Small Business Owners Beware - Winter Is Coming & You May Be Responsible For More Snow Clearing
Most business owners realize that they must take care to ensure that ice and snow are removed from their premises to ensure that walkways are safe for customers and patrons. This logically includes sidewalks abutting the property. However, the situation becomes a little more slushy when the sidewalk in question is separated from the premises by a fenced in patio or vacant lot of land. In that situation, is the business owner required to keep the sidewalk free from ice and snow? An Ontario Superior Court decision from last winter demonstrates that in certain conditions, the business owner is required to clear ice and snow from a sidewalk which is separated from adjacent land.
The business in question was a Starbucks located at the corner of a strip mall. Most of the businesses, including the Starbucks had entrances facing the busy east west street. Starbucks, however, also had a side entrance allowing egress from the side street. A vacant strip of land, approximately 20 feet wide, separated the side entrance from the sidewalk that ran along the side street.
Starbucks negotiated for, and obtained, the right to create a fenced in patio on the vacant strip. The original plans indicated that the entire area was to be enclosed with access only from within the store. The plans were modified and eventually the patio was created and fenced in. However, a 3-4 foot gap in the fence allowed customers and patrons to access the patio, and Starbucks via the side street.
During the course of events, a slip and fall occurred on the sidewalk outside the fenced in area. The woman who fell sued claiming that Starbucks was negligent in clearing the ice and snow. Starbucks defended by stating that they had no obligation to clear the area. It was a municipal sidewalk that did not abut their premises.
The judge rejected Starbucks argument and ruled that Starbucks had created a pathway by leaving a break in the fence. This point of access allowed Starbucks customers egress in ingress to their location via the side street and its sidewalk. It was undisputed evidence that customers would park on the side street and cut through the fence, across the patio into the store. This pattern of usage created a situation where Starbucks should have taken responsibility to ensure the safety of its customers. If it did not wish to clear the sidewalk, access through the fence gap should have been prevented.
The Lesson: Ensuring customer safety extends past the boundaries of your physical premises. Watch for patterns of usage in how your patrons are accessing your store. If they are taking a "short cut" from where they park or access public transportation to your premises, you are responsible to ensure the route is clear.
Mackay v Starbucks, 2015 ONSC 4718 https://www.canlii.org/en/on/onsc/doc/2015/2015onsc4718/2015onsc4718.pdf
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