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Damage control

By:
  • Darryl Beckman
- Posted: September 1, 2015
It is a goal of all reputable snow and ice management companies to offer quality services at a fair price, and to grow their businesses while keeping customers happy. Trustworthy companies will consistently respond to claims that their employees and/or services caused physical damage, and when appropriate, make necessary repairs or compensate property owners for reasonable damage. However, no snow and ice management company should expect to pay for damages unrelated to the services performed. Following are some situations I’ve defended, as well as practical advice to consider when confronted with a damage claim.

Contract language
I like to use a simple, basic provision in contracts, reflecting the company will assume responsibility to repair negligent damages that their employees, vehicles and or equipment may cause to property or persons while performing services under the contract. This type of provision allows property owners and management companies a sense of security, knowing the company performing snow services will accept responsibility for any damage caused by their actions.

When damage occurs, it is important to immediately document, report and address it. The best source of documentation is a photograph of the damage. Almost everyone has a cellphone with photo capabilities, and employees should be instructed to immediately document any damages. The property owner or management company should be made aware of the damages, and repairs should be performed as soon as practical. I have defended a surprisingly large number of lawsuits arising from people tripping and falling over displaced parking bumpers and wheel stops. What may be a simple and inexpensive repair can turn into a significant and expensive lawsuit if ignored. 

In a slight variation of this theme, I defended a company in litigation spanning three years over responsibility for an injury suffered when a pedestrian tripped and fell over a light pole that supposedly was knocked down during snow management services and was left unfixed. Monetary contributions toward resolution of the lawsuit were made by the property owner, commercial tenant, primary snow clearing contractor and subcontractor. Tremendous time and resources could have been saved had the damage been immediately reported and repaired.

Collateral damage
What about collateral damage, which is incidental to snow clearing and deicing services? Responsibility for collateral damage is usually highly contested and often results in litigation.

Concrete and/or landscape damage caused by ice melt product left in place for months due to snow piled in a parking lot is a common example. It is difficult to globally address responsibility for all potential collateral damage in a contract, although specific anticipated damages may be addressed by simple provisions like: “It is acknowledged by all parties that the contractor is not responsible for any damage caused by potentially corrosive ice melt product left in place due to a decision by the owner to forgo the cost of hauling away snow piles from winter storm clearing activity.”

Absent a specific contractual provision, I recommend documenting decisions by the owner or management company that could open you up to collateral damage claims. A brief letter or email to the management company representative noting the decision and the potential for damage is usually sufficient.

I have a client who makes a practice of documenting any customer decisions that limit or restrict recommended activities through a nicely worded notation on all service invoices. This is an excellent method of protecting your snow company from collateral damage resulting from a client’s decision.

Multiple staff/companies on-site
Another tricky damage situation arises when more than one snow professional is performing services at a site. I see this frequently at large retail locations. To avoid responsibility for the errors of another company, I suggest clearly and unambiguously defining areas of service responsibility in the contract. I have a client who uses aerial photographs to outline and delineate areas of service responsibility for large retail complexes. If there is no clearly marked area of service responsibility, or service areas overlap, there is a fair probability of a dispute and the potential for time-consuming litigation over damages.

Statute of limitations

A common concern is late claims, presented long after the snow professional has an opportunity to investigate the cause of and correct any damage. There is no easy answer to this potential problem. Individual states have statutes of limitation of varying lengths, with limits on presenting claims for property damage ranging from as little as one year to as long as five years, and possibly longer depending on your jurisdiction.

I have a client who assigns a site-specific supervisor to each of its service locations and requires that the supervisor inspect and sign off after all services are completed. Should a claim be presented years after a service date, the supervisor can credibly testify that he or she inspected the area, and there were no damages visibly present. Remember, it is the burden of the party claiming the damage to prove responsibility.

I recently represented a snow and ice company in a trial where a homeowner in a gated community claimed the company damaged his garage door. The property owner had no proof the damage was actually caused by the company and the claim was dismissed.

Even the most careful snow employees can cause damage, but proper avoidance training and a good documentation process - before, during and after the season - can help limit the hassle and costs associated with the claims that come with it.

Damage trouble spots

Damage 1   Damage 2
Residential customers and homeowners’ associations are often late in making claims since many residents may leave for the winter, only to find damage when they return.

Damage 3
Fences pushed over by the weight of snow may be the result of negligence or collateral damage

Damage 4b
Fixtures along walkways are prime targets for damage. Notations in the scope of work or staking might have prevented the damage.

Darryl Beckman founded Beckman Roth Ogozalek, which has offices in New Jersey and Pennsylvania.
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