Spelling Out Who's Responsible for Ice Removal in Common Areas

Q: I’m a first-time shopping center owner in a northern state where snow and ice is prevalent in the winter. I’m afraid that if shoppers slip and fall in the common areas outside tenants’ stores, they’ll sue me. If my leases make me responsible for plowing and shoveling common areas of the center, does that mean tenants won’t have any liability for accidents that occur right outside their doors? How can I assign some responsibility for common area snow removal to my tenants?

A: A New Jersey case that was decided in the last year highlights the importance of spelling out just who has responsibility for ice removal. There, a grocery store customer who slipped and fell on ice in the strip mall’s parking lot sued the grocery store tenant, the center’s owner, and the snow-removal contractor and subcontractor for her injuries. She asserted that they all had a duty of care to keep the parking lot free of ice that posed a danger to customers. All four parties asked a trial court for a judgment in their favor without a trial, and a trial court ruled in their favor. The customer appealed. A New Jersey appeals court upheld the trial court’s decision.

The appeals court noted that the common area maintenance agreement between the tenant and owner clearly provided that the owner would provide snow and ice removal services for the common areas of the center, including the parking lot. But the customer argued that store employees throwing rock salt on the black ice after the accident indicated that the tenant was partly responsible for maintaining safe conditions.

The appeals court disagreed. It called on a past case, where a tenant being sued over an accident was in a multi-tenant shopping center and the property owner retained the responsibility to maintain the common areas, to support its decision that the tenant here did not owe a duty to the customer to maintain the common areas of the shopping center. In that case, the appeals court held that “the assignment of responsibilities in a lease, within the context of a multi-tenant shopping center, has an impact upon the scope of a tenant’s ability to address conditions in the center’s parking lot.”

The appeals court stressed that there would be serious policy considerations implicated by imposing a duty on a commercial tenant to maintain common areas—for example, that duplicative maintenance efforts by landlords and tenants would create confusion and interference with each other’s maintenance programs. The appeals court also noted that uncertainty regarding the areas in the shopping center that each tenant would be responsible to maintain would encourage “shotgun” litigation.

Moreover, in other past cases, courts that have applied New Jersey law to similar situations have held that a commercial tenant in a multi-tenant shopping center did not have a duty to remove snow and ice from a common parking lot. “New Jersey would not impose a duty on an individual tenant for snow removal from the common areas of a multi-tenant parking lot when the landlord has retained and exercised that responsibility,” it concluded. The appeals court here couldn’t point to any facts that would justify imposing a duty of care upon the tenant to maintain the parking lot of the shopping center [Spano v. Supervalu, Inc., d/b/a Acme Markets, et al., July 2016].

In holding that the grocery store tenant wasn’t liable for injuries suffered by a customer who slipped on ice in a strip mall’s common parking lot, the appeals court dramatized the importance of “clearly allocating in a lease the parties’ snow and ice removal responsibilities.” When you’re drafting your leases, remember that to effectively shift upon the tenant the duty to remove snow and ice from a common parking lot in a multi-tenant shopping center, the lease should expressly: (a) require the tenant to assume the duty; (b) release the landlord from that duty; (c) obligate the tenant to indemnify the landlord from all snow and ice removal-related claims; and (d) mandate that the tenant carry a broad form liability insurance policy that adequately protects the landlord. 

Furthermore, the lease should include detailed performance specifications describing with specificity the scope and frequency of the tenant’s snow and ice removal protocols. For instance, the lease could explicitly obligate the tenant to: (1) clear falling snow as often as necessary to avoid accumulations in excess of 2 inches; and (2) apply a named brand of ice-melting rock salt of a designated grade and in a quantity not below a fixed amount per square foot of pavement. The lease could also require that the tenant engage only a licensed, reputable, and experienced contractor that specializes in commercial property snow and ice removal and that is satisfactory in all respects to landlord. In addition, it would be prudent for a landlord to require that the tenant provide annually a current, complete, and accurate copy of the fully executed service agreement evidencing that the tenant has in fact retained a snow and ice removal contractor acceptable to the landlord. 

By undertaking measures such as these and memorializing them in a lease, you can ensure that the tenant bears the responsibility of snow and ice removal as well as the liability for any dereliction of this duty.