How you can reasonably protect yourself without writing a blank check to your snow removal contractor

Ever feel like you’re at the mercy of your snow removal contractor for preventing slip-and-fall accidents in the winter? (Followed closely by feeling like you’re at the mercy of the plaintiff’s attorney?) Did you know that falling is the leading cause of injuries world-wide—and that 60% of all falls are caused by slipping?

Without question, snow and ice removal is one of the most litigation-prone situations you will face because of these resulting slip-and-fall claims. Here are some things to do to help yourself, your owner and tenants.

First, you should know that there are three criteria used to determine if you are legally responsible for the injuries a person has on your property when they slip and fall under any circumstance. Two of these are directly related to snow and ice removal. To be liable for slip-and-fall injuries, the owner of the premises or the owner’s employee:
• Must have caused the spill, worn or torn spot, or other slippery or dangerous surface or item to be underfoot;
• Must have known of the dangerous surface but did nothing about it; or
• Should have known of the dangerous surface because a “reasonable” person taking care of the property would have discovered and removed or repaired it.

This third situation—‘should have known,’ ‘reasonable person,’ and ‘removed or repaired it’—is the area where most property managers and owners get into trouble. There are several factors that are included in determining reasonableness, but the most common for property managers and owners are these:

Does the property owner have a regular procedure for examining and cleaning or repairing the premises?

If so, what is the procedure and what proof does the owner have of this regular maintenance? (emphasis added)

During snow and ice situations, people WILL fall on your property. Some will require medical attention that costs them money and lost time at work. Many of these will look to you to affix blame and get
compensation for their medical expenses, lost wages, mental anguish, …

What can you do? You must be able to prove that you did everything reasonable to provide a safe environment, all things considered.

1. Have a written contract with a company that gives them both the authority and responsibility to do what needs to be done for snow removal. There should be some written guidelines on what actions to take and when so you are aren’t completely at their mercy for pricing. (See paragraphs following.) This shifts the bulk of the responsibility from you to the contractor. Don’t try to tie the contractor’s hands and insist on making all the calls when the event is in-progress— this shifts the responsibility back to you, and in a lawsuit you’ll be what is technically referred to as ‘toast.’

2. Insist on a written, hour-by-hour, report of weather conditions and your contractor’s activities on your behalf during snow and ice storms. This report should be faxed to you following any storm in which he did services for you. This helps keep the contractor honest by building in some accountability. More importantly, this will be your first line of defense in a lawsuit. At Hearthstone we call ours the ‘Snowstorm Diary,’ and it is a play-by-play account of our activities during any snow or ice situation that proves to a judge (or hungry trial lawyer) that we were doing everything reasonably possible to minimize the risk. This diary has prevented litigation.

3. Reasonable precautions and proof notwithstanding, you still need insurance protection. Be sure your snow removal contractor has liability insurance of a minimum of $1,000,000. (Get at least $2,000,000 if you think you or your owner can be perceived as a ‘deep pocket.’) Require that you are made an additional insured on the contractor’s policy so you can be certain the coverage stays in place. Being specifically named as an additional insured means that if the contractor drops or changes the coverage, you will be individually notified by the insurance company at the time this insurance change occurs, NOT when you’re trying to sort out who pays what in a court case. By the way, be sure your contractor is clear with the BBB’s Business Reliability Report, on-line at www.middletennessee.bbb.org.

Pricing pitfalls: That ‘blank check’ thing.

Here are the predominant pricing methods used in our area:
1. Set price per plowing. This is the most profitable to the contractor since the price usually reflects the worst case scenario. Tennessee rarely gets the worst case scenario, so your contractor usually pockets the difference.

2. Graduated set price per plowing is a better option if you do want a lump-sum arrangement. For instance, one price for a 1” to 2” snowfall, plowing operations.

3. Time and materials. Essentially, plowing by the hour, and ice melt per 100-pound barrel applied. This is the most fair to you since you pay for exactly what is needed and used. A 1-hour and 100-pound minimum is typical, with 1/2 hour and 50-pound increments thereafter.

No matter which contracting method you use, ask your contractor to focus their attention on entrances, exits, the main drive lanes and only the parking areas where cars are likely to be parked on a snowy day. Many contractors will clear the entire lot, when only 1/4 of the lot will be used. Draw a map with your contractor, with shading to show the areas you want cleared.

For comparison purposes, a one-time treatment for an iceover on a typical shopping center (anchor store plus 10 smaller shops) might take 1,000 to 1,500 pounds, and a follow-up deicing after snowplowing might take half this amount. The consistency of each snow or ice storm is different, so the mix between plowing and deicing can vary dramatically.

Melting Ice
The historic danger in Tennessee is more often due to ice rather than snow. Just 1/8” of i ce creates more danger than 6” of snow. There are many different formulations of ice melt chemicals to choose from. (Look for that in a future Hearthstone Maintenance Tip). Calcium chloride time-release pellets are the best all-around choice, doing little collateral damage while giving you the best melting action at the lowest temperatures —and no residue to clean up. Rock salt is the cheapest option, but unless the conditions are perfect for it (30 degrees with lots of vehicle traffic) it’s more than a total waste in your parking lot because it will not melt the ice until it reaches 30 degrees AND it is very damaging to sidewalks and plants.

Hearthstone Property Group, LLC
625 Beesley Road
Murfreesboro, TN 37128
615.890.4651 • FAX: 615.848.1581
Email: hearthstone@comcast.net
www.hearthstone.net