By Francis M. Smith
The dead of winter can be a dangerous time to set foot outside, whether as a pedestrian walking from place to place or even as a driver walking to and from your car. When the calendar officially marks the first day of spring and daytime temperatures start to creep upward, everyone breathes a sigh of relief that winter is leaving – and taking its perilous slip and fall weather hazards with it! But unfortunately, the danger isn't completely behind us yet. Early spring holds its own share of slip and fall dangers that can result in serious injuries.
In winter, the danger is obvious: snow covers lawns and heaps up on curbs, and ice can glaze any walkway that property managers have been lax in maintaining. When the temperatures are well below freezing, most property owners recognize (or at least, should recognize) their responsibility to maintain clear and safe walkways. But when temperatures linger in the 40s or higher for most of the day, some of those property managers may think that the season for deicing their sidewalks and front steps has passed. The trouble, of course, is with the nighttime temperatures. As comparatively warm as the days become in late March and the beginning of April, at night it often dips down below freezing – and all that packed snow that melted during the day freezes over again on whatever surface collected the melt water. The ice that forms this way on walkways and parking lots can last well into the morning of the next day, and as it begins to melt – from the top down – a layer of water collects on top of the still-frozen surface beneath, making the half-frozen patch even more likely to cause a slip and fall accident.
Even worse, when the runoff water melts and refreezes on a surface like the asphalt of a parking lot, the danger can be practically invisible. Drivers recognize this phenomenon as "black ice", but it poses a hazard for people on foot as well. Black ice looks very much like water on the pavement (which is what it will become after a few more hours in the warm sun), so pedestrians rarely exercise the same caution in navigating their way across it as they would over a more obvious icy patch, making a slip and fall much more likely. If you've stopped wearing your winter boots because it's too warm to need them anymore, you'll have even less protection from slipping and the ensuing painful fall. These hazards may not be readily noticed by the average pedestrian, but the same hazards are readily foreseeable by the average premises owner or manager. Especially in our part of the country the melt and re-freeze cycle is extremely well recognized by property owners.
There are a few things your attorney will need to establish when helping you decide whether you have a viable legal case to pursue if you have been injured from slipping on ice on a commercial property. The courts will consider your own behavior as the injured plaintiff, and seek to determine whether you were behaving in a prudent and reasonable manner. This includes being on the property for a legitimate reason, paying appropriate attention and not engaging in obviously unsafe behavior, and otherwise exercising reasonable care for your own safety - in other words, acting like a normal pedestrian would act - because that's the kind of person who the landowner or manager KNOWS is going to be on the property.
Then the defendant's actions are considered. There are specific laws in New Jersey regarding ice accumulation and removal on commercial properties (including apartment complexes, as well as any retail establishment or other business) – the party responsible for the property has a duty to keep the walkways clear of ice, slush, or anything else that creates an unsafe condition for patrons. This is not true of owner-occupied private residences, where little or no responsibility typically exists to remove natural accumulations of ice and snow. The owner should be held liable for damages resulting from injuries sustained in a slip and fall accident on the dangerous property if it can be demonstrated that:
- the commercial owner or manager owner was aware (or should have been aware) of an unsafe condition, or
- the recurrence of an unsafe condition (like the melt and re-freeze cycle), and
- through action or inaction caused an foreseeable risk of harm to patrons or employees
If the owner or maintainer of a property has been negligent in the face of icy conditions that present a clear slip and fall hazard, or has taken steps to deice the property which have only made the hazard worse, you probably have a viable injury claim. However, each situation is unique and must be investigated and evaluated; an experienced personal injury attorney can determine whether you should proceed to make a reasonable claim for damages.
If you have been injured in a serious accident and need legal counsel, please contact me or call me at 908-233-5800 to set up a free consultation.