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Who is in charge of monitoring?

By:
  • Darryl Beckman
- Posted: December 19, 2016
Chris Ryan was injured on Saturday, February 9, 2013, on the premises of the Harkins Mall in Nittanyville, PA.  Although the injury seemed minor at the time, Ryan immediately sought legal counsel and eventually filed a lawsuit seeking in excess of $75,000 in damages.

The lawsuit
Ryan testified that he came out of the mall between 8:00 p.m. and 9:00 p.m. and was walking with a friend in the parking lot in the handicap section next to the mall’s movie theater. He said exterior lighting was dim, and he slipped and fell on black ice.

The report
On the date of the accident, a security officer was assigned to patrol the exterior of the mall and was also instructed to report dangerous conditions and investigate any accidents.

The officer was patrolling the parking lot when he was notified of Ryan’s slip and fall. Ryan had a few minor scrapes and needed only minor medical attention. The security officer inspected the parking lot, took photographs of the ice and prepared an incident report. 

The security officer noted the only ice in the parking lot was at the location of Ryan’s accident.  He also noted he saw no evidence of application of any ice melt product in the area of the accident.

The weather
Certified weather data reflected a winter storm impacted Nittanyville, PA, on February 8-9, 2013. The weather included heavy rain, followed by moderate snow, with temperatures ranging from 25° to 34° F. Snow accumulation in Nittanyville was 4.1 inches.

The contract
J. Attamante Snow Management entered into an agreement with Harkins Mall for snow maintenance at the premises.  Surprisingly, the contract is extremely vague and offers no specific language on when services are to begin, inspection responsibility, premises monitoring or whether follow-up visits are required.

The testimony

The manager of Harkins Mall testified that snow clearing at the mall, including plowing and application of ice melt product, is performed by J. Attamante Snow Management in response to a storm event measuring over 2 inches in accumulation. Mall maintenance staff will perform all snow clearing and deicing services in response to a storm event measuring less than 2 inches of accumulation.

J. Attamante Snow Management claimed it receives complete direction from the Harkins Mall management as to what services to perform and when. Additionally, once services are complete, J. Attamante Snow Management does not return to the mall to perform follow-up services unless requested by the mall.

The documentation
Service documentation submitted by J. Attamante Snow Management reflects snow clearing and deicing services at Harkins Mall during the early morning hours of February 9, 2013.  Services extended from 3:00 a.m. to 9:30 a.m., and included snow clearing and application of deicing materials (salt and calcium) to exterior surfaces of the mall.

The outcome

Harkins Mall was found responsible for Ryan’s injury. The court found that the storm event ended on the day of the accident at about 8:00 a.m. J. Attamante Snow Management completed snow clearing and deicing services by 9:30 a.m., and no request was presented by the mall for a return to the premises for additional service.

The court accepted the documentation of services submitted by the snow clearing company and also found Ryan was partially responsible for not paying attention to conditions of the parking lot.

The solution
To avoid confusion on service requirements, make sure there is a written contract in place for any future services. You never want a situation where your company is at odds with a property manager on responsibility of required services.

At a minimum, the contract must clearly outline the scope of services, including when services are to begin, the expected services to be performed, responsibility for follow-up services, monitoring and the price for services.

Darryl Beckman founded Beckman Roth Ogozalek, which has offices in New Jersey and Pennsylvania. Contact him at darryl@beckmanlawgroup.com. The names and site locations in this article have been changed to protect identities. Ensure your contracts have been reviewed by legal counsel.
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