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Put liability on ice

By:
  • Darryl Beckman
- Posted: April 1, 2015

The winter brings many challenges for snow and ice management companies, but possibly none as significant as providing timely and quality ice control services. From a liability perspective, the vast majority of legal claims brought against my clients in the snow industry arise from allegations of inadequate ice control. 

Who is inspecting?
Make sure any contract you sign for snow clearing and ice management services explicitly identifies the party (premises owner, property manager, or snow contractor) responsible for inspecting and monitoring the subject premises following any winter storm event. In this situation, ambiguity is extremely troublesome. I can’t count the number of times honest and credible representatives of management companies, homeowner associations and snow contractors offered different versions of who was responsible for inspection and monitoring after storms.

Inspection timeframe
If the snow contractor is responsible, the written contract must expressly set a clear and unambiguous time period for this service. A tremendous amount of legal claims arise from accidents occurring many days after storm events, and it is crucial there be no confusion on the length of time inspections must continue. There is no reason a qualified snow company can’t properly treat premises for snow and ice, but it is difficult to fully understand obligations if they are not clearly and unambiguously listed in the contract. Do not allow your company to be found responsible for an accident occurring a week after a snow storm unless it was your company’s responsibility to inspect and monitor the premises a week or longer after the storm.

Know the costs
Many large retailers are contractually requiring snow and ice management companies to monitor and treat as necessary throughout the winter season, essentially attempting to shift legal responsibility for the site to the contractor. There is nothing wrong with accepting responsibility to monitor throughout the winter season. But the contractor must understand the labor costs associated with that service and the liability potential for slip-and-fall accidents. I recommend a preseason meeting and walk-through with a client representative to review the site’s physical characteristics and to identify areas that may result in drainage accumulation or snow pile runoff.

Too much product

Over the past couple of years, claims have arisen from the use of too much ice melt product. This is a tricky situation, since an ice control program must focus on providing safe surfaces for people walking on and around the premises. Contractors must understand the site and proper amount of deicing product to apply. Over-application often results in tenant complaints since the product is tracked inside and creates, at the very least, a messy appearance. Even more important from a liability perspective, over-application may create a slipping hazard.

Site engineering
The placement of snow piles is extremely important. I continually see piles of snow adjacent to handicapped parking spaces. While these spaces are usually larger than a standard parking space and have more area to push and store snow, the resulting melt and freeze invites injury and subsequent litigation. The last thing a snow and ice management company wants to do is to create or contribute to a potentially dangerous condition by allowing runoff and resulting melt and freeze into handicapped parking spaces. To the extent possible, pushing snow far away from building entryways is a sound practice.

Sub monitoring

If you use subcontractors, make sure all ice control is provided in accordance with the standards established by your company. Provide written guidelines for the work expected by your company. All services should be subject to your right of inspection, but you should require the subcontractor perform a final inspection before leaving any job. In the written subcontractor agreement, expressly note the subcontractor does not rely upon inspection by your company and outline whether they are required to return for inspection and monitoring.

Finally, client communication and communication with subcontractors surrounding storm events is crucial.  Understand any unique or special areas of concern, and stay in regular contact concerning the condition of the premises after storms, especially regarding any complaints or reports of ice. You must be fully aware of the condition of the premises to offer superior service to your customers. 

Insights

  • Before offering to monitor for melt and refreeze conditions, fully understand the costs and commitment.
  • Proper site engineering can help mitigate many melt and refreeze situations.
  • Calculate the proper application rates and train your team members to administer materials properly.

Darryl Beckman founded Beckman Roth Ogozalek, which has offices in New Jersey
and Pennsylvania. Contact him at darryl@beckmanlawgroup.com.

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