September 1, 2014
Action can reduce risk of slip-and-fall claims
BY ROBERT KENNALEYMore than 15 years ago, winter maintenance contractors faced a crisis in relation to insurance: The number of insurance companies who would insure contractors was decreasing and premiums were escalating rapidly, all in response to an increasing number of slip-and-fall claims and the resulting insurance settlements. In response, Landscape Ontario and CNLA took a number of steps, including a lead role in creating and marketing Hort-Protect insurance, and development of a standard-form contract for winter maintenance services in the commercial context. As well, a substantial push was directed towards educating member contractors about managing the risk of the slip-and-fall claim, and energy was put into affecting change through political and bureaucratic means.
For years, our focus was on liability for slip-and-fall and other ice-related accidents. This was because, no matter how sophisticated and comprehensive the ice melting strategy, the contractor’s concern was that he or she would be accused of not putting enough salt down in the event of an ice-related injury. It was also because, when claims arose, we were unable to point to a standard or guideline to disprove the allegation — to show that the contractor had met universally accepted and reasonable requirements. As a result, owners pushed liability onto contractors, contractors put more and more salt down to manage the risk, contract prices increased accordingly and insurance rates skyrocketed because defending a claim was uncertain. In the meantime, damage has been caused to our environment and infrastructure by excess salt applications.
Start with a clear contract
Our efforts to encourage better contracts and practices should be a familiar refrain by now. The terms and conditions of the contract are extremely important because if it is not clear what the contractor agreed to do for his or her money, in the event of a claim, it will be difficult for a court or insurance company to determine whether or not the contractor was at fault. All contractual terms and conditions should preferably be specifically tailored to the snow and ice maintenance industry. The contract should also specify which of the parties is responsible to make the call as to if, when, where, and in what quantities ice melting products should be applied. Find the standard-form snow and ice maintenance contract at www.horttrades.com/standard-form-snow-and-ice-maintenance-contract.
We have encouraged contractors to insist that the scope of work under their contracts be as detailed as possible, so that it is clear what the contractor is being paid to do for his or her money. In this regard, we have suggested that a site map, which details the work, is virtually a ‘must.’ We have also suggested that contractors should specifically exclude responsibility for circumstances beyond their control, for areas not included in the contract, and for areas in disrepair where the risk of a slip and fall increases.
Other contractual terms and conditions we have recommended include provisions that address salt shortages and notice provisions which would require the contractor to be given timely notice of a slip-and-fall claim. We have also emphasized that “hold harmless” clauses should only apply if the contractor is either negligent or fails to perform his work in accordance with the contract.
Detailed record-keeping required
From a practical perspective, we have emphasized that the contractor should be able to show that he or she had a reasonable system in place to ensure that the contractual obligations were being met. In addition, we have emphasized that the contractor should have, and keep, sufficient records to show that the contractual obligations were met — on any given day, at any given time and on any given premises.
In relation to all of the above, CNLA and its affiliated provincial associations have been active in offering training on all of the above. More recently, CNLA and Landscape Ontario have been active in working with the Smart About Salt Council, an independent not-for-profit organization which has established, among other things, that throwing more and more salt at a snow and ice problem is not a sustainable solution. In addition, Landscape Ontario and CNLA have been working closely with University of Waterloo researchers, who are working towards the creation of scientifically-proven best practices and salt application rates for use in the snow and ice maintenance industry. In this regard, we have been working with other stakeholders in the industry, towards a day when the maintenance contract might simply require the contractor to meet a scientifically established and universally recognized standard for rates and practice — standards which the contractor can meet with certainty and with documented evidence.
Ultimately, a good contract is a pre-requisite to a good winter maintenance risk management strategy. That having been said, there are other welcome strategies being undertaken by CNLA and its member associations that have an enormous potential up-side to all stakeholders in the industry. For this reason, we encourage anyone in the industry who has the opportunity to participate in the studies or programs being offered through Smart About Salt or the University of Waterloo to consider doing so. Simply put, the research can only proceed so far as the input and data provided by contractors themselves will allow.
Robert Kennaley, McLauchlin & Associates. Robert practices construction law in Toronto and Simcoe, Ontario and speaks and writes regularly on construction issues. He can be reached for comment at (416) 368-2522 or at kennaley@mclauchlin.ca. This material is for information purposes and is not intended to provide legal advice in relation to any particular fact situation. Readers who have concerns about any particular circumstance are encouraged to seek independent legal advice in that regard.