A Reasonable Standard of Care for Commercial Properties

Tenants, visitors and vendors who enter upon commercial properties (office buildings, retail centers, apartment communities, industrial buildings, etc.) are entitled to the presumption of safety when traversing public spaces. They should, and do, expect that the owner of that property, by making it accessible to the public, will maintain the property (parking areas, lobbies, hallways, grounds, pools and the walkways that connect these elements) to a reasonable standard of care.

Attorneys who litigate cases involving commercial landlords should be aware of the fact that there is a direct correlation between proper maintenance and risk management procedures and the risk of physical injury. In other words, poor maintenance practices increase the likelihood that someone will be injured on a property. Good maintenance practices reduce that risk.

A reasonable standard of care does exist for any given commercial property, which is dictated by a proactive, written property maintenance and risk management plan. In creating such a plan, the owner or property manager should incorporate widely available resources including those available from authorities such as the Institute of Real Estate Management (IREM®) which publishes Best Practices on its website: www.irem.org/resources.

Other industry resources for independent assessment of the adequacy of a property's maintenance and risk management procedures include the Building Owners and Managers Association (BOMA®), OSHA (https://ohsonline.com/home.aspx), ANSI (www.ansi.org) and ASHRAE (www.ashrae.org). These organizations establish standards for property managers and their contractors for things such as indoor comfort levels and recommended slip resistance of hard floor surfaces.

Planned Maintenance is Proactive Maintenance

Webster's® dictionary defines "proactive" as "Controlling a situation by making things happen or by preparing for possible future problems." The Institute of Real Estate Management or IREM® teaches property managers that proactive maintenance (maintenance designed to anticipate likely future repairs and servicing needs), is the cornerstone of achieving a reasonable standard of care for their properties.

The foundation of proactive maintenance and risk management procedures is the written property maintenance and risk management plan. Every commercial property manager should have an updated, detailed, customized property maintenance and risk management plan for every property.

Such a plan details each element at the property that must be maintained, who will be responsible for maintaining it, how often it will be maintained, and the specific maintenance protocols for that item. An example would be exterior parking lot lighting. If no plan exists for regularly scheduled inspections and maintenance of such lighting, it is likely that lights will fail and go unrepaired. This leads to one of the highest risk situations at a commercial property - poorly lit, unsafe parking lots.

But who is responsible for regularly surveying the parking lot to note any burnt out bulbs or missing fixtures or those that are likely to fail soon? That duty must be assigned in the property maintenance and risk management plan for the property.

Properly created and administered, the customized property maintenance and risk management plan ensures that regularly scheduled cleaning and repair of a property's equipment and common areas will occur before a problem exists. The lack of such a plan is red flag that maintenance at that property may be lacking.

Inspections and Follow-up

It is not sufficient to have a proactive property maintenance and risk management plan that sits on a shelf and gathers dust. To be an effective tool, the property manager should use that plan to guide maintenance and risk management operations on a daily basis. The proactive property manager will perform regular inspections, note deficiencies, assign work to be completed and then follow up to ensure that corrections were made.

Whether the property owner or manager has chosen to hire "in-house" maintenance personnel to perform regular cleaning and maintenance of the common areas of a property, or these services have been "out-sourced" to a qualified third party contractor, there is a reasonable expectation by the visiting public and tenants that such maintenance is occurring regularly and that public areas are safe.

Outsourcing the management of properties to a third party management company does not guarantee that the owner will found free of liability for the negligent practices of the management company. The owner must still exercise reasonable supervision of the management company and insist that a proper paper trail is created by the manager of inspections and follow up action related thereto. A review of the monthly property report created by the property manager for the owner will quickly reveal whether the manager has been diligent about preventative and corrective maintenance. It may also reveal that the owner has been negligent in approving needed repairs and corrections.

A proper maintenance and risk management program must include specific, detailed policies and procedures for each area of the property and each element within those areas. For instance, the policies for maintenance of a stone floor in the public lobby of an office building should state that the floor will be inspected at the beginning of each shift and then again each hour. Any spills discovered should be immediately cordoned off to block pedestrian access, then cleaned up using proper tools, leaving a dry, non-slippery surface. Such inspections should be documented, including conditions found and corrective actions taken.

The policy should state that the building's janitorial provider or in-house cleaner must prevent items from being left on the floor that might present a slip-and-fall or trip-and-fall hazard. If such hazards cannot be immediately eliminated, precautions must be taken to keep persons from that area and prevent accidents.

The specific maintenance procedures for this floor should include the periodic application of a slip resistant floor finish to make it safer. A periodic test to indicate the slip resistance of a particular floor surface (known as the Wet Static Coefficient of Friction or wet SCOF) is a recommended best practice in our industry. NFSI/ANSI has specific recommended standards for testing methods and slip coefficients known as ANSI/NFSI B1011-2009 national standard. See OSHA's web site: (https://ohsonline.com/Articles/2011/09/01/The-New-B101.1-Floor-Safety-Standard.aspx)

All such policies, procedures and maintenance should be properly documented in sufficient detail to allow a third party (including the trier of fact in a court of law) to easily verify that the Property Manager is taking reasonable and appropriate measures to prevent an injury.

Another example of an item that is often the cause of successful liability injury claims is the apartment complex swimming pool. Many multi-unit housing complexes have a swimming pool or spa as a valuable amenity which allows the Property Manager and marketing agent to keep the units rented. Such amenities require a whole host of precautionary measures by the owner or manager to ensure safety.

First, because such amenities are a magnet to young people, most areas of the country require a fence around the pool or spa with a self-closing gate to keep curious, unattended youngsters out of the water. Tragic consequences often occur when such simple precautions are not taken. But does the responsibility for the safety of such amenities end with the installation of such a fence and gate? The obvious answer is "No".

