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Law in your favor... Put it in writing.

Discussion in 'Commercial Snow Removal' started by OffRoadPlow, Jan 7, 2003.

  1. OffRoadPlow

    OffRoadPlow Senior Member
    Messages: 247

    I did not find a similar post so forgive if I am continuing a different post... Also for the length... Just think it could help some...

    I was reading through quite a few court records online for my state and found some very interesting information about protection against the complaints that happen from time to time. Obviously if you’re careless most contract weavers are out the door, but for those that drive and push like they should this could be helpful if it has not been brought up before, if so I am sorry...

    In Michigan for example there are all sorts of claims that come up but some much more that others, that with some simple wording could save your a$$ if a claim ever came about. I would only suggest that you consult a lawyer with your wording and ideas, but one example is in a case that the following was stated:

    "To recover under a premises liability theory, a plaintiff must show that defendant was a possessor of the premises at the time of the plaintiff's injury. A "possessor" of land is: (a) a person who is in occupation of the land with intent to control it; (b) a person who has been in occupation of land with intent to control it, if no other person has subsequently occupied it with intent to control it; or (c) a person who is entitled to immediate occupation of the land, if no other person is in possession. Possession of or control over premises requires control to the exclusion of others or exercising command over the premises. Liability is conditioned upon possession and control to render the person best able to prevent harm to others responsible."

    After speaking with my attorney, I asked if this person’s contact stated that the company, driver, plow personnel, etc... Was never a possessor or had intent to control it if they would be liable for the above? He said with the right wording, it should cover against most of the actions that are brought against plow companies, not in all cases, but it would help in the majority of them,,,

    Needless to say it's going into mine, more than I had before, but better to be save than sorry,,, I would think, and please correct me if I am wrong. Oh, and no, they were not able to show any wrong doing by the plowing company... :drinkup:
  2. Temco

    Temco Member
    Messages: 66

    I've read your post 6 times and still have no idea what it means :confused: are you trying to say that snow removal contractors can't be held liable for a slip and fall? or does it construe to mean that whoever owns the property is ultimately responsible for it regardless of who they hire to maintain it?
  3. JohnnyU

    JohnnyU 2000 Club Member
    Messages: 2,037

    I think its just a fancy way to say that the property owner takes all responsibility for anything that might happen, slip and fall, etc. and that the 'visiting' property maintainer is not liable, under any circumstances.

    Interesting wording of such a statement, do you think it would confuse the customer? It is nice to know that this will stand up in court.....
  4. OffRoadPlow

    OffRoadPlow Senior Member
    Messages: 247

    It should, just remember every judge is diffrent

    Sorry, Just wanted to get the point across that if you read up on the cases in your state, you can probably write a contract to CYA for most of the cases that are brought against snow plowers. No contract will hold up %100 to anything, I have found is that in most of the cases against Michigan Snow Plowing/Removal/Salting companies if the driver does his job correctly, he is usually not at fault. When the driver has a well-written contract, even more difficult to hold accountable. If the driver is Negligent, they will usually be found guilty and pay out the..... :rolleyes:

    Oh, and the ones that usually are found negligent, have done something like leaving snow piled by the lot, then melts, then freezes, then s-n-f, then court.....
    Last edited: Jan 8, 2003
  5. Temco

    Temco Member
    Messages: 66

    One of the books I own (Smart Business for Contractors by Jim Kramon) it states in part under the contracts chapter that s you should stick to plain understandable language and not try and get caught up in legal terms you/they don't understand.......just my 0.02 cents.
  6. Got Grass?

    Got Grass? Senior Member
    Messages: 641

    Keep the contracts simple, plain language the normal Joe can understand.
    Write it properly with the right words & your fine...
    Yeah someone will eventually try & sue your ass but as long as you have the contracts wrote out the proper way you will have no problems holding it up in court.
    It's when the property owner drafts the contract you need to worry about.

    Keep it simple w/o all the "Big" confusing words with many meanings & your fine.
    3 lines of the contract is plenty for a "hold harmless" clause.
  7. OffRoadPlow

    OffRoadPlow Senior Member
    Messages: 247

    Keep is simple....

    Could you post your examples? I believe it's possible, I am just trying to get mine complete. I went off one from the company I use to work for a while back, but I have been adding to the CMA sections.

    Thanks for the input. It really helps.
  8. kojak

    kojak Member
    Messages: 32

    I'm about to go to my lawyer to get him to write up liability, payment, and act of god clauses for my bid's and contracts. To cut down on legal fees payup draining my accounts, he suggested my bringing him examples of industry specific contracts to work from. So if anyone will e-mail or post the language of their contracts I'd really appreciate it.



  9. Rob

    Rob PlowSite.com Veteran
    Messages: 306

    I don't really have anything that would be useful to you but I can suggest that if you're a member of SIMA, I believe that they provide samples along with your membership.

  10. digger242j

    digger242j Senior Member
    Messages: 672

    I'd think not necessarily who owns it, but who's paying you to plow it. In a large number of cases you might be contracted to a customer who is renting the property from someone else, and you would never even know who actually holds title to the property, nor would you have a reason to. The point being that you don't *control* the property,(and while it's rented out, neither does the title holder), you just come there to push snow around.
  11. Mick

    Mick PlowSite.com Veteran
    from Maine
    Messages: 5,546

    Come to think of it, digger242j makes a good point about "control". A renter has a right to keep the owner out of his (the owner's) property, but an owner could not keep a renter out of property for which rent is paid. So, in that scenario an owner would not be liable as long as he is renting out the property. Unless you wanted to show that the owner had ultimate control. He can kick out the renter; The renter cannot kick out the owner (from being the owner).

    I still say - Anyone can be sued at anytime for anything. That's why we pay insurance and why we have more lawyers than doctors or mechanics.:rolleyes:
    Last edited: Apr 7, 2003