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Retail during the holiday season is both exciting and stressful. As they say, knowledge is power, so help yourself eliminate some of the stress by getting up to speed on how to mitigate common retail problems, such as returns and slip-and-falls, in our first edition of FMJ Retail Advisor.
5 Tips to Minimize Return Headaches
As every retailer knows, while December brings shoppers eager to buy gifts for loved ones, boosting sales in the process, January often brings some of those loved ones back with the gift that either didn't fit or at least didn't fit what they wanted. In order to make this inevitable event as painless as possible for both parties, it is important to make sure that you have a carefully-crafted return policy. When creating or reviewing a return policy, keep in mind the following:
1. Don't focus on how your best customer would interpret the policy, focus on how a challenging customer might choose to interpret it (and imagine that the customer is a lawyer to boot)! For example, while stating that a returned item must be "unused and in its original packaging" may seem clear enough, it is likely you'll find the customer who rips open a plastic and cardboard package, but doesn't use the item, and attempts to return it in taped up, but unusable packaging, stating that it meets the requirements. In this instance, clarifying that items must be "unopened" can help avoid issues.
2. Think through as many return scenarios as possible, and make sure they are covered in your policy. For example, if you have a 30-day return window, but accept returns without a receipt for in-store credit, an individual with an item purchased six months previously could still return it for in-store credit, while a customer with a 45-day old purchase and a receipt may be prevented from returning the item - unless the policy does not have a date requirement for exchanges for in-store credit.
3. If items are designated as "Final Sale" with no returns possible, be sure you are complying with any applicable state's regulations on final sales.
4. Ensure that your staff knows your policy forwards and backwards and that each staff member adheres to the policy (and any exceptions) in an identical manner, as this will help avoid customer complaints that "last time I was here your employee said I could...let me..."
5. Make your policy visible to customers. Post it at all points of checkout, print it on receipts, if possible, and if there's been a recent change to your policy, or if there is a special policy relating to a particular item, have your staff communicate the policy verbally at the time of purchase, as well.
Of course, we all wish that people would love their gifts and have no desire to return them, but since that won't always be the case, at least headaches can be minimized by making return policies clear.
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Inside Tips to Reduce Slips
As winter settles in, property owners and possessors should be prepared for the potential dangers to guests and entrants. In most states, property owners or possessors have a duty to keep their premises reasonably safe and to warn individuals on the premises of dangers that the owner caused, knew about, or should have known about. Owners or possessors should reasonably inspect, repair, and warn when it comes to potentially dangerous indoor conditions caused by winter weather.
Owners or possessors are required to use "reasonable care" to protect entrants from harm caused by a condition on the premises. An owner or possessor can be responsible for an individual's injury on their property, if the owner either did something a reasonable person would not do, or failed to do something a reasonable person would do. In some states, such as Minnesota, this duty is not extended to trespassers unless the owner knows of frequent trespass on a limited area. 
An owner must have either actual or constructive knowledge of a dangerous condition before they can become liable for an injury. Actual knowledge is first-hand (e.g. store clerk can see the snow-filled entryway is melting on the floor). Constructive knowledge is when the danger exists for a sufficient period of time to charge the owner with notice of its presence. Simply put, an owner should have known of the condition. Constructive knowledge is imputed under the theory that if a dangerous condition existed for a sufficient period of time, the owner should have discovered the condition through a reasonable inspection and removed or repaired the condition (e.g. bottle of liquid fell and broke on the floor of a store, was left for more than an hour, and dozens of employees were on duty).
Courts have determined that water or melted snow and ice tracked into a premise create dangerous conditions. An owner or possessor may be responsible for an injury, if the owner actually knew of the wet condition or if the wet condition existed for a sufficient period of time, giving the owner notice.
