Monday, November 17, 2014

8 Hidden Property Risks

Identify at-risk areas of properties prior to the start of winter and substantially reduce your vulnerability to potential slip-and-fall claims. Here are eight common yet often overlooked site scenarios that contain areas of risk that you need to be aware of before an accident brings them to your attention.

What are walls telling you?

While walls may just enclose a building, they sometimes have a story to tell. In this case we have a rear wall of an office building in an industrial park. There is a block masonry wall, double exit doors, a light, a roof gutter and drainage leader located away from the doors and the walkway. There is also peeling paint and, more importantly, staining of the wall above the door. Both the peeling paint and staining are indicators of moisture trapped in the wall. Weep holes are provided in masonry walls to allow any moisture that gets into the wall a point to exit. They should not occur above an exit door. In this case, the staining above the door documented water flow that discharged from the wall directly above the exit doors. During the warmer months, this is not a problem.

The water flowed down the door and yes, during the winter, froze on the door saddle. Not enough to really be noticeable, but enough that when left untreated resulted in an unnecessary slip and fall. The fall occurred during a period of cold temperatures, but no precipitation. Apparently snow remaining on the building’s roof likely melted because of heat rising from the building, drained to the gutter with some finding its way to the leader. The roof drainage also found its way into the wall. Based on the peeling paint, the staining and the mineral buildup, this was an ongoing condition.

In this situation, the wall had something to say. Is any icy condition foreseeable? The staining above the exit doors, while subtle, should be a red flag to check the site during a rain. Did you ever think that as a snow and ice professional you would be looking at walls as part of you pre-season walk-through?

Gas Stations

If a fall occurs because of a physical condition during the winter property maintenance season, the snow professional will likely be involved. If you are concerned about your liability regarding potential for premises liability issues, gas stations represent one facility type with many challenges to the snow professional.

Snow industry consultant John Allin notes in his book “Managing Snow and Ice” that gas stations are higher risk because of fill caps that are higher than the surface. Most gas stations have sloped rings that allow the plow to ride over the filler cap. Aside from the additional wear and tear on your plow, this situation leaves residual snow adjacent to the filler caps.

This is only one of the challenges of gas stations. The transition between the concrete pavement of the pump area and the adjacent asphalt represents another potential liability concern. If there is a difference in elevation between the two materials, the resulting uneven surface poses a liability concern. The condition becomes more critical where it is concealed by snow.

Another issue involves the “dog bone”-shaped pump islands found at some gas stations that make clearing snow difficult requiring significant handwork. Because this is also an area where drivers wishing to fill their vehicles stand, it becomes especially critical in terms of quality control.

Oil deposits and build up on the pavement are another challenge. This condition may be slippery by itself. The addition of snow, ice or melt water will exacerbate the potential hazard.

It seems ironic that many contemporary gas stations have a canopy over the pump area only to discharge the collected storm drainage onto the area below at the pump islands that the canopy was there to protect. Some canopies over the pump islands drain onto or through the pump islands’ curbs onto the concrete pavement underneath where patrons are expected to stand. The situation becomes more complicated because melting, drainage and the subsequent re-freezing is not entirely predictable, due to the lights under the canopy warming the canopy surface above. The resulting drainage, discharged onto a shaded, cold surface will create icy walkway conditions, unless adequately addressed and regularly maintained.

But alas, there it is. This is only a general list. Each individual gas station may have additional concerns. Are any of these conditions the responsibility of the snow professional? They represent discussion points with the owner/property manager regarding responsibility and liability.

Sidewalk strategy

To some, everything normally seen on a site can represent a potential safety concern. The unfortunate reality is this is true. In fact, there are many areas of concern, but you cannot manage the risks without first identifying and understanding them.

Sidewalks are no exception. Consider spalling of concrete sidewalks. While concrete spalling does result from the misapplication of melting materials, it can also be an inherited maintenance concern for snow removal professionals. Past concrete sidewalk damage, such as spalling, along with tilting slabs, on designated pedestrian walkways represent premises liability concerns by themselves. The collection of mud in low lying areas exacerbates the potential for a slip. This concern further exacerbated during the winter months when collected drainage freezes or when a muddy condition is concealed by snow, increasing the potential for an unexpected slip, injury and possibly a lawsuit.