The fencing and gates must be regularly inspected and maintained as needed to ensure that these items work as intended. This too goes for the signage that should be posted in obvious places warning people that no lifeguard is on duty, advising of the depth of the pool, etc. What about life preservers? If required, these items must also be inspected and repaired/replaced as needed. And again, such inspections and maintenance must be properly documented, creating a paper trail that evidences the reasonable and industry standard procedures that are regularly occurring.

The performance of regular, documented inspections by a trained eye is first and foremost in the process of effectively managing risk. IREM's ® professional designation courses stress that the first responsibility of property management and maintenance professionals is to perform regular, comprehensive inspections of the property and to document those inspections with written checklists.

Such inspections are the only reliable way to ensure that proper preventative and corrective maintenance is occurring as outlined in the property maintenance and risk management plan. During these inspections, such items as burned out lights, a wet or slippery floor, trip hazards such as potholes or broken bumper stops, missing warning signs, or items left in the path of travel can and should be discovered in a reasonable period of time. These items should be noted on the inspection reports and action taken immediately to remove the hazard or warn pedestrians to avoid it.

A lack of regular, documented inspections is a sure indicator of poor maintenance and risk management procedures. Similarly, if a pattern presents itself of the manager repeatedly pointing out a needed correction on the inspection reports or owner's monthly report and no approvals are being given to correct the situation, this could be a sign of negligence.

In order to determine if a property's risk management procedures are adequate to meet the standard of reasonable care, a forensic examination should be made of the records related to maintenance and inspection of the property. At a minimum, this should include the written property maintenance and risk management plan, the property manager's written inspection records, work orders related to maintenance of the subject area or equipment (including tenant repair or maintenance requests) and any incident reports for prior incidents of a similar type.

A pattern can often be seen in these records pointing to frequent reports of a similar nature such as a number of work orders for lights out in a parking lot wherein a tenant complains that employees are having to cross dark areas in the evening to get to their cars. This may be the result of negligence by the manager in addressing these issues. Tenant interviews can also establish the existence of such a pattern.

In addition to a lack of documented inspections and follow-up corrective actions, other red flags indicative of sub-standard maintenance procedures include untrained or poorly trained maintenance workers, a lack of adequate maintenance equipment and supplies and inadequate or non-existent job descriptions. The absence of written schedules and work order systems for in-house maintenance personnel may point to a lack of proper maintenance.

Similarly, third party maintenance contractors should have written contracts in place which include a definitive, written scope of work that details what maintenance is to occur, how frequently it is to occur and what safety precautions the contractor is to follow (such as placing barricades and warning signs around a freshly waxed floor). These contracts should be included in discovery requests.

The key is the proactive nature of such policies and procedures. Properly trained, proactive owners and property managers do not wait for an accident to happen or a system to fail before taking action. Rather, they anticipate what can reasonably be expected to happen, based on experience and training, and they take action in advance to prevent an unfortunate outcome.

For instance, if an inspection reveals a concrete walkway with a lifted edge (common when tree roots or ground settlement raises one edge of a concrete pad), the proactive manager will immediately cordon off that area with a highly visible barrier, warning pedestrians of the hazard. He or she will then document that hazard and the actions taken and then very shortly thereafter, get someone to fix the hazard before someone trips on it. He or she will also take steps to make sure that until the hazard is removed, the barrier is inspected often and someone verifies that it remains in place and protects against accidents.

Here is a list of items that frequently get overlooked by negligent property managers:

1. Exterior Areas:

a. Parking lot lighting - is it adequate and is there a procedure in place to survey the lot in dark conditions on a regular basis and get lights replaced?

b. Signage - of particular concern are traffic safety signs including speed limit signs and speed bumps, Stop signs, Stop lines, pedestrian crosswalks and warning signs.

c. Condition of hardscaped surfaces - constant attention must be paid to the condition of asphalt, concrete and other hardscaped areas in parking lots and on walkways connecting buildings. When a slip or trip and fall hazard is discovered, it must be fixed immediately or the area cordoned off effectively. This includes adequate clearing of snow and ice where present.

2. Interior Areas:

a. Entrances - doorways, thresholds and walkways must be kept clean, dry and safe. Of particular concern are wet conditions created by rain, snow or ice inside lobbies or other ground floor areas. Walk off mats (correctly deployed and maintained) should be used along with high visibility warning signs to notify the public.

b. Stairs - If stairs are covered with stone, tile or other slippery surfaces, precautions must be taken to make them safe to use. Non-slip treads, carpeting and other covering should be used to prevent accidents.

c. Restrooms - frequent, documented inspections of public restrooms must be conducted to ensure that puddles and spills are cleaned up correctly and immediately. If immediate correction is not possible, the unsafe area must be cordoned off to keep the public from crossing that area.

These precautions will not prevent someone from missing the highly visible barrier and tripping on the raised edge. "Stuff" happens. But the reasonable and proactive steps taken by the property manager, coupled with his/her written inspection results and immediate action to erect a barrier to protect the public, will give the property owner and manager a viable defense should an injury occur and a claim be filed.

In conclusion, a reasonable standard of care for any commercial property is all about having a proactive approach to maintenance and risk management. Those property owners and managers that follow such an approach, including having a written, property-specific plan for inspecting and maintaining every element of the property and for following up immediately when hazards are discovered are the ones that are least likely to be on the wrong end of a liability judgement.

On the other hand, owners or managers that inspect their commercial properties only occasionally and who make repairs as a reactive measure only after an incident occurs, are negligent in their duty to the public and will more often be found negligent in achieving a reasonable standard of care.