Landowner Obligations for Snow and Ice Removal

Anyone who has spent a winter in Indiana knows that snow and ice are unavoidable weather conditions. Slip-and-fall injuries are a common occurrence and a common subject of insurance claims that lead to lawsuits. To avoid the time and inconvenience of these claims, now is the time for commercial landowners to consider a snow and ice removal maintenance program, including what agreements to make with snow removal contractors.

In Indiana, a landowner owes a duty of reasonable care to protect the people who visit the owner’s premises. Even though a landowner owes a duty to protect the visitors on its land, Courts have also made clear that landowners do not have to absolutely ensure that no one is injured on the premises.

The concept of a duty of reasonable care could be interpreted in a number of ways. While what is “reasonable” usually depends on the circumstances and is a question a jury must decide, Indiana Courts have established the following definition to provide guidance:

A landowner is only subject to liability for a visitor’s injuries caused by some condition of his/her land if:

1. the landowner either knows or by exercising the caution of an ordinary person would have found a dangerous condition and realized it involves an unreasonable risk of harm to visitors, and
2. should expect that the visitors will not discover or realize the danger, or will fail to protect themselves against it, and
3. the landowner fails to exercise reasonable care to protect them against the danger.

So, what should landowners of a commercial property do to fulfill their duty to exercise reasonable care to those who visit their premises? Develop a policy for addressing snow and ice remediation –.and then stick to it. Courts do not expect a landowner to walk in front of a visitor with salt and a shovel, but neither will judges allow the landowner to ignore accumulated snow and ice. When accumulation occurs, the landowner, its representative, or a snow removal contractor should perform some type of remediation, such as shoveling, plowing, or salting.

If a decision is made to hire a contractor to provide snow and ice remediation, make sure there is a written agreement. That written agreement should describe when the contractor will perform work on the premises and exactly what type of work will be done. Many snow removal contracts state that a contractor will perform work when 2 inches of snow has accumulated. The contract should also define the areas on the premises that the contractor will address. Some examples are parking lots, sidewalks, and stairways. If a landowner uses a 2-inch standard, the landowner should also develop a plan to address accumulations of less than 2 inches, as people can still slip under these conditions.

Landowners should keep track of all the instances when a snow removal contractor performs work on the premises. If the contractor performs the work poorly, and injury to a visitor happens, the contractor could be held liable for negligence.

Whenever a landowner learns of a slip-and-fall on its premises, a report should be made with as many details about the incident as possible. This report should include pictures of the premises, including the specific area where the fall occurred. This documentation should occur whether or not the visitor appears to be injured. Some injuries take a day or two to be made known.

Finally, if a visitor is injured from a slip-and-fall, the landowner’s insurance company should be notified and provided with a copy of the landowner’s report. The sooner an insurance company is involved, the more steps that the company can take to prepare for a claim or suit related to the incident.

Barrett McNagny’s litigation attorneys can assist you in developing snow and ice removal maintenance policies and analyze your agreements with snow removal contractors to advise you on how to meet your duty of reasonable care.