One risk management strategy for winter property maintenance sidewalk work is avoiding sidewalk work altogether. This is not always possible. Where sidewalk work cannot be avoided or where the snow professional wishes to capitalize on sidewalk work, the risks can still be identified and managed. Areas on sidewalks where ponding occurs areas should be identified to the owner/property manager. As with parking lot deficiencies, these are easily seen right after a rain. They can also be identified by the collection of mud and debris in the area. These areas will require monitoring and follow-up applications of ice melt. If you take on the responsibility for sidewalk work, assign the appropriate resources to monitor and address the issue as needed. In those situations where the snow professional does not want the responsibility for sidewalks or is not offered that work, the contract should reflect that fact and equitably establish who is responsible for winter property maintenance work in that area and for follow-up. This provides the basis of a strong defense should an incident occur.

Look up!

We have all seen them: A roof drain that discharges directly onto a sidewalk is another of those situations that is so obvious and innocuous that they are often overlooked. Sidewalks are dedicated pedestrian paths. Along with higher pedestrian traffic comes a higher risk of a slip-and-fall accident and a lawsuit. Roof drainage onto the sidewalk may not be a problem for those property owners where the temperature is warm throughout the year, but for snow states, this drainage will freeze. The formula seems simple:

Roof drainage discharge + pedestrian sidewalk + freezing temperature – (adequate and regular treatment) = icy conditions and potential injuries.

The situation becomes more complicated because melting, drainage and the subsequent freezing are not entirely predictable and should not be assumed to be addressed if a melting agent is applied to the area of the sidewalk after the snow is removed. Because of warming from the building, the snow on the roof will melt, even when the air temperature remains below freezing.

The resulting drainage, discharged onto a shaded, cold surface will create icy walkway conditions, unless adequately addressed and regularly maintained. One would think that a sidewalk being a dedicated pedestrian walkway would not be used as part of the roof drainage system in these situations. But alas, there it is. The above image shows a sidewalk covered to provide pedestrians protection from the elements. It seems especially ironic that the roof drainage is collected and channeled into leaders which then discharge onto the exposed edge of the very sidewalk that the canopy was constructed to protect. What were they thinking?

Even when these conditions do not occur in front of an exit door, they represent a serious safety concern to pedestrians and potential liability concerns for the snow and ice control professional, as well as the owner/property manager. This drainage onto a sidewalk in areas where freezing temperatures occur is a design deficiency that not only creates a hazardous condition, but also affects the snow and ice control professional’s operations and liability.

Not only does the roof drainage discharge onto the sidewalk present a safety issue, the concentrated drainage discharge will also dilute and wash away ice melting materials applied to the sidewalk after it was cleared of snow.

These conditions pose a challenge and an opportunity to the snow and ice control professional to manage and control their risks associated with personal injuries. The condition is a design deficiency and not necessarily the responsibility of the snow and ice control professional, unless they chose not to address the concern with the property manager and assume the risks. The condition also potentially provides additional work for those firms that offer ice watch services. Identifying this situation and bringing it to the property manager’s attention – preferably in writing – allows the snow and ice control professional to not only manage their risk and control the likelihood of being will be drawn into a lawsuit, but potentially address a hazardous situation before someone is hurt.

Heavy metal hazards

Here's another example of questionable design where metal components are placed in a dedicated masonry pedestrian walkway. These components include metal plates, grates and utility covers. But isn’t this is a common situation that you see all of the time? That’s true, but it does not make it right or reasonably safe during the winter months. While accepted and all too common, like glass, these metal components do represent potential slip-and-fall liability for a snow removal professional if an injury occurs.

Even dry there may be noticeable difference between a worn smooth metal cover and the adjacent concrete. When wet the metal part of the walkway, like glass, will be more slippery than the adjacent concrete or brick. In snow country, water on the metal components will likely freeze faster than on the concrete or brick. These metal components may not be level with the adjacent sidewalk. If higher than the adjacent concrete, they present concerns about tripping, their effects on snow removal and potential equipment damage. If they are lower, any residual snow and ice left on the metal becomes a slip concern.

Even if the components are level with the adjacent masonry, what happens if there is only a dusting of snow that is not enough to trigger the involvement of the snow professional to plow or shovel, but is enough to conceal the metal component? An unexpected change in walkway surface slip resistance is a common cause of pedestrian falls. An unwary pedestrian who adjusts to and has no problem negotiating the snow-covered concrete may unexpectedly encounter a markedly different resistance on the snow-covered metal.

So who is going to be responsible for these conditions that pedestrians may encounter in winter weather conditions? Since the snow professional is likely to be involved in almost any slip-and-fall related to winter maintenance, if you come across this situation and you still want to do the sidewalk work, you may consider a contract clause addressing the responsibilities for this potential winter hazard and/or justification for additional services.

Pavement Depressions

A recent column discussed birdbaths. Sometimes deeper asphalt pavement depressions form localized conditions due to inadequate compaction of the pavement sub-base, recent utility work or the weight of vehicles.

