Winter Weather Could Mean Busy Courts

Storm leads to premises liability issues for businesses

LANCE ALLAN

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 patrons.

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 endured.

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.

Steinberg agreed.

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 goes greater.

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 cost.

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.