Proper contract drafting is vital in addressing numerous issues, and product and supply shortages are no exception.
Winter risk management is one of those operational realities that quietly carries outsized legal exposure. Snow and ice accumulation– particularly in Northern climates – creates a predictable hazard, and courts routinely treat mitigation (including salting) as part of a property owner's or contractor's duty of care. But what happens when the system breaks down not because of neglect, but because you simply run out of salt?
This scenario – once rare – is increasingly plausible given supply chain disruptions, extreme weather cycles and regional shortages. The legal consequences, however, haven't softened. If anything, they highlight a gap between operational risk and contractual planning.
At its core, a slip-and-fall claim arising from ice is governed by general negligence principles. In other words: Did a legal duty exist? If so, was that duty breached? And did the breach cause injury?
Property owners and snow/ice contractors are generally expected to take reasonable steps to maintain safe conditions. If a hazardous condition exists – like untreated ice – and someone is injured, the inquiry becomes whether the responsible party acted reasonably under the circumstances.
A supply shortage may be relevant to that analysis, but it is not a safe harbor. Courts are unlikely to accept "we ran out of salt" as a complete defense where: the shortage was foreseeable (e.g., ongoing severe weather); the party failed to plan or procure alternative materials; no interim safety measures were implemented (e.g., sanding, barricades, warnings); or the party continued to hold itself out as providing full winter maintenance services.
In practice, the shortage becomes a fact issue, not a legal shield.
In many cases, liability exposure turns less on whether someone was negligent and more on contract structure.
Property owners typically retain non-delegable duties to maintain reasonably safe premises. Even where a snow removal contractor is engaged, plaintiffs frequently sue both the owner and contractor. Owners therefore face residual exposure unless their contracts clearly shift risk.
Snow and ice contractors face direct exposure when they: undertake comprehensive maintenance obligations; fail to perform within agreed service levels; or exercise discretion in determining when and how to treat conditions.
A contractor who cannot perform due to lack of materials may be seen as breaching both contractual and common law duties.
Standard snow removal agreements often address timing, trigger depths and pricing – but many omit any meaningful treatment of material availability. This is where risk can be proactively managed, including through provisions such as a Force Majeure Provision that is tailored to supply chain issues instead of being limited to "acts of God" and weather events, and allowing for material substitutions in the contract in the event that salt is scarce.
Of course, limitation of liability and indemnification provisions are always key, but they can be especially helpful in salt scarcity situations. Contracts should avoid performance guarantees, instead installing a "reasonableness" standard.
Proper contract drafting is vital in addressing numerous issues, and product and supply shortages are no exception. Make sure to review your contracts to confirm these necessary provisions are included.
Jared Nusbaum is an attorney with the law firm of Zlimen & McGuiness, PLLC in St. Paul, Minn. His practice areas include employment law, small business law, litigation and bankruptcy. Email him at jnusbaum@zmattorneys.com.