VOL. 119 | NO. 1 | Monday, January 3, 2005
Icy Weather Could Mean Busy Courts
Winter Weather Could Mean Busy Courts
Storm leads to premises liability issues for businesses
The Daily News
When the winter storm came through Memphis recently, it
surprised more than weather forecasters, who couldnt have predicted that the
ice would remain for a week. Shoppers attempting to buy last-minute Christmas
presents also were jarred by the event, as parking lots, sidewalks and streets more
closely resembled skating rinks.
But the real shock could follow the melting process attorneys
already are being contacted over issues related to premises liability.
Reasonable care. Tennessees
law on premises liability states that a landowner, occupier or possessor, owes
a duty of reasonable care to patrons and invitees including the duty to
maintain the premises in a reasonably safe condition, the duty to inspect the
premises to discover dangerous conditions reasonably recognizable by common experience
and ordinary prudence, and the duty either to remove or warn of the dangerous
condition the possessor knows or should reasonably know about.
I understand there have been a lot of injuries, so I
anticipate there will be a lot of lawsuits, said Jill Steinberg, a personal
injury defense and litigation attorney and a shareholder with Baker, Donelson,
Bearman, Caldwell & Berkowitz PC.
Gray area. George Skouteris Jr., an attorney with Skouteris
Law Firm who has represented both plaintiffs and businesses in premises
liability cases, said the law can be difficult to comprehend.
There is a lot of gray area as to what point the business
is liable, he said. Does it start in the parking lot? Youve got to maintain
a safe ingress and egress if youre going to be open for business. You cant
have a dangerous condition between the customer and the front door.
Protecting patrons. But
what happens when the business operator or landlord hasnt made an effort to
make the area safe? Its apparent to both the patron and business when a
parking lot is covered with ice that it will be slick. As long as the business
opens its doors to the public, it should make an effort to protect those
You can shovel a small area and then put some sort of crime
tape up for an area where they need to walk and pass
through, Skouteris said. Its certainly not
reasonable for Wal-Mart to go out and shovel their whole parking lot, but is it
reasonable for them to have a 10-foot stretch from the parking lot up to the
front door? I would say yes.
The law says businesses should make a reasonable effort to
maintain the premises. But there are instances in which patrons should make
reasonable effort, too.
Ive tried these cases before, and it gets into, Hey, what
kind of shoes were you wearing? Did you have leather-soled shoes or did you
have rubber-soled shoes, and why would you go out of the house with high heels
on in the snow? Skouteris said. Theyre tough
cases to win.
Tough situation. Putting down salt or sand, not to mention shoveling a path, helps.
But sometimes closing the business until the property is safe again is the best
option, particularly in a storm as problematic as the one the city recently
Thats the safest thing, but a lot of them cant afford to
do that, Skouteris said. If they cant get out
there and throw some salt out or at least shovel some snow out of the way to
where (customers) can get in and out without falling and breaking a hip, thats
an option they need to look at. A storm as bad as this last one was, its tough
to melt ice even with salt, and its nearly impossible to shovel, because I
tried it myself.
This year is probably somewhat unique in that the ice was
so prevalent and so thick everywhere that it was probably much more difficult
for business owners to remove it and make it safe for walking, she said.
Anyone who was injured the day the ice began to fall might
not have much luck with lawsuits. Its when problems occur days after the event
that juries could see reason for a reward.
It had just happened, and it was obvious to everyone that
it was there, Steinberg said. A business owner wouldnt have had an
opportunity to do anything about it. Now as you get a day or two out, the duty
Whos responsible? Businesses that dont own their own
properties face an interesting situation, as theyre not always responsible for
maintaining sidewalks and parking lots. It depends on the lease and which party
is responsible for common area maintenance.
Saying whats written in the lease is probably the absolute
precise answer, said Mike Greenberg, chief executive officer of commercial
property management firm Makowsky Ringel Greenberg LLC. But the reality is,
most of us, Im sure if you took all of the commercial landlords in town and
you took their leases and you went to a lawyer, I have a feeling youd find
that theyre all essentially the same.
Typically, the landlord is responsible for the common area
maintenance, but the lease might state that the tenant is responsible for the
Whether the landlord or the tenant is responsible for
cleanup, Greenberg said the timing of the recent storm, not to mention the
severity of it, made it difficult to do anything for a few days.
Until probably early (last week), what could the landlord
do? he said. Who could I get over there to do anything? (Dec. 24), for
example, would have been very difficult to get somebody over to these places to
do much of anything. Look how little the city was able to do in its common
areas, the streets.