Reducing Snow Contractor Liability Risks
By: Scott McEachern, Licensed Paralegal
Back in the days when I was an insurance broker serving hundreds of landscape companies, many of which provided snow removal services during the winter months, an interesting statistic was gathered and it was found that my clients were sued ten to fifteen times more often as a result of their snow removal work than their landscape work. Of course, this didn't really come as a surprise. This was already well known and rated for by insurance companies. The statistic also appeared objectively as common sense. I say, "common sense" because when we think objectively about the likelihood of a landscaper being sued, for example because of a 'trip & fall' versus a 'slip & fall', we can easily picture in mind that that risks of a 'trip & fall' are much easier to supervise and protect against than the risks of a 'slip & fall'.
A 'trip & fall' legal action can, and does, occur from time-to-time. This can happen as a result of workmanship when allegations are that underlying aggregate material was improperly installed causing frost heaved paving stones or that the rise and run of walkway steps were improperly designed. However, during the performance of a project, by providing good workmanship including adherence to proper design standards, the 'trip & fall' risk is greatly minimized. Generally, good work done remains good work done.
Unfortunately, the 'slip & fall' liability risk experienced by snow removal contractors is subject to many factors beyond the quality workmanship - although doing good work is still imperative! It is plain and obvious that a snow contractors "good work done" becomes unraveled by weather conditions, among other things. Additionally, subsequently proving "good work done" can be very difficult. In the 'trip & fall' examples above, months after someone suffers a trip and fall, we can often return to the scene to inspect and gather evidence that the work was done correctly and the incident was therefore a result of the injured persons own clumsiness. However, with 'slip & fall' allegedly due to snow removal services, we are unable to return to the scene months after to inspect how well the plowing and salting was done - for this reason, and other reasons, detailed record keeping at the time work is done is very important.
Aside from the challenge gathering subsequent evidence regarding work performance, there are many other reasons that snow contracting work attracts risk and legal challenges. However, all remains with hope. The risks can be managed so as:
Here are some tips on how a snow contractor can manage 'slip & fall' risks:
1. Avoiding Bad Contracts
Snow removal contractors should avoid contracts that hold the contractor fully responsible for any 'slip & fall' accidents as a result of snow and ice conditions when:
Contracts should be worded in a way that financial responsibility is not assumed when any of these three concerns are present. When any of these three conditions are present, the contractor should negotiate that the contract make these three conditions exceptions to any hold harmless and indemnity agreements in the contract.
Furthermore, in general, it is wise for the contractor to carefully review the property owner's or property manager's expectations, as expressed in the contract, and ask yourself if you can perform as literally required. If the contract is literally unreasonable, the contractor's acceptance of the property owner's liability exposure is unreasonable!
The most absurd literally impossible contract I ever saw was from Loblaws Properties, a very legally sophisticated property management company. The contract stated that the snow removal contractor was to avoid bringing environmentally hazardous products such as fuels, oils, lubricating fluids, etc. or vehicles and equipment containing the same, onto the worksite. This is obviously impossible, at least obvious to any contractor or sensible person except the lawyer who drafted such a clause and apparently never gets out of his 50th floor Bay St. office to take a look at reality.
Finally, contracts should include language that requires a property owner or property manager to promptly notify the contractor of a 'slip & fall' incident so that the contractor can begin to gather details necessary for a defense. The condition to provide prompt notification should include a penalty for failure to do so - the penalty being that the property owner or property manager voids any favourable indemnity clause.
2. Shifting Risk (Literally Passing the Buck)
Unless you can demonstrate that a situation arose due to the subcontractor’s independent actions, you and your company can be held liable for the fault of the subcontractor. As a result, hold harmless and indemnity agreements should always be in place with subcontractors. Additionally, the subcontractors should supply you with a certificate of insurance with you added as an additional insured party.
3. Using Site Maps
Site maps included in a contract clearly spell out the area of responsibility for the snow and ice removal contractor, as well as provide for notation of concerning conditions that require special attention by the equipment operator at that worksite during actual snow work. A site map is especially helpful when an operator is filling in for someone else and is unfamiliar with that particular worksite.
That way, if a contractor's employee or subcontractor is at the worksite for the first time, all that is necessary to fully understand any hidden challenges is to look up the worksite in a binder handily kept in the equipment (plough-truck, loader, etc.). When arriving at the worksite, the employee or subcontractor should have easy access to know the location of every snow buried curb, raised manhole, loading dock ramp, hydrant, or other hazard is and be much less likely to damage the equipment or himself by running into it. Equally important to knowing where obstacles are located, knowing the location of a drain slope helps to ensure adequate salting attention where necessary.
4. Defense Preparation
Mounting a defense to a 'slip & fall' legal action can be very difficult and expensive, thus why insurance companies tend to settle many claims out of court. The legal onus to prove that reasonable effort to protect against 'slip & fall' risk is on the property owner/property manager as well as hired contractors rather than on the injured victim. Nonetheless, a contractor and the contractor's insurer can be in a much stronger position when a contractor promptly gathers quality details by asking the following questions:
Name, address, phone number. Where were you going? Where were you coming from? Why did you choose that particular path? What was your footwear? Were you carrying anything? Were you walking or running? What were the weather conditions at the time?
Name, address, phone number. What did you see happen? Where was the victim when he/she fell? Did you see what type of footwear the victim was wearing? Was the victim carrying anything? Was the victim walking or running? Was there another, perhaps safer, path the victim could have chosen? How could the victim have altered his or her behavior to avoid the incident?
When did you find out about the fall? Did you see the fall happen (If so, ask the same questions noted above for any other witness)? Are you aware of any witnesses? What were the weather conditions at the time?
When was the last time service was performed at the site? What was done? What were the weather conditions at the time? What were the conditions of the site? Were any hazards present?
In addition to gathering information after an accident, ongoing accurate record keeping is vital to minimizing financial responsibility in the event of an accident. If a contractor has accurate and complete documentation for all activities, such provides the necessary information to make out the contractors case, but also creates a professional and conscientious image of the contractor when in court. Consistent record keeping and credibility go hand-in-hand.
5. Choosing Better Customers
A former snow contractor client of mine agreed to do snow removal work at a retail plaza and entered into what was thought would be a reliable and profitable contract. What this contractor failed to notice when bidding on the contract was the dance club adjacent to the retail plaza. Unfortunately, the dance club’s patrons routinely used adjacent parking lots at late hours and the patrons were sometimes tipsy, wearing high heel shoes, and presenting of other hazards. Not surprisingly, the contractor had two 'slip & fall' legal actions within two months after taking on the account.
This example demonstrates the importance of being selective and discerning about who to work for. This might require some tough business decisions on the part of the contractor, especially if desperate for new work.
Before a contractor agrees to enter into a snow removal contract, careful evaluation of the inherent risks should be considered. The considerations should include:
Snow removal contractors can never totally eliminate all risks of incident or risk of legal actions; however, with proactive business management these risks can be greatly reduced.