In plain sight

Editor’s Note: The purpose of this article is to educate professional snow and ice managers and assist them in making informed choices about controlling liability. This is not intended to be legal advice.

Scenario 1
What are walls telling you? While walls may just enclose a building, they sometimes have a story to tell about the conditions that may affect your liability.

In this case we have a rear wall of an office building in an industrial park. There is a block masonry wall, double exit doors, a light, a roof gutter and drainage leader located away from the doors and the walkway. There is also peeling paint and, more importantly, staining of the wall above the door. Both the peeling paint and staining are indicators of moisture trapped in the wall. Weep holes are provided in masonry walls to allow any moisture that gets into the wall a point to exit. They should not occur above an exit door. In this case, the staining above the door documented water flow that discharged from the wall directly above the exit doors. During the warmer months, this is not a problem.

The water flowed down the door and yes, during the winter, froze on the door saddle. Not enough to really be noticeable, but enough that when left untreated resulted in an unnecessary slip and fall. The fall occurred during a period of cold temperatures, but no precipitation. Snow remaining on the building’s roof likely melted because of heat rising from the building, drained to the gutter with some finding its way to the leader. The roof drainage also found its way into the wall. Based on the peeling paint, the staining and the mineral buildup at the opening, this was an ongoing condition.

Is any icy condition foreseeable? The staining above the exit doors, while subtle, should be a red flag to check the site during a rain. The condition may be viewed as subtle, but it is your liability.

Scenario 2
Gas stations. If you are concerned about your liability regarding potential for premises liability issues, gas stations represent one facility type with many challenges to the snow professional.

Snow industry consultant John Allin notes in his book “Managing Snow and Ice” that gas stations are higher risk because of fill caps that are higher than the surface. Most gas stations have sloped rings that allow the plow to ride over the filler cap. Aside from the additional wear and tear on your plow, this situation leaves residual snow adjacent to the filler caps.

This is only one of the challenges of gas stations. The transition between the concrete pavement of the pump area and the adjacent asphalt represents another potential liability concern. If there is a difference in elevation between the two materials, the resulting uneven surface poses a liability concern. The condition becomes more critical where it is concealed by snow.

Another issue involves the “dog bone”-shaped pump islands found at some gas stations that make clearing snow difficult, requiring significant handwork. Because this is also an area where drivers fueling their vehicles stand, it becomes especially critical in terms of quality control.

Oil deposits and build-up on the pavement are another challenge. This condition may be slippery by itself. The addition of snow, ice or melt water will exacerbate the potential hazard. It seems ironic to me that many contemporary gas stations have a canopy over the pump area only to discharge the collected storm drainage onto the area below at the pump islands that the canopy was there to protect.

Some canopies over the pump islands drain onto or through the pump islands’ curbs onto the concrete pavement underneath where patrons are expected to stand. The situation becomes more complicated because melting, drainage and the subsequent re-freezing is not entirely predictable, due to the lights under the canopy warming the canopy surface above. The resulting drainage, discharged onto a shaded, cold surface, will create icy walkway conditions, unless adequately addressed and regularly maintained. This is only a general list. Each individual gas station may have additional concerns.

Scenario 3
Sidewalk strategy. To some, everything normally seen on a site can represent a potential safety concern. The unfortunate reality is that this is true. In fact, there are many areas of concern, but you cannot manage the risks without first identifying and understanding them.

Sidewalks are no exception. Consider spalling of concrete sidewalks. While concrete spalling does result from the misapplication of melting materials, it can also be an inherited maintenance concern for snow removal professionals. Past concrete sidewalk damage, such as spalling or tilting slabs, on designated pedestrian walkways represent premises liability concerns by themselves. The collection of mud in low-lying areas increases the potential for a slip. This concern is further exacerbated during the winter months when collected drainage freezes or when a muddy condition is concealed by snow, increasing the potential for an unexpected slip, injury and possibly a lawsuit.

One risk management strategy for winter property maintenance sidewalk work is avoiding sidewalk work altogether. This is not always possible. Where sidewalk work cannot be avoided or where the snow professional wishes to capitalize on sidewalk work, the risks can still be identified and managed. Areas on sidewalks where ponding occurs should be identified to the owner/property manager.

As with parking lot deficiencies, these are easily seen right after a rain. They can also be identified by the collection of mud and debris in the area. These areas will require monitoring and follow-up applications of ice melt. If you take on the responsibility for sidewalk work, assign the appropriate resources to monitor and address the issue as needed.

In those situations where the snow professional does not want the responsibility for sidewalks or is not offered that work, the contract should reflect that fact and equitably establish who is responsible for winter property maintenance work in that area and for follow-up. This provides the basis of a strong defense should an incident occur.

Scenario 4
Heavy metal hazards. Here’s another example of questionable design where metal components are placed in a dedicated masonry pedestrian walkway. These components include metal plates, grates and utility covers.

While accepted and all too common, like glass, these metal components do represent potential slip-and-fall liability for a snow removal professional if an injury occurs. Even dry, there may be noticeable difference between a worn smooth metal cover and the adjacent concrete. When wet, the metal part of the walkway will be more slippery than the adjacent concrete or brick. In snow country, water on the metal components will likely freeze faster than on the concrete or brick. These metal components may not be level with the adjacent sidewalk. If higher than the adjacent concrete, they present concerns about tripping, their effects on snow removal and potential equipment damage. If they are lower, any residual snow and ice left on the metal becomes a slip concern.

Even if the components are level with the adjacent masonry, what happens if there is only a dusting of snow that is not enough to trigger the involvement of the snow professional to plow or shovel, but is enough to conceal the metal component? An unexpected change in walkway surface slip resistance is a common cause of pedestrian falls. An unwary pedestrian who adjusts to and has no problem negotiating the snow-covered concrete may unexpectedly encounter a markedly different resistance on the snow-covered metal.

Since the snow professional is likely to be involved in almost any slip-and-fall related to winter maintenance, if you come across this situation and you still want to do the sidewalk work, you may consider a contract clause addressing the responsibilities for this potential winter hazard and/or justification for additional services.

Bonus risk management points to those who identified the roof drain leader on the wall lurking in the shadows. This leader discharges directly onto the sidewalk, which then flows down across the sidewalk and onto the curb ramp.

The author owns Pereira Consulting, Chadds Ford, Pa. This article was reprinted from our sister publication, Snow Magazine.

Photos courtesy of Julius Pereira III