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A new legal landscape

  • Darryl Beckman
- Posted: February 1, 2015
As an attorney working for snow & ice management companies, the major change in the industry over the past 10 years, without question, has been an explosion in slip-and-fall claims and lawsuits. Reasons for the monumental increase over the last decade are many, but likely include a series of harsh winters combined with the downturn in general economic conditions, resulting in people pursuing legal claims in an effort to supplement lost or declining wages. Whatever the reason, the increase in litigation has significantly affected the industry.

Complexity of commercial property contracts. Ten years ago, when slip-and-fall accidents were less common, the standard commercial service contract was a simple page or two identifying the services, start and end date, triggers and price. Today, contracts are complex documents that often exceed five pages and very often require attorney review. 

Complexity of contracts with vendors and subcontractors. Just as contracts with commercial property owners have become more complex, contracts with subcontractors have grown in scope and requirements. I recommend any contract with a subcontractor or vendor contain the following:
  • Term dates and pricing for all locations covered by the agreement
  • Scope of work, clearly identifying what is expected and when services are to be performed
  • Responsibility to perform all necessary inspections before departing the job location and monitoring on the days following service completion 
  • Non-compete clause, protecting the business relationships of all parties
  • Required insurance coverage and defense and indemnification
  • Requirements for use of second-tier subcontractor if allowed
Insurance cost and availability. There are a number of highly rated insurance carriers offering general liability insurance coverage for the snow & ice management industry, but not as many as there were a decade ago. Many smaller snow management companies found it difficult to secure coverage, or were forced to pay significantly higher rates. I strongly recommend against performing any snow & ice services without valid and effective insurance coverage. I also strongly caution against expecting a policy of insurance for landscaping services to cover snow services.

Cellphone photographs of the accident area. In a very interesting development over the last 10 years, people claiming injury from a slip and fall are routinely taking cellphone photographs of the snow and/or ice. The photographs are used to document the alleged poor condition of the premises, although the photographs usually depict only a small physical area and small patch of snow or ice. Arguably, this does not give a fair view of the condition of the entire premises.

Immediate and enhanced investigation by big box stores. As claims have increased, the level of expertise of commercial property owners, particularly for big box stores, has increased as well. Many large retailers have in-house legal or risk management departments tasked with training store personnel on how to react and investigate accident claims. Investigation generally begins upon notification of a claim and will include securing statements from the injured party and any witnesses, securing photographs of the accident location, and identifying any physical injury. A store representative or outside claims person will usually follow up with the injured person and secure a recorded telephone statement describing the circumstances and conditions surrounding the accident in detail, along with any emergency room and/or medical treatment records.

Video surveillance. Video surveillance systems have dropped in cost and are now used throughout society, including at high-traffic intersections, banks, casinos, shopping malls, and areas where theft and insurance claims are common. Big box stores now use video surveillance systems to capture the accidents and document their cause and extent. We won a very large court case by relying, in part, upon video surveillance showing thorough ongoing snow clearing activity at the time and location of a slip-and-fall accident.

Flat fee or seasonal contracts. Flat fee or seasonal contracts are now widely used and generally are favored by big box retailers and large commercial companies to control budgets for snow & ice services. These contracts often allow the contractor significant discretion to perform services it believes are necessary, including pretreatments, servicing at any level of accumulation, and melt and refreeze monitoring after the storm. This discretion carries enhanced risk and liability, so the contractor must thoroughly understand the service requirements and physical characteristics of all locations covered under the contract.

Enhanced record keeping. In a positive development, many snow & ice management companies have realized documentation is vital not only for accurate client billing, but also to defend claims and lawsuits. Good records should include:
  • Start and stop times for services
  • Type and quantity of equipment and chemicals utilized on the job
  • Identification of the job supervisor
  • Communication with the client, including restriction or refusal of service
  • Subcontractor documentation of the same
Property managers retain control over, limit or restrict services. Difficult economic conditions resulted in cost control measures throughout all aspects of commercial enterprise. Many property owners and managers have restricted or limited services in an effort to meet the requirements of dwindling snow budgets. Contractors must always document any client directive that restricts service. I recommend a brief note or email to a property manager confirming any instruction to limit service, with a request for the property manager to contact your company should the manager later decide to authorize service. 

Defense and indemnification and additional insured requirements
. Many large commercial entities want to transfer any potential liability for snow & ice claims to the company performing the services. Before agreeing to any such terms, understand the contractual requirements, and make sure your company is not limited in the performance of necessary services. I strongly recommend never agreeing to accept responsibility for the negligence of another party.   

Darryl Beckman is managing partner of Beckman Ogozalek Perez Paglione. He has been contributing legal insights to Snow Business magazine since the first issue in May 2005. Contact him at
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