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Cover your ice: Avoid the blame in snow and ice management liability issues

September 28, 2015  By  Mike Jiggens

By Michael Frank

Many landscaping and lawn care professionals extend their services into the off-season to include snow and ice management. Seasoned professionals and newcomers alike do it to grow profits and cover their bottom line, but too many forget to cover their bases when it comes to liability issues. They provide winter maintenance services to reduce their clients’ risk but may not realize that in a slip-and-fall claim, the blame can fall on them.

With today’s rising unemployment rates, the number of slip-and-fall claims can be expected to rise as well, and lawyers typically won’t stop with your client when looking for compensation. Lawsuits can easily ruin a business, especially when gambling with liability in the high stakes of snow and ice management. This is why contractors must insure themselves and take steps to reduce their liability exposure.

Going under coverage

When entering the snow and ice management business, the first step a contractor must take to protect against liability is to investigate his current insurance policy. As obvious as this may seem, many don’t realize that their current general liability policy may not cover snow and ice management services. They must meet with their insurance agent to discuss coverage on new business plans, but also read through the insurance policy themselves. Whether trusted or not, the agent is ultimately a salesperson and may not know all the right answers.

The amount of coverage needed depends largely on the size of an operation, but other factors come into play as well. Laws often dictate what types of coverage are mandatory. Also, contractors must consider their clients because many commercial facilities require them to carry a certain amount of coverage. Typically, these clients stipulate between $1 million and $3  million worth of coverage. To help meet the demands, umbrella policies can supplement the general liability insurance.
As with any insurance policy, nobody hopes to ever use it. However, any snow and ice management contractor is apt to receive a slip-and-fall claim if he is in the business long enough. To further protect himself in this situation, a contractor must combine his coverage with preventative measures to reduce his liability exposure. By doing so, he can help prove due diligence in his efforts, and not negligence.

Choosing your words carefully

Crucial to reducing liability, service agreements spell out the responsibilities of a contractor, and nothing should be left out. A contractor must explain all services to his clients and then have them sign off on what they accept, what they reject and any further special instructions. For example, a client may refuse to spend extra money to de-ice a property with magnesium chloride at 10 degrees Fahrenheit, an appropriate temperature for this de-icer. The client may only approve the use of sodium chloride, which is cheaper but loses its effectiveness below 20 degrees. In this case, the contractor’s agreement should state that the client refused the use of magnesium chloride. Otherwise, he appears negligent for not using an appropriate product for the conditions.

Contracts must also clearly identify the party responsible for de-icing because some clients may request to de-ice their own sidewalks and entrance ways. If this isn’t noted, the client may try to blame his own negligence on the contractor in the case of a slip-and-fall incident.

Another de-icing issue that is often left out of contracts is freeze-thaw cycles. As snow piles begin to melt at the end of winter, the runoff freezes when night temperatures dip below freezing. The freeze-thaw cycles create icy spots that need to be managed. The agreement should state whether the client is responsible for notifying the contractor of these hazards or if the contractor must keep watch.

Verbiage also plays a vital role in a contractor’s agreements, both in his own and the ones he signs. A legal adviser should review them, as this can help identify language, even if it’s just a single word, in a contract that can cause trouble. As an example, contracts should use the word “serviced” instead of “cleared” because in an ongoing event one may not be able to keep all properties completely cleared. Also, the word “insured” works better than “fully-insured” since nobody can say how much insurance is really enough, and attorneys will jump at the chance to find out in a lawsuit.

When signing clients’ contracts, one must use caution. Many contractors, desperate for new business, sign them without considering the consequences. This may expose them to excess liability since outside contracts are often generated by large national clients and contain generic language. As an example, a contract may state that the contractor is responsible for slip-and-fall occurrences on the client’s property. However, a better contract would be more specific so the contractor could not be held responsible for areas on the property that he is not instructed to service, such as entrance ways.

Additionally, outside contracts often put the client in charge of service frequencies. This takes control away from the contractor, who may be on a busy schedule when the client calls for service. When he does arrive at the client’s property, the snow may be packed down, making it harder to plow and requiring more material to melt the ice.

Putting everything in writing

Other than service agreements, more paperwork is needed. For every job, a contractor should document the time he arrived at the site, how many square feet he treated, the services he provided, the products he used and the weather conditions at the time he serviced the property. All of these factors are important because these are the questions an attorney asks in a slip-and-fall case. If the contractor can prove that the property was serviced in a timely manner, the appropriate volume and type of ice melt was used, and the service agreement was fulfilled, a court of law is likely to find that he exercised due diligence and is free of liability.

