By Anita Setnor Byer
Self-storage operators are not immune to slip-and-fall liability. While the volume of foot traffic at a self-storage facility may not reach that of other types of businesses, customers must still enter the premises to store, access and retrieve their property. As a result, an exposure to this type of liability exists, and facility operators must take this risk seriously.
Slips and falls are typically caused by transitory foreign substances, meaning any liquid or solid substance or object that doesnt belong on the floor. Many believe the hazards caused by these items are more likely to occur in restaurants or grocery stores where spilled foods or beverages create dangerous conditions. However, the likelihood of transitory foreign substances shouldnt be overlooked in a self-storage setting where customers store and move various items that, if not properly cleaned, can create a dangerous condition in the common areas. Consider these scenarios:
- A tenant spills an oily substance on the floor when moving automotive parts out of his unit; another tenant then slips on that spot and falls, hurting his back.
- A tenants friend slips in a puddle of water that accumulated in the common area when another tenant propped a door open during a rainstorm and forgot to close it upon leaving.
In light of this risk, self-storage operators must know their duties under the law with regard to protecting those on their premises from hazardous conditions, as well as protecting their business against any potential lawsuits.
Follow the Law
Slip-and-fall cases are traditionally based on the principle that a business owner invites others to enter the premises for the purpose of conducting business with him. Legally speaking, this person is considered an invitee and, under common law, a business owner owes a legal duty to protect him from hazardous conditions.
The general duty can be restated in the following manner: A possessor of land (in this case, a self-storage operator) is subject to liability for physical harm caused to his invitees (tenants and visitors) by a condition on the land only if:
- He knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk to such invitees.
- He should expect that they will not discover or realize the danger, or will fail to protect themselves against it.
- He fails to exercise reasonable care to protect them against the danger.
Its important to note each states common law may have its own peculiarities with respect to defining the precise duty owed by the business owner. Additionally, some state statutes may modify not only respective duties, but methods of proving slip-and-fall cases in court.
For example, a new Florida statute provides that its the claimants obligation to prove the property owner had knowledge of the hazardous condition. This statute was enacted to legislatively overrule a Florida Supreme Court case that essentially gave claimants the benefit of a rebuttable presumption. As a result, in such jurisdictions, self-storage facilities are no longer on the hot seat in terms of overcoming negative presumptions.
In the context of a transitory foreign substance, such as leaked oil or a puddle of water that has not been cleaned up properly, its fair to assume that, in many cases, the substance will create an unreasonable risk to individuals who would not discover it unless brought to their attention, thereby typically satisfying the second element. Similarly, if the self-storage facility failed to clean up the slippery substance, or otherwise failed to warn tenants and visitors of the dangerous condition despite knowing of its existence, its fair to say the third element would also be satisfied.
That leaves the first element: Whether the self-storage operator knows of, or by the exercise of reasonable care would discover, the dangerous condition. Although proving knowledge of a hazardous condition can be problematic in some cases, the stickiest issue is usually the determination of whether the self-storage operator should have discovered the dangerous condition before it caused injury to a tenant or visitor. This issue implicates the duty to inspect the premises, which generally requires the business owner to exercise reasonable care to discover dangerous conditions.
Unfortunately, reasonable care is not a fixed concept with defined characteristics. Precisely whats considered reasonable in any given situation depends on the circumstances, so that behavior constituting reasonable care in one case may be considered negligent in another. Its this dependence on external factors that precludes a universal, one-size-fits-all approach to meeting ones duty to exercise reasonable care.
In the absence of clear-cut standards of behavior, what can a self-storage operator do to defend against slip-and-fall liability? In the context of discovering a hazardous transitory foreign substance, he may exercise reasonable care by inspecting the premises to identify and remedy any dangerous conditions. However, the extent to which the premises must be inspected depends on the particular facts and circumstances.
For example, reasonable care demands more frequent inspections of the common areas during periods of elevated activity. Similarly, areas within the facility that experience increased traffic, such as the office, should also receive increased scrutiny.
There are also other factors that may help define the extent to which the premises must be inspected. Is there a tenant with a history of handling slippery substances or not cleaning up after himself? Is there a particular time of day or year when the facility is more likely to be left in disarray? Is there an area that accumulates water or other transitory foreign substances? Answering these questions could reveal previously unidentified risks.
After considering conditions unique to your facility, including any relevant history and experience, you can make some conclusions on whats reasonable. For example, would a jury agree it was reasonable to inspect the common areas, such as the office or parking lot, twice a day or twice a month? Was it reasonable to conclude that an area with a history of flooding did not require additional inspections after a rainstorm? Was it reasonable to not require additional inspections of the area next to units occupied by tenants who routinely work on their cars?
While undertaking this secondary level of analysis will not guarantee protection against slip-and-fall liability, it can assist in the development of inspection-related policies and procedures geared toward protecting tenants and guests from any hazardous conditions which shouldve been discovered by exercising reasonable care.
Finally, once you have inspection-related policies and procedures in place, including those recommended by your attorney or required by applicable law, you need to communicate them to your staff. Supervisors must remain attentive to ensure the policies and procedures are strictly followed and documented. Employees should know their failure to follow these policies and procedures could result in disciplinary action.
Though often overlooked, self-storage facilities have a duty to exercise reasonable care to discover dangerous conditions before an injury occurs. Its in precisely this circumstance that many operators find theyve failed in their duty and, consequently, land in a courtroom. Those who fail to understand and adhere to this duty before a slip-and-fall occurs, may have to endure the unfortunate experience of having a jury decide what was overlooked afterward.
Anita Setnor Byer is president of Setnor Byer Insurance & Risk and founder of The Human Equation, a risk-management and human-resources enterprise providing online training and solutions. She has served as an independent consultant and risk-management advisor since 1997, and has authored numerous publications and training content in risk-management and human resources. To reach her, call 888.253.8498; e-mail [email protected] .