As winter approaches, associations are beginning to prepare for what the cold weather inevitably brings – snow and ice. For an association, snow and ice accumulation increases the potential for slips and falls occurring throughout a community. Since these slips and falls can lead to injuries and liability claims, associations may wonder what they can do to limit their exposure to such claims.
According to attorney Stefan Richter, Esq., CCAL, of Clemons Richter & Reiss in Doylestown, Pennsylvania, seasonal slip and fall lawsuits are very common in northern climates where wintry conditions are prominent. However, the frequency of these lawsuits depends not only on weather conditions, but on the association’s preparation and responsiveness.
According to Richter, slip and fall lawsuits aren’t always initiated by homeowners. The location of a community can play a major factor in exposure to liability, he said. For example, a condominium association with lots of public access areas and sidewalks may see a higher frequency of claims. Such claims are not limited to unit owners, but are routinely brought by vendors, invitees and other guests. Obviously, the more public the use, the more likely that claims of non-owners are made, explained Richter.
Slip and fall lawsuits aren’t just limited to snow and ice. Other conditions, such as trip hazards caused by sidewalks, curbing and gaps can lead to lawsuits for an association, Richter said. Similarly, slippery tile or marble surfaces prevalent to wet areas such as entryways, pool areas and bathrooms are often the subjects of personal injury claims.
What can associations do to limit liability for slip and fall lawsuits? “The key is proper management and maintenance,” said Richter. The best thing an association can do, he noted, is to regularly maintain the common elements and all the components within a community. He explained that associations must have routine maintenance and inspection programs in place.
“Associations cannot totally immunize themselves from liability. The best remedy is not to have slips and falls occur; and that is a function of risk management and property maintenance. For example, mats and warning signs should be placed on slippery entranceways during rainy or wet conditions. Sidewalks and steps should routinely be inspected for defects, tripping hazards, drainage and heaving. Erosion areas should be remedied,” Richter said.
He added that homeowners should not be permitted to direct sump pump discharge into areas that could freeze and create a slip and fall hazard. This results in warm water pumping out onto frozen sidewalks, which he calls a “recipe for disaster.” Accordingly, in addition to regulating common elements, associations may also be required to address risks created by individual unit owners, said Richter.
“If a unit owner has made changes to his or her unit, which in turn has created an unreasonable risk of harm, there’s almost certainly something in the declaration that allows the association to take action to prevent it,” Richter said.
He added that the association is required to address any problem it knows exists and remedy the hazard or it will be considered negligent.
When someone does report a fall within a community, the association should immediately take action to protect itself, Richter noted. He suggested investigating the claim and verifying location, as well as gathering relevant evidence. The incident should also be reported to the insurance carrier as soon as possible, said Richter. Most policies require claims to be reported within a certain time limitation.
Is an association always liable when someone falls within a community? The answer is no, according to Richter. “Landowners do not have an absolute duty to protect the public from slips and falls. The association is required to take reasonable measures to prevent them and sometimes that is just not possible,” he said.
Richter added that the association is required to address any problem it knows exists and remedy the hazard or it may be considered negligent. For liability to attach, the association must first be deemed to have acted negligently. Very basically, negligence requires a duty to act, a breach of that duty, causation and damages. All four elements must be present for liability to attach, Richter explained. For associations, their duty is to prevent and remedy unreasonable risks of harm and therefore, notice of the defect or condition is required. Richter pointed out, however, that actual notice is not necessary as notice is deemed present if the association “should have known” through the exercise of reasonable care. Furthermore, according to Richer, if an association fails to remedy a known danger when it should have, and this negligence results in an injury, it will be liable for damages.
Again, associations are not always liable. For example, Richter has seen cases where while snow removal efforts are taking place, a plaintiff walks on piles of snow, falls off and then sues the association. “In some cases, that person has assumed that risk of harm. A reasonable person should wait for snow removal efforts to be completed before venturing out,” Richter noted.
“Although they are routinely sued for all injuries occurring within their borders, associations are often the wrong defendant,” said Richter. In many cases, sidewalk snow and ice removal are the responsibilities of individual unit owners, not of the association, he explained. In those cases, while the association may still be named a defendant in a lawsuit, he said, it will prevail in the action if it isn’t deemed “negligent.” This is because there is no duty for the association to act if it is not responsible for snow removal he explained.
According to Richter, in most cases the association’s general liability insurance policy will cover the litigation and other costs arising from slip and fall claims. Insurance will generally not only cover the cost of defense (attorneys and expert fees), but also any resulting liability (damage award or settlement).
When negotiating vendor contracts, including those for snow removal, associations should make sure those contracts include indemnifications, and they should require the contractor or vendor to have adequate liability insurance to cover any losses that may result from the vendor’s negligence.
Will an association’s insurance rates increase due to slip and fall lawsuits? “Although I am not an expert on underwriting, the higher the claims frequency, the more likely that there will be an increase in the premium,” Richter said. How does this affect the unit owners? According to Richter, unit owners pay the policy premium through their monthly assessments. Therefore, the more expensive the insurance policy, the higher the assessments will be.
As we enter the winter months, associations may begin to evaluate their preparedness for the snow and ice. Proper planning, including effective management and maintenance, can limit the risk of seasonal slips and falls, ultimately reducing the potential for injury and liability claims. It is also important for associations to address and remedy any known problems in order to be proactive in preventing slips and falls. When slip and fall claims do occur, however, associations should be aware of their responsibilities versus those of unit owners to avoid being found negligent in these cases.