Cover your tracks

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. 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.

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 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.

Matthew Peterson is the owner of Mills Insurance Group.