There seems to be no off season for slip and fall claims and if you are a snow removal contractor you could be involved in a liability claim at any time. You might think the time for snow and ice claims is over, but in fact tender letters from a property owner’s insurer, letters of representation or lawsuits from a claimant’s lawyer happen from time to time year round. But there is some good news. Some New England states do not permit claimants/plaintiffs to make direct causes of action against snow removal contractors.
Such causes of action are generally not permitted in New York. The seminal court case deciding this issue is Espinal v. Melville Snow Contractors Inc. This case establishes that a snow removal contractor cannot be held liable for the personal injuries of third parties unless:
(1) The contract between the snow removal contractor and property owner was so comprehensive and exclusive that it entirely displaced the property owner’s duty to maintain the premises;
(2) The Plaintiff detrimentally relied upon the contractor’s continued performance of the contract
(3) The contractor launched a force or instrument of harm by creating or exacerbating a hazardous condition.
Moreover, on November 2, 2012, a New Hampshire Superior Court ruled in the case of Dunshee v. Burhoe, et al. In this case, the court decided that a snow plow operator owed no duty of care to third parties who use premises owned by a party who is in contract with the snow plow operator. In this case, the case of the plaintiff, Steven Dunshee, case was dismissed after the jurists held that the defendant, Robert Burhoe Sr., owed no duty of care to Dunshee. Dunshee slipped and fell on snow-covered ice in the parking lot of the Campton-Thornton fire station where he worked. Dunshee alleged that Burhoe, who had a contract with the Town of Campton to plow and sand the lot at the fire station, was liable for failing to treat the icy conditions within a reasonable period of time. Although this issue has not yet made its way to the New Hampshire Supreme court, it is nevertheless a percolating issue and may only be a matter of time before it does. The court’s decision in Dunshee makes it clear that a snow plow operator’s duty to third parties is not automatic and a snow plow operator does not take the place of the property owner with respect to duties to clear snow and ice. Therefore, the snow plow operator may only be liable to the property owner. Although this decision may provide grounds to request dismissal of a snow plow contractor as a direct defendant in the injured party’s lawsuit, it does not insulate the snow plow operator from third-party actions for breach of contract which the property owner may file against it.
Plaintiffs also cannot directly sue a snow plow contractor in the State of Maine. This principle was established in the 1998 Maine Supreme Court’s ruling in Denman v. People’s Heritage Bank. In this case, the plaintiff slipped and fell on a public sidewalk in front of the bank that People’s Heritage Bank was required by law to keep clear of snow and ice. The bank had contracted with a snow removal company to shovel and treat the sidewalk. The plaintiff fell and filed a lawsuit against the bank and the snow removal company for damages stemming from his injuries. The trial court dismissed the plaintiff’s case on summary judgment. The plaintiff appealed but the law court agreed that the dismissal was proper and reasoned that neither the bank nor the snow removal company owned the land where the accident happened. Since the bank did not possess the land, but instead maintained it merely to comply with a local ordinance, it owed no duty of care to the plaintiff.
On the opposite side, plaintiffs generally can assert direct causes of action against snow removal contractors in Connecticut, Massachusetts and Vermont.
Regardless of where you perform your operations, here are some recommended practices that snow plow contractors can follow that may help avoid future slip and fall claims:
- Always use a contract for work agreements, and review and understand the implications of provisions that could expand your liability to the property owner. Provisions such as “24 hour monitoring” and “plowing to bare pavement” may sound attractive to a potential account but is extremely burdensome and may further subject you to potential liability. It may also benefit you not to take on the burden of deciding when you should go out and perform your duties.
- Have a backup plan for major storms. It is a best practice to have additional experienced employees on call or a few extra subcontractors on hand so you can diligently comply with all the terms of your contract.
- As you take the time to ensure your own proper insurance protection, it is important that your subcontractors do so as well. Require your subcontractors to furnish you with Certificates of Insurance and require that their liability limits be at least equal to your limits. Ask them to give you a copy of their insurance policy. Certificates of Insurance are usually just evidence of insurance and not actual proof of insurance. Have a contract in place with your subs that includes indemnification language and an obligation that you be named as an additional insured on a primary basis under their policy. Look for proof of this when you request a copy of their policy.
- If the property owner insists on an indemnity clause in its contract with you, it should not indemnify the owner for anything more than your negligence. Avoid accepting responsibility in the contract for the property owner’s own negligence (a faulty drain pipe leading to a reoccurring ice condition is one example).
- Document! Document! Document! Keep good records of your snow removal business. It is important to be able to prove that you did what the property owner paid you to do. Keep clear and accurate logs of weather events and the time and place where your operations were performed. Keep a log of incoming calls and be sure to document any requests for extra services that may fall outside the contract.
We are in this together and we are here to help. Please do not hesitate to contact your trusted advisor at Acadia for more information.
Acadia is pleased to share this material with its customers. Please note, however, that nothing in this document should be construed as legal advice or the provision of professional consulting services. This material is for general informational purposes only, and while reasonable care has been utilized in compiling this information, no warranty or representation is made as to accuracy or completeness. Distribution of this information does not constitute an assumption by us of your obligations to provide a safe workplace. Maintaining a safe workplace in accordance with all laws is your responsibility. We make no representation or warranty that our activities or recommendations will place you in compliance with law, relieve you of potential liability or ensure your premises or operations are safe. We exercise no control over your premises or operations and have no responsibility or authority to implement loss prevention practices or procedures.