At recent presentations for SIMA in Chicago and New England Grows in Boston, attendees expressed interest in the potential legal responsibility of a snow and ice management contractor who voluntarily renders a service not required under the contract and fails to properly perform. The following scenario is real, although the names and location have been changed.
Rosemary Torek was injured Jan. 11, 2015, while exiting Gibson’s Grocery in the Nationwide Pavilion in Glendale, NJ. Rosemary was walking in the parking lot behind parked vehicles when she fell. Rosemary alleges her fall was caused by black ice. The weather was clear and cold at the time of the occurrence.
During the trial, Rosemary testified it was cold and had snowed the day before. She said she arrived at the store around 8:55 a.m. and parked approximately 400 feet from the entrance. She was wearing sneakers and carefully walked from her car through the parking lot toward the store, to avoid ice, with no incident. She does not remember whether she complained to anyone in the store about the ice.
Rosemary exited the store at approximately 9:15 a.m., walking through the parking lot to her car, carrying one bag, when she slipped on ice and fell, hitting her head on the ground. She fell right in front of her car, and claims the entire area was covered with black ice. Rosemary identified Kris Dreyer as a witness, who confirmed Rosemary’s recollection of the parking lot’s condition.
A certified snowfall report for New Jersey, including the general vicinity of the accident, reflects 1.5 inches of snow accumulation in Glendale the day before Rosemary’s accident.
The snow contractor
A. Gomez Snow Services entered into a contract with property manager Giglio Commercial to perform snow management services at the subject premises. Pursuant to this agreement, A. Gomez was required to remove snow from the entrance and through roads, parking areas, back-entry doors, rear dock areas and walkways automatically upon 2 inches or more of snow accumulation. However, if there were less than 2 inches of snow accumulation, A. Gomez could service only upon request of the property manager. Further, the contract expressly provides that follow-up visits may only be done at the direction of the property manager, thus A. Gomez Snow Services is not contractually responsible to monitor the site for icy conditions.
A. Gomez Snow Services retained H. Battle Landscaping as a subcontractor to perform snow clearing and deicing services. Under the terms of their agreement,
H. Battle was compensated based on per-push pricing. The agreement specifically reflects services under 2 inches of snow accumulation requires authorization.
E-mail correspondence from the day of the accident revealed that at approximately 7:50 a.m., a site supervisor for A. Gomez Snow Services observed ice and requested permission from the property manager to salt the premises. Despite the company having no contractual responsibility or duty to inspect and monitor the premises, once the A. Gomez supervisor took the initiative to visit the site and contact Giglio Commercial, it became the company’s responsibility to properly perform necessary services if authorized.
Twenty minutes later, the Giglio Commercial property manager authorized A. Gomez Snow Services to salt the sidewalk and parking lot. For reasons that were never clear, no services were performed, and Rosemary was injured when she fell about an hour later. To make matters worse, a representative of H. Battle Landscaping testified his company was not requested to perform services on the day of the accident; and all evidence pointed to a failure of A. Gomez Snow Services to request services, despite receiving authority to treat.
At trial, the defense argued Rosemary failed to exercise due caution for her safety, and therefore the proximate cause for her accident was her failure to take proper precautions. She testified she walked into Gibson’s Grocery slowly to avoid ice, with no incident. She also testified she traveled essentially the same path back to her car but arguably was not as vigilant leaving the store. Further, had she advised Gibson’s Grocery the ground outside was slippery, remedial action could have been taken to ameliorate the hazard.
The jury did not accept the defense argument, since authority for salting was granted to A. Gomez Snow Services. The jury also did not accept A. Gomez Snow Services’ argument that it had no contractual duty to inspect and could not be responsible for the accident. The jury found in favor of Rosemary. H. Battle Landscaping was not found liable since the jury believed A. Gomez Snow Services did not request the subcontractor perform services. Absent that request, there was no contractual responsibility for H. Battle Landscaping to treat or inspect at less than 2 inches of accumulation.
Gibson’s Grocery was not liable since, under its lease, the property manager was responsible for parking lot maintenance, including snow clearing and ice treatment. Giglio Commercial was also found not liable. While it was responsible for keeping the premises safe, evidence showed the company granted A. Gomez Snow Services authority to treat on the morning of the accident.
Essentially, although A. Gomez Snow Services was not contractually responsible for monitoring the site for icy conditions, once it provided this extra service and was authorized to salt, it became responsible to see the service was properly performed.
I am not suggesting a snow contractor refuse to provide extra services, but if you choose to do so, they must be properly performed to avoid liability.
Darryl Beckman founded Beckman Roth Ogozalek, which has offices in New Jersey and Pennsylvania. Contact him at email@example.com.