 Once snow is altered by plowing or shoveling, it’s considered an “unnatural accumulation of snow and ice.” |
Snow that melts and then refreeze creates a major liability that is leading to the epidemic of slip-and-fall lawsuits. The responsibility of "ice-watch" or ice monitor is one of the greatest exposures to your snow and ice maintenance company.
Everyone has to focus on this service during the winter months. Most often this includes runoff melting during the day and refreezing at night.
The natural accumulation of snow and ice presents a clear liability on the property. Once it's altered by plowing or shoveling, then it is considered to be "unnatural accumulation of snow and ice."
The term "ice watch" or "ice monitoring" takes the center stage of all discussions. This is the term referring to a professional snow removal contractor taking on the responsibility and the liability of preventing any refreezing on the pavement or sidewalk which could form after a contractor performs his work at the site.
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You're responsible
If you have an existing contract with the ice monitor/ice watch responsibility, follow a few of these steps on your pre-site inspection, in-event documentation and the post-event documentation.
Michael Branch of Northeastern American Services, says post-snow storm freeze-and-thaw cycles create potential liability for snow contractors and their customers. Timely and properly documented communication is the key for snow contractors to protect themselves. He recommends snow fighters contact all of their customers with a personal phone call and follow up with an email confirming those conversations as to what you will be doing for the days following an event.
"Have a pre-season walkthrough, be familiar with site problem areas from the beginning of the season and discuss this in advance with your client," Branch says. "Again, document this and make it part of your contract file."
If a client does not want post-storm service contrary to your recommendation, then send them a "service denial" by registered mail return receipt requested, have it signed by an authorized party and returned back to you. Make sure your administrative staff follows up. Set up a file system for future reference or attach it to the contract.
"Documentation holds true to everything you do for your customer. Many managers are looking to hold budgets tight and control costs, especially late in the season," Branch adds. "If a client denies any snow work that can potentially create a liability contrary to what you recommend, then send them a note and keep it in your contract file."
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The snow fighter is expected to make a reasonable effort to reduce the potential for injury to visitors, customers, guests and patrons while they are on the property in question.
In the contract you sign, whether it's a seasonal contract that is all inclusive or a per-push/per-event contract, pay specific attention to any section that addresses this topic.
Both parties should consider the needs based on the current liability crisis. If a manager needs the services of a snow contractor to monitor the property after an event, then this should be considered in the pricing. Some snow contractors will spell out the hourly rate for an "ice monitor" plus the cost of material used to treat the property.
The trend of seasonal snow and ice management contracts vs. per-push/per-event contracts is on the rise. The seasonal contract won't have restrictions on the amount of salt you apply to a property and will not handcuff the contractor into the directional handicap a call-first-for-permission contract has associated with it.
Make no mistake, property managers are under a fair amount of pressure, too. Like professional snow contractors, they have the outstanding snow contracts reviewed by their own insurance carriers and agents before they're signed and finalized. If the wording of the hold-harmless clause does not favor the property owner, then they will not have insurance available to them or they will pay the extremely high premiums you are experiencing.
It's not uncommon for insurance carriers to tell property owners to add new hold-harmless language that shifts the liability to the snow contractor making them responsible for all snow and ice related slip-and-fall claims after the contractor services the property and leaves the premises. Be vigilant when reviewing any winter service agreement presented to you by the property owner. Some of that language may include the following:
- "Contractor shall monitor the site for thaw-refreeze."
- Making the contractor be responsible and holding the property owner harmless for the presence of snow or ice at the property after the contractor performed services.
- Words like "Any and all claims" are way too broad. Revise the contract to be more specific. Anything too general or ambiguous is bad.
- The PM will ask that the contractor must seek permission to apply anti icing: this is essentially handcuffing the contractor to take on the liability of the refreeze accidents and dictating how they protect themselves.
- How often is the contractor being asked to visit and treat the property after an event? You want specifics, such as temperature triggers according to an agreed weather service.
- Limit the monitoring after the event to a scenario where the client calls you and the call is documented.
All eyes on…
Pay attention to the areas that are prone for refreezing including the placement of your snow piles-
- Puddles or uneven spots in the pavement
- Downspouts or gutters
- Sidewalks
- Shaded areas
- Poor drainage
- Slippery walking surfaces due to melting and refreezing of snow from piles of snow after shoveling
- Overhead snowfall from trees and roofs or awnings. It’s important to pay attention to what is directly over the sidewalk where most people walk.
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Be careful. They may try to make the snow contractor responsible for the ice formation after they leave the site, and handcuff them to seek permission to manage the situation.
If you can't treat the property unless the property manager approves it, then they are tying your hands and will hold you legally liable.
So a good rule of thumb is to not sign contracts that restrict you from applying salt and deicing material if you are the one on the chopping block to be sued for it. The only true way to mitigate the exposure of the "ice watch" is for a contractor to plant a round-the-clock monitor, or a foreman in his truck, sitting on the site to inspect for ice and treat the property, its sidewalks and walkways. If you are in a situation like this – and I've seen some professional snow and ice management contractors face this scenario – then ask to be compensated for time and material.
A big help is to establish great communication between the property owner or manager. Remember, we are a team and the property owners are not the enemy. We are all in this together through the entire winter.
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Keys to limiting your exposure to slip-and-fall
Snow should be viewed as universal hazard. As a service provider, here are some keys.
- Identify if ice monitoring is included in your responsibility of the contract.
- Avoid signing the contract that has the contractor responsible for ice monitor without everyone fully aware of the responsibility.
- Analyze the areas of the site that may create the refreezing environment.
- Control what you can and make sure you can handle the task.
- Evaluate the effectiveness of the process and adapt the procedure during your off –season.
- Purchase warning signs and station them at the property for a few days following an event. Then pick them back up when it's free and clear. Make the slip and fall hazard sign apparent to everyone who has two legs.
- Have a well-planned strategy and implementation of a snow removal plan. I suggest a team approach between a professional snow contractor and the property manager.
- Assign the responsibilities of the contractor vs. the property owners' maintenance staff.
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Matthew Peterson is the owner of Mills Insurance Group and writes Snow's insurance column.
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