September 15, 2019
Visnja JovanovicWinter maintenance season is just around the corner. What steps are you and your company planning to take during the winter of 2019/2020 to protect yourselves from the risk of a slip and fall lawsuit?

Slip and fall claims as a result of snow and ice are abundant. Throughout your career, it’s more likely than not that you will face a lawsuit arising out of your contractual snow maintenance duties. It seems these claims are part of the business, right? What can you do? Well, you can prepare your defence in advance. The best preparation is to keep accurate, contemporaneous, and detailed documents of your snow removal activities.

To mount a successful defence in a snow maintenance liability claim, snow contractors must be able to “demonstrate” that their actions met the standard of a reasonably prudent snow maintenance contractor. How does a court determine what a reasonable standard would be? Our courts will usually start with the contract between your company and the property owner. Did the snow contractor perform the services it agreed to perform? For the most part, snow contractors’ obligations flow from the contract. The contract is the primary source of the snow contractors’ obligations, and failure to fulfil contractual obligations will be evidence that the snow contractor failed to take reasonable care, and by doing so, breached its duty of care to the injured plaintiff. So the key here is to fulfil the terms of the contract!

In order to demonstrate to the court that the standard of care was met, proof will be required. As defence counsel, we work with snow contractors to establish proof that contractual obligations were met. In order to do this, we require proper evidence. We need written records. Paper. Records that are contemporaneous and kept as part of the usual course of business can be admitted into evidence during a trial. The key here is to make sure your workers keep good records of their work. This helps to establish that your company has fulfilled the terms of its contract.

The best snow maintenance companies will have a comprehensive record keeping system that typically includes:
  • A diary of communications from and to the owner/property manager: Communications such as emails, call-outs, special requests and/or concerns, offers to pre-salt, warnings of approaching bad weather, and reporting of damage to the owner/property manager.
  • Patrol logs: The time of the patrol, snow contractors performing the patrol, where the snow contractors walked, description of what the snow contractors observed, weather, temperature, etc.
  • Weather watch diaries: A diary kept by the person who watches the weather at the office to note weather conditions and weather patterns each day. This will take the place of having to preserve all of the documents relating to weather.
  • Snow plow logs: The time of snow removal, equipment used to remove the snow, precise location of snow removal, snow contractors performing the snow removal, weather, temperature, etc.
  • Salt logs: The time of salting, type of salt or ice-melt, amount of salt used, equipment used to spread salt, precise location of salting, snow contractors performing the salting, weather, temperature, sun/overcast/dark.
  • GPS records: Showing equipment whereabouts by time of day.
  • Hand written diaries: Snow contractors performing the salting and plowing keep hand written diaries each time they attend the site to note the state of the lot, weather conditions, any issues or deficiencies observed, information not able to fit on logs, work performed, etc.
Nobody likes doing paperwork. It may seem like extra work or an inconvenience, but these records provide invaluable evidence that may help you successfully defend a claim someday. In Hawkins v. Village Mall Shopping Centre (2006) Inc., 2015 CarswellNfld 124, the plaintiff slipped and fell in a mall parking lot that had very slippery conditions. The snow contractor kept salting, but it would freeze over quickly.

As was its practice, the snow contractor kept a log of its daily activity, including the day of the incident. The log showed that it salted the Village Mall parking lot at 4:47 a.m., 3:00 p.m., 5:30 p.m. and 8:00 p.m. The log records also showed that the parking lot was plowed by a loader.

The question in this case was, “whether the system in place for dealing with snow removal and ice control was adequate.” The court was satisfied that the snow contractor’s system disclosed a rigorous and vigilant attempt to control of the freeze-thaw-refreeze conditions as they developed. During the afternoon of the incident, the salting operator was continuously applying salt. The operator responded to the conditions, and followed the directions from their supervisor, the property owner. Even though the operator’s efforts ultimately were not effective, they were a practical response to the conditions, and that was all that reasonably could be expected.

In the circumstances, the court concluded that a system was in place that was adequate to respond to the risk and the plaintiff’s case was dismissed.

Make no mistake: snow maintenance companies who maintain accurate, contemporaneous and detailed records have the best chance of success in defending slip and fall cases. In order to avoid exposure to liability, a sound record keeping protocol is essential.
Visnja Jovanovic
Moodie Mair Walker LLP