Legal Alert – New Court of Appeal Judgment on Liability for Falling Ice and Snow Clarifies The Position of a Property Owner
In a recent case heard by the Court of Appeal of Helsinki, a property maintenance companys CEO was being charged with negligent manslaughter after an elderly man was killed by a block of icy snow falling from the roof of an apartment building. The prosecution held that the defendant had acted negligently, since the company and the property owner had agreed in the maintenance agreement that the company shall be responsible for observing the amount of snow piling up on the roof, and for cordoning off dangerous parts of the pavement as necessary, in order to prevent such accidents from happening. According to the agreement, the company was responsible for surveying the situation during weekdays between 7 am and 4 pm. There was no specific provision in the agreement stating that the surveillance should have been conducted at the roof. Thus, the Court of Appeal held, unlike the District Court of Helsinki, that it was sufficient to make observations regarding the amount of snow from the street level.
The defendant had visited the property two days before the accident, and again on the day of the accident. There were no visible signs of ice or snow on the roof at that time. This conclusion, which turned out to be decisive for the case, was backed-up by an eye witness. In addition, only twelve days had passed since the last snow clearance work on the roof had been performed. Due to recent changes in temperature, the defendant had, however, placed barriers on the pavement, as a precautionary measure in order to prevent pedestrians from walking on the hazardous area, two days before the accident. The barriers were still in place at the time of the accident, which quite unfortunately happened outside the marked area, despite the barriers.
The Court of Appeal referred to the Finnish Supreme Court ruling (KKO 2007:62) according to which the property owners responsibility for the safety of the people using the property can be transferred by way of agreement to a property maintenance company or other such actor who has sufficient ability to take care of the assignment. In the present case, the responsibility for controlling the amount of snow on the roof had been transferred from the property owner to the defendants company. According to the Court, the defendant had acted diligently in performing this duty; it had been impossible for him to notice the snow on the roof even on the very day of the incident. The defendant could not have done anything more to prevent the accident. Since there was no negligence on the defendants side, all charges were dropped.
The Court of Appeal judgment confirms the conclusion put forward in the above-mentioned Supreme Court ruling and, thus, it clarifies the position of a property owner; the responsibility for the safety of the people using the property can be transferred to a party other than the owner, as long as the transfer is done clearly and explicitly. On the other hand, the new ruling indicates that the responsibility for safety does not mean an obligation to maintain complicated or expensive maintenance arrangements.
When drafting maintenance agreements between property owners and property maintenance companies, it is advisable to draw up detailed and comprehensive agreements in order to avoid any ambiguity as to the question who is responsible for each separate task to be performed. There is no need for a round-the-clock surveillance of the property, or in the case of falling ice and snow, having someone up on the roof on a regular basis if surveillance measures can also be carried out from the street, as long as the safety issues are taken into consideration in a sufficient and reasonable manner.
The main rule is that a property owner is liable for damages if it neglects to ensure that the building and its surroundings are safe for those using the property. In order to avoid liability, the property owner shall be able to demonstrate that it has acted diligently in performing this duty.
The judgment of the Court of Appeal can be appealed until April 2013.
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