Flurries with a Chance of Slip and Falls: Best Practices for Business Owners to Avoid Liability 

March 7, 2022

The presence of ice during the winter in New Brunswick is not unusual. Neither are slip and falls. Every year, business owners run the risk that an individual might slip and fall on their property, suffer an injury, and bring a legal action against them, as the owner of the property, for damages. These damages could include damages for pain and suffering, medical expenses, income loss as well as other expenses.

While the law surrounding slip and falls during the winter months in New Brunswick has developed to recognize that certain conditions will occur despite the vigilance of business owners in coping with the changing weather conditions, if your business does not have a proper system of maintenance and inspection, you are at risk of being found liable.

The courts in New Brunswick have recognized that business owners have a duty to protect their customers from slip and fall injuries. There is a duty on business owners to take reasonable care that their customers are reasonably safe from injury while walking on their premises. What exactly needs to be done will depend on the circumstances. The test is not whether there are slippery or icy conditions.  Rather, the relevant question is what steps have been implemented toward maintenance and inspection to address the winter conditions that will inevitably develop.

In Whelton v. A & B Deschenes Sales Ltd., 2012 NBQB 294, Justice Deware, now Chief Justice of the Court of Queen’s Bench wrote that:

If a [business owner] can demonstrate that they do have an established maintenance and inspection system that was in place at the time a slip and fall occurred, they are in a position to successfully defend a claim in negligence for such an occurrence despite the presence of ice or other weather-related conditions.

In Brown v. Beresford, 2009 NBQB 302, the court found that the fact that there may have been a patch of ice, causing someone to slip and fall, was not sufficient in itself to conclude that there was a breach by the owners. The court wrote that “to require from an [owner] the removal of every patch of ice on the walkway or sidewalk in northern New Brunswick in the wintertime would be imposing on the [owner] an unreasonable standard”. Therefore, as long as there is a reasonable system of maintenance and inspection, business owners will avoid liability for slip and fall injuries.

Throughout the years, New Brunswick courts have imposed a greater duty on owners with respect to areas reserved for walking as opposed to parking lots. In Francis v. IPCF Properties Inc. (1993), 136 N.B.R. (2d) 215, the Court of Queen’s Bench explained that the nature of parking lots in the winter in New Brunswick is such that it is inevitable that various patches of ice, icy slopes of compacted snow and other similar hazards would be present. The court added that to remove all snow and ice would create an unreasonably high standard on owners of parking lots.

In Bourque v. Fraser’s Convenience Inc., 2005 NBQB 35, a customer slipped and fell as she was entering a convenience store. The entrance to the convenience store was about 20 feet from the sidewalk. The asphalt parking lot went right to the door such that there was no clear delineation between the parking lot and the entrance. In addition to finding that the owner did not have a clear system in place to maintain the entrance during wintertime, the court stressed that there will be a greater duty on owners with respect to areas reserved for walking, such as the entrance where the customer fell, and a lesser duty with respect to parking lots reserved for vehicles. Nonetheless, a lower standard for parking lots does not mean that business owners should not have a system of maintenance and inspection for that area.  Rather, courts might be more lenient toward owners in cases where a slip and fall occurs on the portion of their property traveled by motor vehicles.

Below is a list of best practices to maintain a proper system of maintenance and inspection:

  1. Keep parking lots and walkways clear of snow and ice;
  2. Adopt an internal Slip and Fall Prevention Policy for prompt removal of snow and ice;
  3. Adopt a regular inspection schedule of the property;
  4. Keep a log of each inspection detailing the condition of the property and measures taken to deal with the snow and ice;
  5. Provide training to employees on procedures aiming to prevent slip and falls;
  6. Keep de-icing salt and sand on your property at all times during the winter months;
  7. Provide good lighting and clear path markings in lots and walkways;
  8. If you hire a third party contractor, ensure that your contract clearly defines the role and responsibilities of each party;
  9. Don’t forget your employees! Ensure your employees are wearing proper footwear when applying salt and sand to protect them from injuries; and
  10. In the event of an accident, complete an incident report as soon as possible, in which the conditions immediately surrounding the site of the injury are well documented.

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