As the weather turns colder and with Punxsutawney Phil predicting a longer winter season, the last thing any brick-and-mortar retailer or restauranteur wants is to be associated with unforeseen personal injury insurance claims, workers’ compensation claims, and/or lawsuits for an incident which could have been avoided had due diligence been practiced. While the following list of steps is not exhaustive, the tips can help protect against claims being made against your business, set up a viable defense to claims in the event litigation ensues and otherwise help prevent injuries in the first place.
Know your snow/ice remediation contractor agreement. Many retailers (or their property managers) hire a plowing company to perform snow/ice remediation services but do not consider how the contents of the vendor agreement may affect them down the road from a liability standpoint. While the contract may cover the salting and plowing of parking lots, they do not always cover the shoveling of common area walkways in the parking lot or, perhaps more important, the sidewalks around your building where both employees and patrons will be walking. If the contract does not cover walkways, your business is responsible for making sure that all sidewalks are sufficiently safe to walk on at all times.
Another common clause in a plowing agreement is that the contractor is not required to service the property unless 1-2 inches of snow falls or the retailer specifically requests a remediation service. In other words, you may not be able to count on your premises being pre-treated for or cleared of ice and snow unless there is a minimum amount of accumulated precipitation. Therefore, it is imperative that you understand when or if specific services are going to be provided and encourage your employees to regularly inspect and apply deicing product to icy areas that may develop in between visits by the contractor.
Finally, confirm that the plowing agreement contains an indemnification clause (which makes the contractor liable for any personal injury claims that occur due to its failure to sufficiently treat the premises). It is also important to get a certificate of insurance from the contractor to make sure that they have coverage sufficient to cover a potential loss.
You should get the certificate directly from the contractor’s broker at the beginning of every winter season. There have been countless occasions when the plowing company gets a master certificate of insurance at the beginning of the calendar year, immediately stops paying their premiums (for which the insurer cancels the policy), gives the invalid certificate to a customer and is then uninsured when an accident occurs. This sequence of events, unfortunately, tends to leave the retailer to foot the bill for defending a lawsuit stemming from a contractor that fails to properly perform remediation services. If possible, also ask the plowing company’s insurance broker to add the name of your business as an “additional insured” on the certificate.
Inspect the premises, inside and out. This simple act is important to do from an accident prevention standpoint as well as from a legal standpoint. In New Jersey, a business with a physical location that is open to customers has a legal duty to inspect for dangerous conditions. A good practice is to make premises inspections a regular routine, such as once an hour or at the beginning of every manager’s shift.
Post signs warning of slippery conditions. In addition to inspecting a property, businesses in New Jersey also have a duty to warn patrons coming onto the premises of the presence of a potentially dangerous condition. The easiest way to do this is to have conspicuous “wet floor” signage present on every entryway door (or just inside the doorway) when inclement weather commences or is expected. From a liability standpoint, putting a customer on notice of a dangerous condition allows him/her to protect against slipping on a floor and could ultimately insulate your business from a related personal injury claim.
Consider interior mats, blowers, dry mops. During inclement weather, it is common for entranceway floors to become slippery when customers and employees enter the building. The most common way to avoid accidents from occurring in these instances is by making sure that heavy, slip-proof mats are placed inside doorways. If you find that floors remain wet, floor blowers may be an option to consider. Finally, there is no downside to occasionally asking an employee to use a dry mop on a wet floor to sop up any excess water which may linger.
Preserve surveillance footage. Should an incident occur either inside or outside a property, it is important to preserve video footage of such incidents for at least two years. In doing so, one should also preserve at least an hour of footage prior to each incident to capture what snow/ice remediation (and inspection) efforts were made before the incident and otherwise record if other people were having issues with slippery conditions during this period.
In the event a lawsuit is filed, the video could sink that person’s claims by showing that the premises was properly inspected, treated appropriately for the weather conditions and that no other patrons or employees had issues traversing the premises.
Further, in a lackluster economy with relatively high unemployment rates – like what we are experiencing in the world of COVID-19 – insurance fraud tends to rise. The existence of surveillance footage can protect against a fraudulent bodily injury or workers compensation claim from being successfully made against your establishment.
Let’s face it – some accidents are simply unavoidable. However, in a time when no one wants to see insurance premiums increase while retail sales are at an all-time low, following these tips can help your business avoid injuries from occurring and otherwise allow it to more easily “weather” any physical or legal storm.
Jeffrey L. Oster is a litigator and partner at Vaughn Baio & Partners focusing on premises liability, professional liability, general negligence and several other practice areas.