1. Welcome to PlowSite. Notice a fresh look and new features? It’s now easier to share photos and videos, find popular topics fast, and enjoy expanded user profiles. If you have any questions, click HELP at the top or bottom of any page, or send an email to help@plowsite.com. We welcome your feedback.

    Dismiss Notice

Legal Precedence - Contractor NOT Liable

Discussion in 'Business Fundamentals' started by GripTruk, Jan 21, 2004.

  1. GripTruk

    GripTruk Senior Member
    Messages: 374

    Take a look at the following, I stumbled on it accidentally while searching for parts for my Meyer plow. It is legal precedence which states that, in most cases, the Plow contractor will NOT be liable for 3rd party injuries occuring on the property.

    If you search for "Espinal v. Melville Snow Contractors," you will find several discussions of this case. I think this is good news for some of us who worry about this, and I hope it helps someone out....enjoy!

    -Jer

    ---------

    THE SNOW REMOVAL CONTRACTOR IS GENERALLY NOT LIABLE TO THE PUBLIC IN SLIP AND FALL CASES.

    The Court of Appeals has recently held that a plaintiff who slips in an icy parking lot cannot recover for personal injuries from the snow removal company and

    instead is relegated to recovery from the owner of the premises where the accident occurred. Espinal v. Melville Snow Contractors, Inc., 98 N.Y. 2d 136 (2002).

    In Espinal, the plaintiff slipped on her employer’s parking lot and sued the snow removal contractor. The exclusivity of the Workers’ Compensation Law

    precluded a lawsuit by the plaintiff against her employer. The Court of Appeals held that a snow removal contractor’s obligation to the general public depends on

    whether its contract with the owner of the premises is of a limited nature or is of the type that would constitute a comprehensive and exclusive property

    maintenance obligation. In Espinal, the snow removal company had an obligation to remove the snow only at certain designated times of the day and only in

    certain circumstances where the snow fall exceeded 3 inches. The Court of Appeals held that such an obligation is not of the type that would constitute a

    comprehensive and exclusive property maintenance obligation. The snow removal company did not entirely absorb the owner’s duty as a land owner to maintain

    the premises safely due to the limited nature of the contract. As such, the plaintiff’s claims against the snow removal contractor were dismissed and she was

    left with no legal recourse for her injuries other than claims for worker compensation benefits.

    The crux of this decision is that snow removal contractors are generally immune from suit directly by the plaintiff unless they undertake their snow plowing

    duties as part of a comprehensive and exclusive property maintenance agreement with the landowner. As such, the plaintiffs are relegated to suing the

    landowner who then may bring a third party action for breach of contract against the snow removal contractor.
     
  2. Mick

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

    And the devil is in the details (and interpretation):

    1. This applies only to New York


    2."The Court of Appeals held that a snow removal contractor’s obligation to the general public depends on whether its contract with the owner of the premises is of a limited nature or is of the type that would constitute a comprehensive and exclusive property maintenance obligation. "


    3. "The snow removal company did not entirely absorb the owner’s duty as a land owner to maintain the premises safely due to the limited nature of the contract."

    Note the word "entirely". This means it could have partly obsolved ..... and you, the contractor, could still be sued by the injured party.


    4. "As such, the plaintiffs are relegated to suing the landowner who then may bring a third party action for breach of contract against the snow removal contractor."

    You can bet the plaintiff's insurance company will turn around and sue you.


    Seems to me it only strengthens the need for the contractor to be insured. There is nothing in the article which claims the contractor would be absolved of liability. Just to whom they're liable. The insurance company who had paid a claim will be much more likely to initiate a claim and continue to pursue it than the person who was injured.
     
  3. classicman

    classicman Member
    Messages: 67

    Printing it out...

    ...and crammin' your post in my WALLET, to hand to my attorney when "that day" comes.:salute:
     
  4. ih82plow

    ih82plow Senior Member
    Messages: 109

    Great information

    Kinda wished we could see the contract he had with the land owner.If it just specified snow plowing and ice control was left to others or excluded.
     
  5. computerguy

    computerguy Member
    Messages: 88

    Parts of the agreement (contract)...

    This is GOOD STUFF!!! Gonna be in my contracts next year...:yow!:

    Under the agreement, Melville was obligated to “clear,
    by truck and plow, snow from vehicular roadways, parking and
    loading areas, entrances and exits of the captioned property when
    snow accumulations exceed three (3) inches.” In addition,
    Melville agreed that upon Miltope’s request, it would spread a
    mixture of salt and sand on certain areas of the property. As
    for snow removal, Melville contracted to plow “during the late
    evening and early morning hours, and not until all accumulations
    have ceased, on a one time plowing per snowfall basis. If there
    is a plowable accum. by 4 A.M., and it is still snowing, Melville
    will provide a limited plowing to open up the property before 9
    A.M., and if accum. continue, Melville will plow a second time
    during the day or in the evening after all accumulations have
    ended.”
    By the express terms of the contract, Melville was
    obligated to plow only when the snow accumulation had ended and
    exceeded three inches. This contractual undertaking is not the
    - 8 - No. 63
    - 8 -
    type of “comprehensive and exclusive” property maintenance
    obligation contemplated by Palka. Melville did not entirely
    absorb Miltope’s duty as a landowner to maintain the premises
    safely (see Palka, 83 NY2d at 584). Indeed, the contract stated
    that “t is the responsibility of the property manager or owner
    to decide whether an icy condition warrants application(s) of
    salt-sand by Melville. Owner must inspect property within 12
    hours of work. Any defect in performance must be communicated
    immediately.” Although Melville undertook to provide snow
    removal services under specific circumstances, Miltope at all
    times retained its landowner’s duty to inspect and safely
    maintain the premises. Melville was under no obligation to
    monitor the weather to see if melting and re-freezing would
    create an icy condition.
     