However, many states also impose a responsibility on individuals to use reasonable care for their own safety while on your premises. If an individual is more at fault than the owner, the owner is not liable for any action. Some states, including Minnesota, also apply a common law called "open and obvious" that eliminates an owner's duty to warn when a danger is visible. This is a narrow exception, however, as the owner remains liable to an individual for an injury caused by the visible condition, if the owner should have anticipated the injury.
Note to Landlords: In most states, a landlord has a duty to maintain common areas in a reasonably safe condition under the circumstances for tenants and their guests. The "reasonable care" standard applies to landlords, requiring them to make corrections or repairs a reasonable person would make. A landlord has a duty to warn a tenant about unsafe conditions when the landlord has actual or constructive knowledge of the condition and it is unreasonable to expect the tenant to know about or discover the condition.
Most general liability insurance policies provide "medical payment" or "med-pay" coverage. Med-pay covers an injured individual's medical bills incurred as a result of an injury on the insured property - up to a specific amount. Depending on the terms of your insurance policy, an individual is often entitled to med-pay, even if they are partly at fault.
Because slip-and-fall claims and owner or possessor defenses are heavily fact dependent, it is imperative to handle these claims early and thoroughly. If an injury occurs on your property, inform your counsel and/or insurance carrier immediately. If possible, document the facts around the injury by taking pictures of the scene and surrounding area. We encourage your company to survive the slip-and-fall casualties of winter by inspecting, repairing, and warning your entrants through the season.
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Salting the Earth for Better Returns
Winter sometimes sweeps in gradually, and other times without much warning, but either way, retailers are left with months of presenting a safe and easily traversable retail space for customers. In addition to the interior of the retail space, providing a safe exterior is tantamount for decreasing liability exposure during the winter months. While the occasional fall on the ice is bound to happen, there are steps you can proactively take beyond having a bucket of salt and a shovel available to help minimize your liability exposure.
If you are planning on leasing a new retail location that contains exterior elements that may be subject to common area maintenance, start by paying particular attention to that portion of the lease. A close examination of the definition of the common areas and the maintenance services provided for those areas will help you understand what obligations for snow and ice removal are yours and which ones fall on the landlord or property manager. Also, be sure to pay particular attention to the insurance portion of the lease, and have your business included as a primary and non-contributory additional insured party. That way, if a patron sues your business for falling down on a sidewalk in front of your retail location, and that sidewalk was actually the landlord's responsibility to maintain, you will have policy holder's coverage and you may reduce the probability of having to turn the claim over to your own insurance provider. 
If you are, instead, the primary tenant and are hiring the snow removal services of an outside vendor for the retail location, be sure to have a services agreement in writing. The obligations of the vendor should be clearly spelled out, including maximum response times to request for services, automatic accumulation or temperature triggers, and insurance coverage. At a minimum, be sure to obtain a current certificate of insurance for the vendor, and don't be afraid to tender claims to the vendor's insurance provider. If you use the same vendor year to year, don't assume their insurance coverage is the same, make sure to have a current certificate.
A frequently overlooked means of reducing exposure to exterior slip and falls is operational. Consider creating a log for each retail location where employees document any incidents that occur, communications made with the vendor requesting the services, when snow removal services are on site, and the condition of the exterior space after they are finished. Have the vendor's contact information included in the log, and instruct your employees to contact the vendor if they feel in any way that a spot was missed or the services were insufficient. In the logbook, include incident report claim forms as well. It can also be helpful to have a digital camera readily accessible to document the conditions immediately after the services are provided or the area where an incident occurs. Be sure that if you initiate the use of a log book and digital camera, your employees are diligent in utilizing them. Evidence you collect will help you establish that reasonable care was provided on your behalf, if and when actual knowledge of any hazardous condition was first obtained.
With the length of winter in many states and the number of patrons frequenting businesses around the holidays, slip and falls are bound to happen. However, it is possible to minimize your exposure by proactively negotiating and understanding your lease and snow plowing services contracts, having the proper insurance coverage in place and properly tendering claims whenever possible, and finally collecting and utilizing your documented evidence to reduce your liability.
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