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Winter maintenance at retail properties: duties, delegation, records

Who clears and grits car parks, pavements and delivery areas? An overview of the duty of care, local by-laws, delegation and gritting logs.

A supermarket or retail park stays busy throughout the winter: customers, staff and delivery vehicles all use the car park, footpaths and loading areas. Every year, owners and property managers face the same question: who has to clear snow and grit, when and where – and how can this be proven if a dispute arises?

Anyone who opens an area to traffic must take reasonable precautions to prevent others from coming to harm. This is known in German law as the duty to maintain safety (Verkehrssicherungspflicht). A culpable breach gives rise to a claim for damages under section 823(1) of the German Civil Code (Bürgerliches Gesetzbuch, BGB). Towards customers, pre-contractual duties of protection also apply, but according to the Federal Court of Justice (Bundesgerichtshof, BGH) these do not, as a rule, go further than the general duty of care.

Under settled BGH case law, a gritting duty requires either general icy conditions or recognisable indications of a serious threat from isolated icy patches. Its content and scope depend on the individual case: what is necessary for safe use and what can reasonably be expected of the person responsible. The aim is to remove genuine hazards, not every inconvenience.

Public pavements: check the local by-law

The municipality is initially responsible for public pavements in front of a property. However, the road laws of the German federal states allow municipalities to transfer cleaning, snow clearing and gritting to adjoining owners and occupiers by local by-law (Satzung) – in Baden-Württemberg, for example, under section 41 of the State Roads Act (Straßengesetz). Such by-laws usually treat both owners and occupiers, including tenants, as adjoining parties. They typically specify by what time in the morning pavements must be cleared, how wide the cleared path must be and whether salt may be used. As these rules vary from place to place, the current by-law of each municipality belongs in the property file.

Car parks and delivery areas

In 2019 the BGH clarified that, even in general icy conditions, a customer car park does not have to be gritted in its entirety. In the case of a supermarket, gritting the driving lanes was sufficient; the marked parking bays between parked cars did not need to be gritted. Customers can hold on to their vehicles there, and constant manual gritting between changing vehicles was held to be unreasonable. These principles apply to public and private car parks alike.

This is not a blank cheque. What is needed is a well-considered site plan: which lanes and walkways lead to the entrance, where are trolley bays, ramps and loading areas? Deliveries often take place before opening hours, so it makes sense to align the winter service schedule with actual operations.

Delegation to tenants or contractors

The duty to maintain safety can be delegated to third parties, such as a tenant or a winter service contractor. The BGH requires the delegation to be agreed clearly and unambiguously. The party taking over the duty is then liable in its own right. The original duty holder, however, retains a duty to monitor and supervise: it must check whether the delegated tasks are actually being carried out. According to lower-court case law, spot checks may suffice as long as there are no indications of failures.

In retail parks with several tenants, the interfaces are what matters. Leases and service contracts should consistently set out who is responsible for which area.

Documentation: the gritting log

If someone falls, there will later be a dispute about whether and when snow was cleared and grit spread. A carefully kept gritting log is important evidence. For each operation it should record the date, time, weather, areas treated, gritting material and the person carrying out the work. Your own spot checks should also be documented.

Checklist

  • The current by-law of each municipality has been obtained and reviewed.
  • A site plan showing pavements, driving lanes, walkways, ramps and delivery areas exists.
  • Responsibilities are clearly and consistently set out in leases and service contracts.
  • Service times take opening and delivery hours into account.
  • Spot checks are defined and documented.
  • Gritting logs are kept in full and retained.

If you have questions about winter maintenance at your property, please get in touch: ST 77 property management.

This article provides general information only and does not constitute legal advice in individual cases.

Sources

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