Winter is upon us, meaning that people are out in droves shopping for those last-minute gifts, snagging the ingredients for their famous rhubarb pie, and traipsing through overpriced light displays. It is also time to get out your (pet friendly) salt and that old back breaking shovel. In a prior blog post, we wrote about a landowner’s duty to repair public sidewalks and curbs, which you can read here. But, here, we will discuss a business’ duty to maintain a “safe” Common Area with respect to snow and ice.
Your duty to remove icy impediments from your public sidewalk will be largely affected by your status as the landowner or a commercial tenant. Either way, the first thing that you will want to do is consult your lease agreement. Oftentimes, commercial lease agreements contain language setting out who is responsible for maintenance in the Common Area. The lease agreement should define the Common Area. In the context of a strip mall for instance, the Common Area often includes parking lots, driveways, and sidewalks. If you are a commercial tenant and your lease explicitly states that your landlord is responsible for maintenance of that sidewalk, then it is unlikely that you would bear liability for incidents involving that Common Area. However, determining potential liability would require a careful analysis of the individual commercial lease agreement.
If you are the landowner, the question of your duty to remove snow and ice becomes a bit more complicated. Missouri has adopted the Massachusetts Rule, which imposes “no duty to remove snow or ice that accumulates naturally and is a condition general to the community.” See O’Donnell v. PNK (River City), LLC 619 S.W.3d 162 (Mo. App. E.D. 2021). Furthermore, Missouri courts have held “a property owner does not have a duty to remove from its open-air parking lot, freezing rain, sleet, or snow, as it is falling” and “[t]o hold that a duty exists to make a parking lot safe as precipitation falls from the sky would be to create a duty which would be virtually impossible to perform.” See Milford v. May Department Stores, 761 S.W.2d 553 (Mo. App. E.D. 1988). However, Missouri courts have found exceptions to the Massachusetts Rule exist where the landowner voluntarily assumed the duty to remove snow or ice either by agreement or course of conduct over a period of time. See Otterman v. Harold’s Supermarkets, Inc., 65 S.W.3d 553 (Mo. App. W.D. 2001).
With respect to the course of conduct exception, Missouri courts have held that landowners must take some willful action to alter the condition of the snow or ice on its premises in order to be duty bound to wintery hazards. In other words, spreading salt, shoveling, scraping, or plowing any of your premises may make you liable for injuries related to the icy conditions of your premises.
The second exception, the assumption of duty by agreement, exists where one obligates themselves to remove the snow or ice via contract. However, the existence of a snow removal policy alone is not enough. See Richey v. DP Props., LP 252 S.W.3d 249 (Mo. App. E.D. 2008). The language of the lease agreement or snow removal contract would dictate whether or not a duty to plow or remove ice is owed. For example, if the contract simply states that “Landlord will contact Joe’s Snow Plow to remove snow and ice from the parking lot when there are two inches of accumulation,” Landlord is not contractually bound to remove ice unless there are two inches of accumulation. Of course, this may still be left to a court’s interpretation.
In conclusion, if you are a landowner or a commercial tenant, your lease agreement is king when it comes to determining duty combat wintery hazards in the Common Area. If you are unsure about your duties in this respect, do not hesitate to reach out to one of our many ice hating attorneys for their help in assessing your situation.
Article written by Associate Attorney William Kernell | Gausnell, O’Keefe & Thomas