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contract liability

Discussion in 'Business Fundamentals' started by compedge, Jan 20, 2005.

  1. compedge

    compedge Junior Member
    Messages: 1

    I have a comercial contract that I plow and somebody slipped and broke thier arm and, of course, wants somebody to pay for it. I am contracted with a management company who acts as agent for the building owner. The extent of our written contract is my, perhaps lame, single sheet bid form that lists as the terms and conditions the simple phrase "mututally agreeable". There are no other written terms and conditions between me and the management company. I am well insured but don't want a "ding" against my squeaky clean insurance policy. Am I liable for the slip and fall?

    Does anyone have some benign sounding contract language that a customer will actually sign, that has eliminated thier liability for slip and falls.

    Even after I plow and salt there may exist/persist slippery conditions conducive to a fall. How could anyone accept responsibility for this situation.

    Thanks for the help among friends. :salute:
    Mitchell
     
  2. plowed

    plowed Senior Member
    Messages: 344

    Not being an expert in contract law, it does sound like you are liable. Unless you have a disclosure/waiver in your contract that waves your liability, even the mgmt company will likely go after you. Even with a waiver they would likely look to you, but it does help to have it.The person who fell will likely sue and will list everyone possible. Sorry to hear of the unfortunate accident. Please let us know what happens.

    Others with more experience in this area may chime in...
     
  3. lawnMaster5000

    lawnMaster5000 Senior Member
    Messages: 105

    Courtesy of Cutting Edge Landscaping

    Customer understands that plowing, shoveling and/or de-icing of a particular location may not clear the area to "bare pavement" and that slippery conditions may continue to prevail even after plowing/ shoveling or the application of de-icing materials has occurred. Customer understands that the Contractor assumes no liability for this commonly occurring condition. Customer agrees to defend and hold harmless the contractor for any and all trespasses or suits that may arise as a result of this commonly occurring condition.

    The Contractor will exercise its best judgment in providing the services needed based upon existing conditions and future weather forecasts.
    Customer is aware that weather conditions in the area may change rapidly and without notice. Changes in weather conditions are considered to be an "Act of God" and the Contractor assumes no liability as such.


    I don't know how well that would hold up in court, but it for damn sure is better than nothing.
     
  4. cet

    cet PlowSite Fanatic
    Messages: 7,202

    Regardless of any contract you are going to go to court or at least to disclosure. I have an ongoing case right now. This lady slipped and fell on ICE. My insurance company has the weather data that shows it did not snow for 29 days before her slip and fall and the COLDEST it got for the preceding 36 hours before she fell was 39 degrees. She slipped March 29 and the first call we got regarding the accident was in October. The insurance company has already spent $12,000 fighting this.
     
  5. Elsewhere

    Elsewhere Junior Member
    Messages: 14

    This ruling states resident has no contract with you

    The Supreme Court granted leave to appeal on two issues: (1) whether plaintiff could establish a duty owed to her arising from a contract to which she was not a party and (2) whether a landowner’s defenses are available to a contractor acting for the landowner. In reversing the Court of Appeals, the Supreme Court resolved the first issue in favor of the defendant CML and did not reach the second issue. In its decision, the Supreme Court rejected plaintiff’s argument that CML owed a common-law duty to plaintiff and held that plaintiff’s remedy was available solely against the premises owner. The question for negligence claims brought against a contractor on the basis of a maintenance contract between a premises owner and that contractor is whether the contractor breached a duty separate and distinct from those assumed under the contract. The Supreme Court found in this case that the contractor owed no duty to plaintiff and, thus, her claim failed. Two justices filed a separate opinion, concurring in the result but disagreeing with the rationale used by the majority.

    Read Fultz v. Union-Commerce Associates.
     
  6. Foz

    Foz Senior Member
    Messages: 119

    The best thing that you can do to protect yourself is to fill out a log sheet that shows when you or your employees plow, or salt a location. We use one for each driver, they are required to log their time into a site & out of the site along with the work performed and the amount of salt or ice melt used. So far we have beat 2 suits. It as all about documentation. The clause you are looking for:

    Customer understands that plowing (or salting) of a particular location may not clear the area to “bare pavement” – and that slippery conditions may continue to prevail even after plowing (or application of salt). Customer understands that XYZ Plowing Co. assumes no liability for this naturally occurring condition. Customer agrees to defend and hold harmless the contractor for any and all trespasses or suits that may arise as a result of this naturally occurring condition.

    The important part of this clause is the hold harmless statement. I point it out to all new customers as they sign the proposal.
     
  7. Boutallnite

    Boutallnite Senior Member
    Messages: 197

    A friend of mine that's a lawyer told me that even if you put it in the contract that you will not be held responsible for injuries, they can still go after you.
     
  8. Ken1zk

    Ken1zk Senior Member
    Messages: 192

    When I spoke to my attorney last year with regard to personal injury, he said the same thing BUT if you show (log sheet, materials used listed on invoice, time and date of service listed on invoice, appropriate warnings given, etc) that you performed your work according to "Industry standards & accepted practices" you would minimize your liability in such a case.
    In closing, what these guys have said above.
    Good luck and let us know how things fall out for you, and remember your insurance companies lawyers will be experts in defending you, try not to loose any sleep over this.
    Ken
     
  9. JPMAKO

    JPMAKO Senior Member
    Messages: 660


    Thanks for the plug,

    That is the reason that I posted my contract in other threads. I wanted people to tear it apart and give some input as to what could be changed/reworded. I am not an attorney but have had one review my contract along with my insurance agent who said "wow people actually sign this"? I said yup they don't have a choice It's my terms or goodbye. I have never had a case or suit filed against me for anything but really wanted some way of covering my business assets as much as possible. Hence the new contract. It is 150% better than the one that I have used in previous years, and it has taken a lot of thought to put it together. I would encourage people to look at many different contracts/agreement on this site as there is a wealth of information here, and utilize that information to draw up a contract that best suits your needs. There is no harm in covering your A**
    In this day and age anybody will sue. So be prepared and have good documentation of all work that you have performed, because these things can only help you.

    These are my words of wisdom for the day. :salute:
    Good luck and be sure to tell us how you make out...



    Jason
     
  10. plowman350

    plowman350 Senior Member
    Messages: 125

    legal reasons

    One of the posts asked for "benign language" that people would actually sign. To me, its more important to be blunt. I would much rather have a very wordy contract that explicitly states what I will and will not be responsible for. I usually head off the objections or shock of the contract by telling people that in today's crazy lawsuit world, I would be foolish not to be so clear and to the point. Most people understand and have no problem signing it.

    If people have a problem with the wording of the contract, then they don't sign it and you move on. Much better to be blunt and cover yourself.
     
  11. Ken1zk

    Ken1zk Senior Member
    Messages: 192

    I agree with you Plowman, spell it all out and everyone knows where he or she stands. I had an attorney commend me on mine.
     
  12. somm

    somm Senior Member
    Messages: 200

    Last edited: Jan 26, 2005