Check Lease for Winter Weather Maintenance Obligations

November 26, 2013
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Q: Heavy snowfalls and icy conditions are common during the winter months in the area around the shopping center where I rent space. I’m aware that, under certain circumstances, I could be held negligent for slip-and-fall accidents on the property. How can I find out what these situations are and my duty to prevent them?

A: Slip-and-fall accidents can lead to drawn-out lawsuits and increased insurance premiums, so it’s important to avoid them in any circumstances, especially when you have some responsibility to prevent them. First, find out if the lease requires you to provide snow and ice removal or if your owner or its property manager will do this.

If snow and ice removal is your responsibility, contract with a company that will provide these services. Then make sure that you follow through with the maintenance service contract. Otherwise, you could be sued and end up having to pay damages for negligence. That was the case for a New Jersey tenant that failed to provide snow removal services for the property and ultimately was liable for “black ice” slip-and-fall injuries suffered by two customers in its parking lot. The customers sued the property owner, the tenant, and the tenant’s landscaping and lawn maintenance company, claiming that they were negligent because they didn’t properly maintain the premises in a safe condition.

Under the lease, the owner was required to maintain the premises, including the building and any and all equipment and fixtures “in good repair and tenantable condition.” The tenant was obligated to pay for snow removal, among other maintenance services like trash removal.

Although the tenant contracted with the landscaping and lawn maintenance company in early December to provide snow removal services for the property’s parking lot, it didn’t accept the company’s proposal to provide the services until later that month—seven days after the accidents.

The key is to provide service as it’s required. In the New Jersey case, a judgment without a trial was granted in the owner’s favor because it wasn’t responsible for snow and ice removal under the lease, and was an “out of possession owner” with no control over the snow and ice removal on the property and no actual or constructive notice of any snow or ice condition on the date of the accidents. The landscaping and lawn maintenance company was also off the hook because it wasn’t under contract with the tenant to provide snow or ice removal services on the date of the accidents.

Because the tenant was the only party responsible for snow and ice removal on the day of the accidents and because it negligently failed to provide the required service, it was liable for the customers’ injuries [Piersol, et al. v. United States of America, et al., July 2009].

If you haven’t already checked your lease to see what your winter weather responsibilities are, you can still avoid the result in this case by planning for services as soon as possible. If the tenant here simply had hired the landscaping and lawn maintenance company earlier and used its services to clean up snow and ice thoroughly after bad weather, it could easily have avoided its lawsuit, too.