222 Week 7 A /For WIZARD KIM

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FOR SAFETY’S

SAKE

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A REASONABLE STANDARD OF CARE FOR COMMERCIAL PROPERTIES

FOR SAFETY’S

SAKE

BY JEFFREY S. LAPIN, CPM

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They should and do expect that the owner of that property, by making it accessible to the public, maintains the property—including parking areas, lobbies, hallways, grounds, pools and the walkways that connect these ele- ments—to a reasonable standard of care. Landlords who own and operate commercial properties need to be aware of the fact that there is a direct correlation between proper mainte- nance and risk management proce- dures and the risk of physical injury. In other words, poor maintenance prac- tices increase the likelihood that some- one will be injured on our properties. Good maintenance practices reduce that risk. A reasonable standard of care needs

to exist for any given commercial property, and it all starts with a proactive, writ- ten property maintenance and risk management plan.

PLANNED MAINTENANCE IS PROACTIVE MAINTENANCE IREM teaches property managers that proactive maintenance (maintenance de- signed to anticipate likely future repairs and servicing needs) is the cornerstone of achieving a reasonable standard of care for their properties. A foundation of proactive maintenance and risk management procedures is the written proper- ty maintenance and risk management plan. Every commercial property manag- er 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 spe- cific 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 burned- out bulbs or missing fixtures or those that are likely to fail soon? That duty must be

Tenants, visitors and vendors who enter upon public commercial properties (office buildings, retail centers, apartment communities, industrial buildings, etc.) are entitled to the presumption of safety.

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FENCING AND SIGNAGE 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 precau- tions are not taken. And the responsi- bility for the safety of such amenities doesn’t end with the installation of such a fence and gate. The fencing and gates must be regu- larly inspected and maintained as need- ed 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 and providing other important safety information. What about life preservers? If required, these items must also be inspected and repaired or 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.

REGULAR, DOCUMENTED INSPECTIONS The performance of regular, document- ed inspections by a trained eye is first and foremost in the process of effec- tively managing risk. IREM’s course, Managing Maintenance Operations and Property Risk – MNT402, taught as part of the CPM curriculum, stresses that the first responsibility of property management and maintenance profes- sionals is to perform regular, compre- hensive inspections of the property and

Another example of an item that is often the target 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 requiring a whole host of precautionary measures by the owner or manager to ensure safety.

to document those inspections with written checklists. Check for such items as burned-out lights; a wet or slippery floor; trip hazards such as potholes or broken bumper stops; missing warn- ing signs; or objects left in the path of travel that can and should be addressed in a reasonable period of time. These items should be noted on the inspection reports, and action should be taken im- mediately to remove the hazard or warn pedestrians to avoid it. Regular, docu- mented inspections are the mainstay of any good property maintenance and risk management program.

PROACTIVE MEASURES The key is the proactive nature of such policies and procedures. Trained proper- ty managers do not wait for an accident to happen or a system to fail before tak- ing 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 imme- diately cordon off that area with a highly visible barrier, warning pedestrians of the hazard. They 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. They 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.

PAY CLOSE ATTENTION TO SWIMMING POOL MAINTENANCE

assigned in the property maintenance and risk management plan for the property. Properly created and admin- istered, the customized property main- tenance and risk management plan en- sures that regularly scheduled cleaning and repair of a property’s equipment and common areas will occur before a problem exists.

INSPECTIONS AND FOLLOW-UP It is not sufficient to have a proactive property maintenance and risk man- agement plan that sits on a shelf and gathers dust. To be an effective tool, the property manager must use that plan to guide maintenance and risk man- agement operations on a daily basis. The proactive property manager will perform regular inspections, note de- ficiencies, assign work to be completed and then follow up to ensure that cor- rections were made. Failing to perform regular, documented inspections of the property and then follow up with those responsible for carrying out the items in the maintenance plan is no better off than the manager who never does in- spections. In fact, the knowledge of the existence of a dangerous or improper- ly maintained property element, and the subsequent failure by the owner or property manager to take appropri- ate and reasonable action to mitigate or eliminate the hazard, can often be worse than a total lack of awareness of the condition. Whether the property owner or manager has chosen to hire in-house maintenance personnel to perform reg- ular cleaning and maintenance of the common areas of a property, or these services have been outsourced to a qualified third party contractor, there is a reasonable expectation by the visit- Continued on Next Page

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ing public and tenants that such main- tenance is occurring regularly and that public areas are safe. For instance, the policies for main- tenance 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 and then cleaned up using proper tools, leaving a dry, non-slippery surface. Such inspections should be documented, including con- ditions found and corrective actions taken.

PERFORMING DETAILED MAINTENANCE PROCEDURES The policy should state that the build- ing’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 immedi- ately eliminated, precautions must be taken to keep people from that area and prevent accidents. The specific maintenance procedures for this floor should include the routine application of a non-slip floor finish to make it saf- er. A periodic test to indicate the slip resistance of a particular floor surface (known as the Coefficient of Friction, or COF) is a recommended best prac- tice in our industry.

JEFFREY S. LAPIN, CPM, ([email protected]) HAS OVER 35 YEARS OF COMMERCIAL PROPERTY MANAGEMENT EXPERIENCE AND IS AN IREM INSTRUCTOR WHO TEACHES IREM’S MANAGING MAINTENANCE OPERATIONS AND PROPERTY RISK – MNT402 COURSE.

DOCUMENTING MAINTENANCE 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 satisfactory and appropriate measures to prevent an injury. 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—one that includes having a written, property-specific plan for inspecting and maintaining every element of the prop- erty and for following up immediately when hazards are discovered—are the ones least likely to be on the wrong end of a liability judgement.

There is a reasonable expectation by the visiting public and tenants that such maintenance is occurring regularly and that public areas are safe.

Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.