Avoiding Liability Related to Removal of Snow and Ice in New York: An Introduction for Commercial Property Owners and Landlords

by Bryan Lane Berson, Esq.

When New York winters are harsh, it can be difficult for property owners and landlords to clear snow and ice from their properties. This column discusses landlords’ common law (note 1) duties to people invited to the property (“invitees”).

New York follows the “natural accumulation rule,” which assumes that invitees will recognize certain dangers and protect themselves. Under the rule, generally, landlords do not have to remove natural accumulations of snow and ice from portions of their property that are in common use by tenants. Generally, landlords must maintain property in reasonably safe condition, warn invitees of concealed dangers, and remove artificial hazards that they have created and natural conditions that they have aggravated.

Landlords must remove rough and bumpy accumulations of snow and ice on walkways (e.g., ridges). If the landlord removed snow and ice but some patches remain, he does not have to remove them if he did not create the dangerous condition. If the patches accumulated after removal, the he would not be liable unless they were placed there through his own conduct.

Landlords should try to maintain walkways and surface areas so that they do not become unreasonably dangerous when covered by snow and ice. They should address drainage problems to prevent a hazard when snow and ice thaws and refreezes. When there is a lot of snowfall, however, even if a landlord clears it, there may not be much place to put it. They can spread salt or other substances so people can walk safely.

If landlords have notice of artificial conditions, they must remove them or warn invitees. A landlord has actual notice, when he actually knows of the hazard. He has constructive notice when he should reasonably have known about it. Whether one constructively knows something is a factual issue. It depends on the type of accumulation and how long it existed. Landlords do not have to remove natural conditions even if they have notice. Landlords can wait a reasonable length of time after a storm to begin removal.

If a court rules that the landlord was negligent, his liability can be reduced by the invitee’s own negligence. This is known as “contributory negligence.” An invitee who ignored dangerous conditions may be partially or mostly at fault.

Accident prevention and thorough record keeping can reduce exposure to liability and enable a landlord to mount a vigorous defense. Among other things, landlords should keep regular records of (1) snow and ice accumulations, (2) personnel who removed them, (3) agreements with contractors and certificates of insurance, (4) invoices and payment records, (5) work logs, and (6) accident reports.

If feasible, landlords should hire contractors who maintain liability insurance and indemnify them. Thus, if contractor creates a dangerous condition or injures someone, the contractor’s insurance would cover the risk and potential damages. Landlords should maintain their own property and casualty insurance policy as well.

By developing a maintenance plan and insuring risks, landlords can safeguard properties, attract more customers, reduce the frequency of accidents, and enhance long-term profitability. If you own commercial property or a business and you want to develop a system to avoid or need to defend against premises liability, contact my Firm. I can help.

note 1 – Courts have created common law over centuries. Legislatures pass statutes, like the Multiple Dwelling Law, which may create other duties.

About the Author:  Bryan L. Berson, Esq. is an attorney and mediator at The Berson Firm, P.C., a law firm that handles estate administration and planning, real estate, commercial transactions, and commercial litigation.  His e-mail is bberson@bersonfirm.com.  His phone number is (631) 517-1055.  Connect with The Berson Firm on Facebook and Bryan L. Berson on LinkedIn.  The firm’s website is www.bersonfirm.com.

Disclaimer:  Constructive Knowledge is published by The Berson Firm, P.C. (the “Firm”).  The information contained in this column is provided for informational purposes only.  It is not tax or legal advice on any subject matter.  No readers, clients or otherwise, should act or refrain from acting on the basis of any content without seeking appropriate legal or other professional advice with respect to one’s particular circumstances.  This column reflects a general discussion of the law in New York.  It may not accurately reflect the law of other states.  The content is general information and may not reflect current legal developments, verdicts, or settlements.  The Firm expressly disclaims all liability with respect to acts taken or not taken based on any or all content of this column.  This column is Attorney Advertising.  IRS Circular 230 Legend:  Nothing in this column is intended to be used and cannot be used to avoid U.S. federal, state, or local taxes.  It was not written to promote, market, or recommend any tax planning strategy or action.  Copyright:  All rights reserved.  No part of this publication may be reproduced without prior written consent.  Readers may share this column through, but not limited to, social networks.

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