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Dissecting a liability claim

By:
  • Darryl Beckman
- Posted: December 1, 2014
On a cold, gray afternoon in late December, heavy snow blanketed the area, creating rush hour traffic jams throughout the tristate region. The early winter storm was somewhat of a surprise, since weather forecasters predicted a fairly minor snow event, with accumulations ranging from a dusting to an inch. The parking lots and sidewalks of local businesses and shopping centers were in poor condition, leaving employees and patrons facing slippery and mostly untreated drive lanes and walking surfaces.

Six months earlier, Wayner Landscape & Snow was awarded the snow & ice management contract for a sprawling new outdoor shopping center, Price Commons. Securing the contract took many months of work, submission of numerous proposals, and extensive negotiations over the cost, scope and frequency of services. The shopping center, featuring in excess of 287,000 square feet of “lifestyle” retail space, presented numerous challenges based on its physical layout, including somewhat congested two-way drive aisles providing access to parking spaces.

Under the terms of the written agreement between Price Commons and Wayner Landscape & Snow, clearing services are to begin automatically upon 2 inches of snow accumulation. No services are performed at an accumulation under 2 inches unless expressly requested by shopping center management, and performance and timing of deicing services are explicitly under its direction and control. If necessary, clearing operations at under 2 inches of accumulation are to commence within one hour of management’s request, and snow is to be cleared to bare pavements and lots. Once services begin, the site is to be treated throughout the storm until completion of services and approval by center management.

The property manager, D. Guertin, is extremely cost conscious and refused to authorize pretreatment for this storm. As a result, by the time Wayner Landscape & Snow was able to start services, the conditions were terrible, and it was impossible to completely clear the area of snow & ice. To complicate matters, the initial steady snow carried into the predawn hours, the snow lightening up and tapering off by 5 a.m. Another period of snow redeveloped after daybreak, tapering to flurries by midday. Drifting snow continued to blanket pavement surfaces through the day and night and into the next morning.

L. Botello claims to have suffered injury when she reportedly fell on snow & ice at Price Commons while shopping for her elderly mother. The accident took place shortly after the storm started, and long before Wayner Landscape & Snow was able to adequately clear parking lots and walkways. Botello was well aware of the poor weather conditions, but was at Price Commons to purchase a gift at her mother’s favorite clothing store.

Botello later testified that it was a cold and windy day, and it started snowing about three hours before her fall. Botello’s husband drove to the shopping center and let her out in front of the store. She walked up the sidewalk and went to open the door. Because of the snow, ice and wind, it was hard to open the door. As Botello was pulling the door open, she slipped on ice and fell. Botello had difficulty moving, and store employees, including the manager, went out to assist her. The manager instructed another employee to call 911, and an emergency squad arrived within 10 to 15 minutes.

Who’s liable?
Ordinary principles of premises liability and negligence govern potential legal responsibility of Price Commons, Wayner Landscape & Snow, D. Guertin and L. Botello.

Duty is a primary element in the tort of negligence. To demonstrate legal liability, it must be shown that a party, such as the owner of a premise, is under a duty toward the injured person to exercise a standard of care. Additionally, it must be shown that a party failed to achieve the required standard of care, the failure to achieve the required standard of care caused damage, and the damage was a consequence of the failure or negligent act.

A commercial property owner generally has a duty to exercise ordinary care in keeping and maintaining the premises in a reasonably safe condition. (In New Jersey, residential owners are usually not liable for pedestrian slip and falls on adjacent sidewalks). By exercising significant control over snow clearing and deicing services through its property manager D. Guertin, Price Commons has a heightened level of potential liability for any injury suffered by L. Botello.

Guertin’s liability will likely depend on the terms of his management agreement with Price Commons. There is usually a written agreement between property management companies and commercial property owners, with the agreement specifying responsibility for legal claims of negligence.

Wayner Landscape & Snow’s liability will depend on the terms of the written agreement for the company’s services. Wayner Landscape & Snow does not possess the same legal duties and obligations as the property owner. However, a contract requiring snow clearing can create a duty to keep and maintain the premises in a reasonably safe condition, and a violation of the duty may lead to liability for personal injury. In essence, any analysis of the potential liability of a snow & ice management company starts with the terms of the contract for services. As the owner or manager of a snow & ice management company, you must carefully read and understand all contractual terms to which you are agreeing, and negotiate a change of any unfavorable terms.

Lastly, an injured person may be found negligent for failing to take proper precautions for his or her own safety. Botello decided to venture out in the middle of a storm and may very well be found negligent and responsible, at least in part, for her injury. 

Insights
  • By exercising significant control over operations, a property manager has a heightened level of potential liability.
  • A snow clearing contract can create a duty to keep and maintain the premises in a reasonable safe condition.
  • An injured person may be found negligent for failing to take precautions for his or her own safety.
  • To demonstrate legal liability, it must be shown that a party is under a duty to exercise a standard of care.
Darryl Beckman is managing partner of Beckman Ogozalek Perez Paglione.
 
 
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