  6. GripTruk

    GripTruk Senior Member
    Messages: 374

    1. I agree with you that this may apply only in New York, but if there is a litigious state, it is New York, for sure, so that may bode well for other states where this may not be such a plague.

    2. On this issue, what I take this as, is that unless you basically are a full service management company taking care of all aspects of property management, then you are not held liable for injuries on the premises if you have fulfilled your contractual obligations.

    3. I think you are reading this the wrong way, I think what they are saying is that the contractor would only be liable if they were COMPLETELY responsible for property maintenance.
    They had a contract to remove snow, and that's what they did, not to guarantee the safety of occupants of the property.

    4. What you quoted here is only applicable if the contractor DID NOT fulfill their contractual duties. Otherwise, the liability rests on the owner, because they decided that the terms of the contract would provide a safe environment.


    I did not post this as way of saying that insurance is unnecessary, or that this is a get away with murder ticket. I think it is just a good example that the law may be on our side here, and that this would be a good weapon to have if you found the need to defend yourself against an action like this.

    -Jer
     
  7. Boast Enterpris

    Boast Enterpris Senior Member
    Messages: 745

    Grrip Tuk, Thanks for finding this great information. I have printed it and placed it in my contract book. Hopefully I won't have to use it. Thanks, Jared
     
  8. The Boss

    The Boss 2000 Club Member
    Messages: 2,099

    I agree. I some little old lady falls on the property AFTER the contractor has salted, the property owner's insurance is liable.:)
     
  9. Ground Master

    Ground Master Junior Member
    Messages: 22

    John Allins take on this would be interesting
     
  10. John Allin

    John Allin PlowSite.com Addict
    Messages: 1,327

    Oh... I'm going to print it out too - and make a few people aware of this....

    Only thing that bothers me is the part about workmans comp. I've been involved in some cases where an employee attempted to sue the plowing contractor and lost. But I don't remember the exact reasons why that happened.

    Either way - this is certainly something to make ones attorney (or even the insurance company's attorney who's defending you) aware of....

    Every little bit helps...... information and knowledge is king.
     
  11. CMerLand

    CMerLand Senior Member
    Messages: 173

    "I think it is just a good example that the law may be on our side here, and that this would be a good weapon to have if you found the need to defend yourself against an action like this."


    The weapon your referring to isnt that the contractor wasnt found liable, but that the contractor (melville) had a contract that exactly spelled out the terms of their snow removal contract with specifics as to how the work would be performed, at what time and at who's discretion.

    Because the landowner took responsibilty over the when and how the contractor was performing the work, as cheap landowners often want too, they then took the responsibilty for determining if the conditions warrented more services. This was the hook that got the landowner and not the contractor. This is why it is so important to have contracts that spell out in great detail, the how and when your services will be performed, and when the liability will fall on your shoulders vs the property owners.

    Do not use vague terms in your contracts as they leave it open for interpretation in the court room. Verbage that says you will plow "as conditions warrent" will get you killed in court vs "at three inch increments" which is easily defined.

    In my contracts, I have specific disclaimers that state if the property owner is going to limit us in how we will do the work, how much materials we apply or the time scope in which we can work, then they absolve my company of all liablity.

    The other big issue, is post storm freeze/thaw site monitoring. It is usually this area where most claims occur, as you lose some of the "reasoable care and concern" protections that plowing during the snow storm offer. Unless you specifically state in your contract who is responsible for maintaining safe conditions at the site to prevent freeze thaw you can be found resposible. So you can either visit your properties every day of the winter to inspect them or you can as I do, insert a clause stating that the client is responsible to notify you of any icing conditions beyond two days after a snow storm.

    Im glad for whoever posted this as I was beginning to wonder if my seven page contract was a bit overwhelming, as it and/or the costs of my services scared away three potential clients earlier this month.

    Having read this, I think I'll stick with my contract as it covers my ass very well, and grows by a clause or two each year because of different circumstances discovered each year.
     
  12. computerguy

    computerguy Member
    Messages: 88

    CMerLand,

    You said it EXACTLY! Contract needs to be specific. In this example the contract got the contractor off. Well worth every penny spent on a good contract
     
  13. rainair

    rainair Senior Member
    Messages: 153

    this is why you use

    this is why you use an Attorneys to write/or clear your contract, don't copy and think that will cover you.
     
  14. rainair

    rainair Senior Member
    Messages: 153

    this is why you use

    this is why you use an Attorneys to write/or clear your contract, don't copy and think that will cover you.
     
  15. GripTruk

    GripTruk Senior Member
    Messages: 374

    I agree CMerLand.
    It does appear that a well written contract was one of the key issues in the snow removal company winning the case. I have made my contract very clear in that respect. I have a whole section which states that the service I perform is snow removal, which does not guarantee safety in any way, and that it is the owner's responsibility to determine if the property is safe for its customers.

    John Allin, it looks like the person tried to initially go after the owner and then after the contractor after that failed or was prohibited.

    -Jer