By Daniel J. Schulte
MDA Legal Counsel
Published in the January 2007 issue of the Journal
Question: Winter is here, and snow and ice are covering the sidewalks around my office. Last winter we had a number of slip and fall incidents. One involved a patient, and the others involved delivery people. Fortunately, I have not been sued — yet. What is my liability if I am sued? Would the answer be different if I were a tenant in this building instead of the owner?
Answer: There could be claim for common law negligence against you or your business entity as the owner or possessor (i.e., the tenant) of the premises. In either capacity, you have certain legal duties, depending on whether the injured person had the legal status of an invitee, licensee or trespasser.
A person who enters the premises for a business purpose is an invitee. Both your patients and delivery people would be deemed to be business visitors and fall within the classification of an invitee. The law in Michigan imposes a legal duty on you as the possessor of the premises to exercise ordinary care to protect an invitee from unreasonable risks of injury that were known to you or that should have been known to you in the exercise of ordinary care. There is a legal duty to warn an invitee, which extends to dangers that are known or should have been known to you as the owner or possessor of the premises, unless those dangers are open and obvious. Michigan law may also impose a duty on you to inspect the premises to discover possible dangerous conditions if a reasonable person would have inspected under the circumstances.
If the accumulation of snow and ice is the risk you are faced with, then your legal duty to patients and delivery people would be to take all reasonable efforts to keep the sidewalk free and clear.
A licensee is a person who, other than for a business purpose, enters the premises with the express or implied permission of the owner. Examples would be guests and other visitors. With respect to a licensee, an owner or possessor of the premises would be liable for physical harm if the owner or possessor knew or should have known of the condition and should have realized that it involved an unreasonable risk of harm to the licensee, and should have expected that the licensee would not discover or realize the danger. This liability is similar to the liability a possessor has to an invitee.
A trespasser is a person who enters the premises without an express or implied invitation, for his or her own purposes, and not in the performance of any duty to the owner or possessor. A trespasser need not have an unlawful intent. If the person was a trespasser, the possessor of the premises would have no liability if the owner or possessor did not know or in the exercise of ordinary care could not have known of the presence of the trespasser. Under these circumstances, the owner or possessor has no legal duty to either make the premises safe or warn the trespasser of conditions existing on the premises, and has no liability for injuries to the trespasser.
If you are a tenant in the premises, you need to check the terms of your lease agreement. As between you and your landlord, the lease should allocate the responsibility for the removal of snow and ice, and state who is responsible for the purchase of liability insurance that would cover these slip-and-fall incidents. The lease may also contain an indemnity and hold harmless provision requiring one party to defend and pay the costs of any litigation arising out of the incident.