The Emergency of Liability - Culpability
Various laws govern the maintenance obligations of e.g. pavements, roadways, yards and squares. Legal praxis takes a stand on the content of the maintenance obligation liability.
The obligation to compensate usually falls on the party having caused the damage due to carelessness or negligence. In cases of accidents caused by slipping, carelessness usually means neglecting to maintain a route properly in the wintertime. In cases where negligence or carelessness cannot be established, but the damage is completely accidental, there is no liability.
Accidental damage means an accident which was not caused by anybody or which is nobody’s fault. The costs of accidental damage are covered by either the injured party or, possibly, by his or her own insurance policies (e.g. accident insurance). However, if the damage has occurred, for example, due to the property owner’s negligence in sanding the yard, the property owner is legally liable.
Emphasised Duty of Care and Burden of Proof
In Finnish legal praxis, municipalities and property owners are considered to have a so-called emphasised duty of care regarding the maintenance of routes. The liability of the party with the maintenance obligation is close to strict liability, and liability arises fairly easily.
Under tort law, the main principle is that, in order to receive compensation, the injured party must prove that someone caused the damage he or she suffered. However, it is quite difficult for a private person to prove, for example, negligence in the maintenance of a pavement. Therefore, in activities with an emphasised duty of care, the burden of proof with respect to demonstrating that maintenance was performed properly lies with the municipality or property owner, not the injured party. The property owner or municipality can be released from liability if it can prove that proper, anti-skid measures had been taken. The injured party must establish the causal connection between the slip and the damage he or she suffered.
Using a Sanding Diary
Property owners and municipalities make a lot of effort with respect to, and spend considerable amounts of money on, anti-skid measures for streets and properties. We recommend that these anti-skid measures be recorded. Sometimes a claim by an injured person is submitted long after the accident occurred. In such cases, it is best if the caretaker or municipal road master has kept a sanding diary which provides detailed information on the sanding of each street section. Diary entries are significant when considering in retrospect whether the maintenance measures were neglected and whether the property owner or municipality is liable for the damage.
A good loss-prevention measure would involve carefully examining black spots and paying special attention to their management. Black spots may include, for example, stairs, on which ice is often compacted, or the area in front of gutters, where the water running down the gutter freezes and causes a hazard. Other problematic areas can be those with heavy traffic, where the traffic abrades the sand from the road.
Liability of Maintenance Company or other Contractual Partner
The property owner often contracts out the maintenance of routes in the wintertime e.g. to a maintenance company. Since liability and obligations have been defined under law, the person suffering damage due to slipping can always claim for compensation directly from the property owner or the municipality, and the damage can be processed from the liability insurance.
However, the property owner may claim the deductible for its liability insurance or the compensation paid to the injured party from the maintenance company on the basis of breach of contract. The maintenance company is deemed as having caused the property owner financial loss by breaching the maintenance contract if the maintenance has not been performed properly. A maintenance company cannot receive compensation from any insurance for financial loss due to breach of contract.
Liability Insurance
The property owner or municipality can cover its own liability with liability insurance. In such cases, the policyholder transfers its liability to clarify the case and to compensate the insurance company.
When the insurance company has received the claim from the municipality or property owner, it examines whether the loss falls within the scope of the insurance cover. If it does, the insurance company calculates the extent of liability and amount of compensation that the policyholder is liable for according to the insurance contract. Examining a case of damage due to slipping and any compensation usually requires medical expertise, so it is worthwhile transferring the handling of such cases to the insurance company at an early stage.
After the incident, the liability insurance compensates the loss to the extent and on the terms agreed in the insurance contract. A prerequisite for the payment of compensation is that the policyholder is legally liable under the legislation in force.
Expenses covered by the liability insurance, according to the insurance terms and conditions and less the deductible, include the medical expenses of the injured person, loss of income during a disability period and compensation for temporary and permanent handicap. The insurance also covers the loss of, for example, a mobile phone that broke during the fall.
However, liability insurance does not cover expenses caused by the damage if, for example, the municipality decided to cut costs by not sanding roads during weekends or after office hours. In such cases, the risk is calculated, and such a risk cannot be covered by insurance. If a route is left totally unattended during the wintertime, it must be clearly closed to traffic and signs must be posted to say that the route is not in use in the wintertime.
On Anti-skid Measures at Workplaces
Damage caused by slipping at work or on the way to work is primarily covered by statutory Workers’ Compensation insurance. The insurance company, in its turn, can claim compensation from, for example, the property owner if the damage was caused by negligent sanding.
Together with the employees or their representatives, it is up to the employee to determine the location of black spots in the workplace and thus to pinpoint slippery areas. To remove or reduce the risk of slipping, a ploughing, sanding and salting plan should be drawn up, which should pay attention to the spatial needs of the fire and rescue services, including the need for access to the rear section of buildings.
Anni Niinikoski
