Sidewalk Liability Not The Same Everywhere
While New York City has decided to shift the liability responsibility for its more than 12,000 miles of sidewalks off its back onto commercial property owners, it is not the same everywhere elseat least with regard to claims relating to failure to remove ice and snow.
More typically, according to an article in The St. Louis Post Dispatch in January, under the legal proposition of "general condition," the defense is that the ice and snow is an act of God and someone who is injured cannot blame the property owner for the condition. However, if the property owner clears the sidewalk, he or she can be held liable for doing an inadequate job of cleaning that resulted in the injury.
Illinois, the article said, has a Snow and Ice Removal Act protecting property owners from liability claims when they make an effort to keep their sidewalks clean.
"What holds in one jurisdiction does not hold in another," noted Alan Kaminsky, an insurance defense attorney with the law firm of Wilson, Elser, Moskowitz, Edelman & Dicker LLP, in New York City. "In some jurisdictions, an owner could be better off doing nothing than if he or she did not do it adequately."
It is a question of what law is on the books and court decisions that make the determination, he said. If the courts have ruled that the property owner has no duty to clear the sidewalk, then the owner is not liable.
There is also a question about what the property owner knew about the condition and if he or she resolved the issue in a reasonable amount of time.
"As to snow and ice conditions, if a person is injured and there were snow and ice conditions, the question arises: Did the landlord have enough time to take care of the situation," Mr. Kaminsky observed. "If the injury occurred within two hours of snowfall, then that is not enough time to take care of the situation. But if it snowed on a Monday and the accident occurred on Thursday, and the sidewalk was not cleared, then the property owner is responsible."
At trial, juries consider what is reasonable. The worse the storm, the more likely a jury will side with the property owner because the standards of liability become higher. When the landlord acts in a reasonable way to deal with the situation, often a jury will side with the property owner, Mr. Kaminsky said.
Reproduced from National Underwriter Property & Casualty/Risk & Benefits Management Edition, February 27, 2004. Copyright 2004 by The National Underwriter Company in the serial publication. All rights reserved. Copyright in this article as an independent work may be held by the author.
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