As any medical review solutions provider would agree, in personal injury cases including those involving slip and fall injuries including those caused by snow and ice conditions, medical records are vital to provide proof of the plaintiff’s damages. The defense side will also require these medical records to understand the nature of the injuries and determine whether they were caused by the slip and fall on the snow/ice. They will also clearly indicate how the injury affected the plaintiff’s life. Slip and fall injuries are common in the winter season and this is the time when property owners need to take extra care to ensure their premises are safe. This is winter and we thought it would be in place to spend some thought on the general principles of liability associated with snow and ice conditions that could develop for property owners.
To establish liability the plaintiff has to prove a few important things.
- That the plaintiff was lawfully on the property of the defendant
- The defendant created an unsafe condition on his/her property
- The defendant failed to repair the dangerous condition on the property even though he/she knew that it should be repaired to avoid danger.
- The plaintiff was injured because of the defendant’s negligence.
For retail owners, their responsibility for ice and snow on their property is governed by the premises liability law that applies to other property hazards. Property owners have to keep their property in a “reasonably safe condition.” However, a property owner cannot be held liable just because the accident occurred on their property.
- The accident should have been caused by some type of dangerous or defective condition.
- The mere presence of ice/snow does not make the owner liable for the accident – the snow/ice accumulation must rise to the level of being dangerous.
- The owner must have either created the perilous situation or known of its existence.
Can an owner actually create a snowy or icy condition on his/her property? No. you cannot control Nature or decide how much snow is deposited on your property. The “creation” of the hazardous situation starts once action is taken to get rid of the snow and ice. Once this action starts, the owner should ensure it is done safely. If it is done carelessly, it could result in even more dangerous conditions. For instance, if you remove the snow from the front door of the premises and place it on the stairwell, it could become dangerous. The owner can then be held liable for “creating” that hazardous condition.
Owners of a property can also be held liable for an accident if they had “knowledge” of the existence of a dangerous condition. This knowledge could be actual or constructive.
- “Actual” knowledge occurs when the property owner is notified that a dangerous condition exists, and no action is taken. The owner can also be found to have actual notice if they become aware of the defect via their own observation.
- “Constructive” notice is different. It depends on how long the dangerous condition has existed. It must have been present for a long enough period of time so that an owner should have become aware of its existence and adopted measures to fix it.
The timing of a personal injury lawsuit is an important consideration. Depending on each state’s statute of limitations, a potential plaintiff may have a number of years from the date of the accident to initiate a lawsuit. So property owners must become familiar with their own state’s statute of limitations and make use of it to identify how long evidence such as photographs, incident reports, and videos need to be maintained.
What are the common defenses possible in a premise liability case?
- The alleged dangerous condition was latent. It is difficult to prove liability for an underlying condition that is not easily observable such as “black ice.”
- Possible comparative negligence on the part of the plaintiff. The plaintiff neglected an “open and obvious” dangerous condition that could have been avoided without suffering the accident.
- The storm in progress defense – most jurisdictions understand that it is unreasonable to expect a property owner to remove snow and ice when the snow continues to fall. As per this rule, property owners will not be held liable for a hazardous snow/ice condition that forms or exists while the storm that is responsible for the condition is still in progress.
Property owners cannot however evade liability for accidents that occur on their premises. They must understand how they could be held liable for slip and fall injuries related to snow and ice conditions on their premises and become more cautious about keeping their property safe for others. With a clear understanding regarding what they are responsible for and when they are held responsible, property owners can reduce their liability in case a legal action is brought against them.