Like birdbaths, these pavement depressions will collect and hold water which outwardly poses more of an inconvenience than a pedestrian hazard during the warmer months and rarely gets a second thought. It’s just a puddle.

Like birdbaths, these localized areas of collected water will freeze during the winter months in northern climates. Snow on top of pavement will conceal the presence of any ice creating an unexpected slippery condition on the pavement.

Unlike birdbaths, these depressions will typically have steep edges that pose a potential pedestrian hazard by themselves. Pedestrians who unexpectedly step on the steep edge may lose their balance and fall.

If someone unexpectedly steps on the ice or even on the edge of the snow covered depression, they will likely associate a resulting loss of balance, fall and injury with the winter property maintenance and attribute blame to the property manager and the snow removal professional.

The maintenance of these parking lot surface depressions is typically the responsibility of the owner/property manager and outside the responsibility of the snow removal professional.

Snow removal professionals routinely identify site items such as fire hydrants and curbed island ends to prevent liability for damage in snow removal operations.

Why not identify and address pavement depressions that may contribute to your liability before it causes a pedestrian injury?

While these pavement depressions may be noticeable under dry conditions, because of the steepness of the edges and the collection of fines in the depression, like bird baths they are more easily and clearly identified and documented during a site inspection after a rain.

Patch ponding

Surface repairs can change the surface drainage. The asphalt patching impeded the drainage flow resulting in a condition where water collects along the edge of the patch.

As with birdbaths, which form as a result of settlement due to inadequate compaction of the material under an asphalt surface, contractors may not think much about such issues during the warmer months, because it’s only water. During the winter months this ponded water has the potential to be ice. If not continuously treated, this ice can cause a slip and fall injury which may result in a lawsuit.

This example is from a recent investigation. In addition to the drainage issues the site already had, such as the surface drainage to a grate in a marked pedestrian walkway for the physically disabled, the surface drainage was altered when a utility was installed across the parking lot. This created a condition where the drainage was changed and ponding occurred where the asphalt was cut, trenched and patched. This just happened to occur in a foreseeable pedestrian path. This ponding will form ice during the winter months. If not continuously monitored and treated, the condition can cause a slip-and-fall injury which may result in a lawsuit.

Here is another opportunity for the professional snow and ice manager to control their liability exposure to a potential slip-and-fall incident. The drainage condition and the winter risks to pedestrians are identifiable and manageable.

As with birdbaths and other drainage issues, you might wish to consider identifying them with the owner/property manager (O/PM) to decide and equitably allocate the responsibility for continued monitoring and treatment during the winter months. Whether you opt for taking on the responsibility of an ice watch program or to contractually-define the terms having the O/PM inspect the site and call the snow professional on an as-needed basis, you can manage the potential risk should an injury and lawsuit occur.

Walk’n in the rain

Most people do not spend much time looking up while they’re walking around.

When we do, common building components – such as gutters and leaders – typically do not grab our attention. Gutters and leaders are placed on buildings to collect and control roof drainage. They are at the top of a building and are sometimes difficult to see.

They are mundane, boring and typically not a problem. Despite being installed correctly, sometimes these building components become disconnected or, perhaps because of blockage, will cause the system to leak. When this happens, the roof drainage is no longer controlled.

Even when this drainage discharge leaks onto a pedestrian walkway it is not always viewed as a problem. During the warmer months it is commonly overlooked. The discharge blends in with the already wet surface it rarely gets a second thought.

After all, it is only water. This discharge of roof drainage from a leaking gutter or leader is a property maintenance issue beyond the scope of the snow professional’s work. It is someone else’s problem. Or is it?

If this drainage freezes on a pedestrian walkway and is left untreated or inadequately treated, it is a condition that may cause an injury and a potential lawsuit.

A preseason site visit allows for the identification of conditions and obstructions on the site that may impact the snow professional’s work before having to deal with them in the rush to clear the first snow fall. Few people enjoy spending their time out in the elements. However, leaking gutters and leaders, as well as some of the other building components addressed in earlier columns, can best be seen in the rain.

Documenting and reporting the condition provides the snow professional with an opportunity to address any concerns about who is going to be responsible for the condition with the owner/property manager before it causes ice which may result in a pedestrian slip.

Hopefully, the conversation will get the condition repaired before it can cause a problem. This not only shows professionalism, but also provides a documented basis to minimize any involvement in a lawsuit should someone get hurt because of the condition.

If you are diligent about controlling your liability and managing the risks inherent to the snow and ice management, then perhaps a seasonal walk in the rain is a good idea.

1 comment:

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