The Law

Winter Inspections by Ron Davis Owners of two snow-belt shopping centers offer lessons on how to protect from lawsuits caused by slip-and-fall injuries during winter weather. One of the shopping centers is located in the Albany, N.Y., area; the other is in Toledo, Ohio. And both were similarly accused of failure to properly maintain their premises. At the Albany center, a female patron slipped and fell while walking on an area of the center’s sidewalk that consists of brick pavers. The fall resulted in a fractured wrist, and she sued, claiming that the center’s owners had negligently allowed ice to accumulate on their sidewalk. In reply to that charge, the center’s grounds manager and a member of his crew pointed out that on winter days when there is no storm, the sidewalks are inspected at least twice a day. Those inspections occur, they said, once in the morning and once in the afternoon. Moreover, they added, salt is routinely applied to the sidewalks during the morning inspection. Finally, both the grounds manager and the crew member said their records show that on the day of the accident, an inspection was made both that morning and afternoon, and no snow or ice was observed on the sidewalk. They added that they had received no complaints about sidewalk conditions that entire day. A local meteorologist also affirmed that temperatures had remained below freezing the day before and the day of the accident. A trace of snow fell on the day of the accident, the meteorologist said, but salt applied the morning of the accident would have melted any existing ice. In any case, he concluded, such a small amount of snow “would have evaporated.” A New York court, in ruling in favor of the shopping center, explained, “Speculation as to the size and visibility of the purported patch of ice is insufficient to raise a factual issues regarding the constructive notice in light of the proof that the area had been inspected at least twice on the date of the accident and no ice was observed.” (Ravida v. Stuyvesant Plaza, Inc., 2012 WL 6621170 [N.Y. A.D. 3 Dept.]) At the Toledo shopping center, a shopper slipped and fell while walking on a sidewalk while visiting there on a frigid February day. The fall resulted in a fractured right ankle. She subsequently sued the owners and tenants of the shopping center, as well as the company in charge of clearing snow and ice from the center’s sidewalks. She claimed they all were negligent in not removing ice and snow from the sidewalk. But the woman admitted that on the day of her injury, it had not snowed. Nor had it snowed the day before, she added. In fact, she described the weather as calm and the temperature above freezing. But she pointed out that as she approached the sidewalk where she fell, she noticed an icy area. She said her attempt to avoid stepping on that spot caused her fall. In response to her lawsuit, the center explained that it paid a contractor to plow and salt all designated areas at the shopping center within one hour after an accumulation of two inches or more of snow or ice. That contractor also insured routine winter-weather inspections of the center premises. In ruling in favor of the shopping center, an Ohio appellate court confirmed that the precautions taken by center personnel were sound, adding, “There was no evidence presented to show that the shopper’s injuries were the result of an unnatural accumulation of ice and snow. There is no evidence even confirming her suspicion that she stepped on ice. Accordingly, the finding was correct that [the shopping center] did not breach a duty of care owed [her] in this case.” (Dailey v. CA New Plan Acquisition Fund, L.L.C., WL 6617390 [Ohio App. 6 Dist.]) Decision: January 2013 Published: February 2013