Looking back to move forward

Lawn & Landscape: Explain why it was time to follow up the 2009 slip-and-fall research and its impact on the snow and ice management industry. What were you hoping to achieve?

Kevin Gilbride: Well, to best explain this let me take you back a bit. Bogus slip-and-fall claims had been a cancer on this industry for a long time prior to 2009. And the ramifications of these claims were far reaching, from liability insurance coverage – or lack thereof – to time-consuming and costly legal procedures to how the industry approached the business of snow and ice management. Frankly, the industry was in jeopardy of imploding because insurance providers were leaving at an alarming rate and the cost to do business was very unattractive.

So back in 2009 – even before the creation of the Accredited Snow Contractors Association in 2012 – your sister publication, Snow Magazine, conducted the first research project we know of in the industry that looked at slip-and-fall. Luckily, this study produced a baseline of sorts for the impact, attitudes and trends of slip-and-fall claims on snow and ice management.

The ASCA was created in 2012 due to an industry outcry for someone to address the trend of skyrocketing insurance costs. As part of the ASCA’s due diligence, another slip-and-fall survey was conducted that year, but in a more limited capacity. It essentially assisted us in filling some gaps from the 2009 study and allowed the association to more clearly define the issues’ impact on the industry.

Since 2012, the ASCA has achieved a number of important accomplishments that addressed our original mandate, the insurance question, which also includes slip-and-fall. We established the first official Industry Standards and the certification (ASCA-C) ensuring industry members understood those standards. We established ISO9001/SN9001 certification that validated whether a company had correctly adopted and practiced Industry Standards in its operations. As a result, the insurance companies began to take notice that practices and procedures were being followed and allowed them to better combat bogus slip-and-fall claims.

In addition, the ASCA was beginning to have success on the state and federal levels lobbying for issues such as tort reform and laws that addressed business needs in the snow and ice management community. For example, the ASCA’s model legislation – which seeks to prohibit unfair hold-harmless language in service contracts – is under consideration in a number of snow states and has been adopted into law in Illinois.

All of that being said, we knew, and ASCA members knew, we were having a positive impact on the industry. Conducting a follow-up survey now allows us to not only attach some data that supports these notions, but also allows us to more clearly define where we need to allot our focus and resources in the months ahead.

L&L: So, what are the numbers telling you?

KG: Frankly, many of the results are in line with where I anticipated they would be. I think it’s important to mention up front that 40 percent of survey participants had earned ASCA-C certification, which I see reflects the inroads the association has made with the snow contractor community.

We’re certainly excited to see that survey respondents reported nearly half (49 percent) of slip-and-fall claims made against them were dismissed, compared to around 40 percent in 2009 and 2012. Likewise, contractors say 46 percent of these claims are settled out of court, compared to 42 percent in 2009. This is also encouraging data when you consider respondents indicate instances of slip-and-fall claims per winter are up. More than half (58 percent) of respondents experience a slip-and-fall claim during an average winter, a 10 percent increase from 2009.

While we’ve experienced success and have been able to chalk up some significant wins for the industry, we’d be kidding ourselves if we expected to see huge double-digit swings from over the last five to 10 years. We know, and what we’ve communicated to members and the industry since day one, is that this is a marathon and not a sprint, where we mark our progress in inches and feet and not miles.

L&L: What are the numbers not telling you?

KG: That’s a great question, because anytime you conduct this type of research there are any number of extenuating circumstances that also must be taken into account.

For example, what type of winter were we either engaged in or had just emerged from when the survey was completed? That’s going to have an impact because there’s less opportunity for a slip-and-fall claim during a warm, low-snow winter as in a heavy winter, or even one marked with more instances of ice than snow.

Another detail the data doesn’t tell the complete story on is the impact of the involvement in the snow and ice management community on these issues. Outside of pursuing education and earning certification, it is difficult to quantify the impact contractor involvement – especially on the legislative side – has had on slip-and-fall.

L&L: The topic of “hold-harmless” was an important part of this research. Why, and what does the data indicate?

KG: The ASCA has always advocated to let the professional snow and ice contractor make the decisions on when to plow and deice a property. However, a trend among managers and property owners was that many of them believe they know best on when to pull the trigger for winter services. Now, I can only guess as to whether this is a financial decision on their part, but the fact of the matter is the contract language often leaves the burden of liability on the snow contractor. And many property owners employed a take-it-or-leave-it policy when including this “hold-harmless” language in their winter service contracts. So, the snow contractor is on the hook if there is a slip-and-fall claim.

The ASCA has been very active in trying to correct this by lobbying at the state level for the adoption of its model legislation, The Snow Removal Service Liability Limitation Act. This legislation would make indemnification agreements and hold-harmless language passing liability from the property owner or property managers to the contractor, null and void. The legislation is under consideration in state legislatures around the snowbelt, and it became law in Illinois in August 2016.

Now, the survey data would indicate that hold-harmless and indemnification agreements are still a real problem in the snow industry, and that the needle has moved very little in favor of the contractor. However, while this may seem disappointing, it is also proof that this issue is still real, and that action is still required at the state level to correct it.

L&L: What do you anticipate the numbers will say in the next five to 10 years about slip-and-fall and the snow and ice management industry? Will it still be a major issue, or a thing of the past?

KG: I have a two-fold response to this question. First, I believe we’re going to see some degree of progress being made every year. And at times, that progress is going to feel glacial in pace as often as that momentum feels rapidly lurching forward. But we are making progress for the betterment of the snow and ice community, as these numbers reflect.

Second, the pace of change is entirely dependent on community involvement. I’ve seen this firsthand through our state legislative day events. Every time a sizeable contingent of snow contractors join together to meet with their elected officials to talk and educate them on the issues important to this industry, we make progress. Just like we made progress in Illinois, and like we’re about to in Colorado and a number of other states.

The key here, though, is size. To make significant strides against slip-and-fall or to right unfair business conditions, we need more contractor involvement. Now, this involvement can come in the form of adopting Industry Standards and gaining certifications, or it can be through reaching out to your elected officials to remind them that they were voted into office to represent your best interests. You just need to get involved to influence change. Remember, a few isolated shouts can be easily dismissed, but the collective voices of a community can’t be ignored.

So, if we’re able to do these things consistently, then I don’t doubt we’ll see that progression reflected in the numbers.