Furthermore, a contractor should take photos of all clients’ properties before snow starts to fall because pictures are not only worth a thousand words, but they can also save thousands of dollars. They help identify obstacles on the lot and act as documentation of prior property damage. For example, a client may have a damaged curb that he did not notice before winter began. However, he may notice the damage after the snow melts and assume that it was caused by a snowplow. If a date-stamped photo was taken of the property, the client can see that the curb was damaged before service began.
For further protection, a contractor may consider taking pictures after a job. This proves that an area was serviced at a certain time and that snow piles were kept outside of drivers’ line of sight.

Putting time on your side

While documentation is extremely important in snow and ice management, preventative steps must also be taken on the jobsite to reduce liability exposure. One way for contractors to do this is to put time on their side. Many snow and ice management firms focus on getting more contracts and then fail to fulfill them in a timely manner. Instead, contractors should plan response times for clients and ensure they can provide adequate service for all. This prevents calls from impatient clients wondering when their lot will be serviced and reduces liability exposure because the longer snow and ice remain on a property, the greater chance of a slip-and-fall incident.

Also, service agreements should not state that a client’s property will be serviced by a certain time of the day. In other words, contractors shouldn’t guarantee an 8 a.m. cleanup because snow may continue to fall into the afternoon. Instead, they should offer to have the lot cleared within a certain number of hours of the snow event. This method allows greater control of the business and allows them to charge a premium rate for a quick response time or a discount rate for less urgent accounts.

Equipping for success

Besides taking on too many contracts, a snow and ice management provider should be careful not to take on jobs that are inappropriate for its equipment. The temptation of a large, high paying job is tough to decline, but a contractor only increases his liability exposure by attempting to take on demanding commercial properties with only a five-foot plow.

On the other hand, using equipment that’s too large or aggressive for a particular job can be detrimental as well. For instance, decorative concrete surfaces can be caught and damaged by heavy plow blades. In this case, perhaps a snow broom attachment would provide a better option. A relatively new approach in snow removal, these brooms are capable of pushing several inches of snow while virtually eliminating the chance of damaging the surface below.

When considering new equipment, better tools usually offer better liability protection. For example, a spreader with an independently controlled auger and spinner can spread de-icing material more precisely than those that use other distribution methods. This precision control not only provides the contractor with increased material efficiency and lowered costs, but it helps reduce potential property damage as well. Putting the material where it’s needed, rather than flinging it into environmentally sensitive areas, passing or parked vehicles, or other property is just one more step to keep your cold-weather service out of hot water.

Otherwise, when it comes to the plow blade, make sure it’s equipped with proper edge markers. It’s a very basic accessory, but being able to clearly see where the edges of your plow reside helps keep it in the snow and away from any sensitive property.

The key to equipment considerations is to work within its logical capabilities or to gear up for the jobs you want to address. Doing so means a more efficient operation, happier customers and the reduction of easily avoidable liability issues.

Melting away liability exposure

Another way to reduce liability exposure is to work with the storm by either pretreating a property or by servicing it immediately. If a property is pretreated, the de-icer product prevents bonds from forming between the pavement and ice, making an area much easier to plow later. If a few inches of snow fall before the property is serviced, the snow may have been packed down by cars and therefore much harder to plow. And since icy spots are more likely to remain after plowing packed snow, a slip-and-fall incident is more likely to occur.

Also, contractors should offer a variety of ice melting products, rather than just sodium chloride, or salt, which is the only product used by many contractors. As mentioned earlier, sodium chloride loses its effectiveness as the temperature falls below 20 degrees Fahrenheit. Consequently, if a contractor spreads it at a temperature of 10 degrees, and a person slips on the treated ice, a contractor may be found negligent if he did not offer a more appropriate product.

To improve the effectiveness of salt, many contractors mix it with sand, which provides traction while the salt absorbs sunlight and slowly breaks up the ice. This is a better option than using only salt, but still may not be as efficient as magnesium chloride, calcium chloride or other ice melting products that quickly melt ice at low temperatures.

All this talk about liability can be overwhelming, and a bit frightening, but it shouldn’t scare you away from the lucrative business of snow and ice management. The steps listed are easy to implement, and you can rest easy knowing how to use better business practices to protect yourself from liability exposure. Like driving a car, we understand the risks associated with it. However, we wear a seatbelt for protection in an accident, and we exercise safe driving tactics so that doesn’t happen. In snow and ice management, insurance is the seatbelt, liability reduction methods are the safe driving tactics, and the smile on your face is from peace of mind.

Michael Frank is the product marketing manager for SnowEx.

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