Who’s responsible for slip & falls on condo ice? - Lexology

A recent slip and fall case shed some light on the risks and pitfalls associated with improperly cleared snow in condo settings. Ultimately, the question in this case turned on the delay in applying road salt in the parking lot. Time to review your snow removal contracts.

Facts

In the midst of the season’s first snowstorm, a condo owner fell on a slippery area in the roadway outside of this condo, as he was walking to his car on his way to work. With some pain he managed to get up, walk to his vehicle and drove to work. He eventually went to the hospital where he was diagnosed with an ankle fracture. He sued the condo corporation and its snow removal contractor.

The evidence showed that road salt was only applied :

• 7 hours after the snowstorm began;
• about 3.5 hours after the snow contractor arrived on site and
• 1.5 hours after the slip & fall.

The delay in applying the sale was due to the system used by the snow removal contractor. A first crew was in charge of plowing the snow but were not equipped to carry and apply salt. This was done by the boss personally, after the fact, on all 14 locations they covered, using his pick-up truck with a snow plow on the front and a salt spreader on the back.

The question ultimately was whether these delays in applying salt are consistent with a reasonable standard of care required of a commercial snow removal contractor in the circumstances.

When questioned, the snow removal principal indicated that he had learned the business “on the job” from subcontracting snow removal for others. He had never taken any formal training, was dismissive of the existence of any “real science or useful guidelines” surrounding the application of road salt as part of winter road maintenance and was instead of the view that these matter are better addressed by “experience, common sense, hard work and rapid on the ground decision making as the weather situation unfolded”. He rejected the suggestion that pre-salting surfaces was useful as you ended up plowing away that salt with the snow.

The law

In this case, the condo corporation had entirely delegated to the snow contractor the winter maintenance obligations and responsibilities. The snow contractor received virtually no direction from condo management and he therefore exercised his own judgement in carrying out his role. He ultimately was the one deciding when he needed to attend the property and how to manage snow removal and ice conditions.

As a result of this, the snow removal contractor (and not the condo) was deemed to be the occupier of the common element property under the Occupiers Liability Act.

Under this legislation:

• an occupier is the “person who has responsibility for and control over the condition of premises or the activities there carried on”;

• The occupier is responsible to take reasonable steps to ensure the reasonable safety of those on the premises.

Question before the judge

The central issue in this case is whether the contractor applied road salt to the driveway and parking areas in a sufficiently timely way to avoid or mitigate the formation of icy conditions that would put the residents at risk of injury through slipping and falling.

The science of snow removal

An expert testified on the science behind snow removal:

• Plowing snow with heavy equipment compresses a thin layer of snow and creates a slippery film on the road – especially when you go back and forth with front loaders, for example;

• Pre-salting is a proactive approach involving applying the salt before the storm arrives to prevent a bond from forming between the pavement and the snow and ice when the storm starts. Alternatively, salt application is required concurrently or immediately after the snow is removed;

• Salt/grit should be applied immediately after the initial snow removal activities. A good way of doing this is to have a salt spreader on the rear of the vehicle as the plowing is done or at least spread the salt immediately after the snow is cleared, before the ice/pavement bond sets in.

Decision

The court concluded that the snow contractor had not met the required standard of care:

[42] The delay in applying road salt was due to an inherent problem in the contractor’s system, which involved Mr. Mitchell personally handling the salt application from his vehicle once he was able to arrive on site. He had to deal with some 14 properties spread around the city, which made a timely application of road salt to be hit and miss, at best. His failure to delegate salting to his plow operators was problematic as was his taking on a large number of client properties resulted in his operation being very overstretched when road salt applications were needed.

Lessons learned

There are a couple of lessons here. You may want to make sure that :

• You retain a professional, well established and experienced snow contractor (and one properly insured);

• They have the resources and capacity to handle the number of properties they have taken on (this one appeared to have been stretched thin with the 14 properties they were looking after);

• They attend your property early enough (in this case, they arrived on site at 7:30; 3 hours after the snow storm started and well within traffic hours);

• Their snow removal protocol meets industry standards (in this case, having the salting done after the fact by a single truck was not adequate);

• Your snow contract properly contains adequate indemnification provisions;

• Someone keeps an eye on your sidewalks, driveways, parking and make sure to have accessible salt bins on location.

You can read the decision here,