor, by admission of his deposition testimony, would treat the premises whenever there was a snowfall, even if it was just a dusting.  In light of this admission, the Court noted that a written agreement may always be modified by subsequent conduct of the parties indicating a new or different intent under the contract, and held that the snow removal contractor was obligated, by his own past behavior, to treat the premises whenever snow fell, regardless of the accumulation.  At the time of the plaintiff’s alleged fall, the snow removal contractor had not treated the premises despite a trace amount of snowfall.

With respect to liability for the plaintiff’s alleged fall on an ice patch caused by a dripping overhand, the Court found that the snow removal contractor was not liable under the contract to treat the dripping overhang.  However, in light of evidence on the record that trace amounts of snow had fallen on the premises, the Court concluded that a question of fact existed because a jury could find that the recent snow triggered a duty on the part of the snow removal contractor to treat the premises.

In this matter, the Court applied tried and true contract principles to deny a motion for summary judgment.  Unbeknownst to many of us, our conduct in the performance of a contract may actually alter the terms of the contract and, ultimately, shift liability.

Thanks to Hillary Ladov for her contribution to this post.