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Sometimes the contractor wins.

Discussion in 'Commercial Snow Removal' started by grandview, Nov 7, 2015.

  1. grandview

    grandview PlowSite Fanatic
    Messages: 14,609

    There is a science to clearing snow from a parking lot so that people don’t get hurt, and a State Supreme Court jury in Cattaraugus County decided this week that owners of an Olean mall ignored it. Deliberating less than three hours after two and a half weeks of trial in civil court, jurors awarded a bank employee who fell in the parking lot $3.4 million.

    According to her lawsuit, Debra Finch of Portville was walking to work at the Key Bank building on the property of the Olean Center Mall in January 2010 when she fell on ice created from melting snow in the parking lot. She fractured her right elbow and has been unable to work since that time.

    Finch sued the owners and operators of the mall and its parking lots, ZRAJ Inc. and Zamias Services, and the snow-removal company contracted by the mall. She contended in her suit that the dangerous conditions in the parking lot had been known for years and could have been prevented.

    Her attorneys, Francis Letro and Ronald Wright, produced witnesses – including the snowplow contractor – who testified that ice problems were constant. Snow piles from the bank-employee parking area would repeatedly melt and then freeze into sheets of ice.

    “This wasn’t natural ice, this was man-made,” Letro said when asked about the case Friday.

    Witnesses said that the mall also did not want its plow contractor to use salt or sand on the property. At the same time, in what Letro said was particularly important testimony, the property’s maintenance superintendent said the owners cut back his staff’s hours and resources before Finch’s fall.

    Finch, who is in her 40s, underwent four surgeries on her broken elbow but still lost all use of her right arm. She then developed carpal tunnel syndrome in her overused left arm, Letro said. Doctors and vocational counselors testified that Finch has become permanently disabled, and an engineer testified about proper standard practices for safe snow and ice removal.

    The jury found the property’s operator, Zamias, to be 100 percent at fault for the injury and its award to Finch includes damages of $220,000 for past loss of earnings, $500,000 for past pain and suffering, $1.1 million for future loss of earnings, $100,000 for loss of household services and $1.5 million for future pain and suffering.

    Acting Supreme Court Justice Michael L. Nenno presided over the trial.
  2. 1olddogtwo

    1olddogtwo PlowSite Fanatic
    Messages: 12,174

    Sounds like the lower baller got lucky.

    Why would a professional company take on such a problem?
  3. Dogplow Dodge

    Dogplow Dodge PlowSite Veteran
    from NJ
    Messages: 3,699


    You would think the contractor would be found liable for something, such as forgetting to put the toilet seat back down ?

  4. Buswell Forest

    Buswell Forest PlowSite.com Addict
    from NH
    Messages: 1,668

    Iron clad indemnification in the contract...make em sign it 3 times.
  5. FredG

    FredG PlowSite Veteran
    Messages: 3,413

    Wow the snow contractor got lucky. I wonder why the contractors insurance company did not come by and check that salt was present. I did a mall with a guy and the insurance Co. would send a guy around now and then to see if salt was present.

    I have no idea why these property owners always want to cheap out for snow services.
  6. GMC Driver

    GMC Driver Senior Member
    Messages: 740

    I agree Fred, but if they can get away with it, why not? There are regions where the snowfall rate simply negates salting, and combined with a lowest-price mentality, results in treacherous conditions. I only need to mention Erie, PA - I've been in parking lots there in December that would have me fired at home.

    What's peaked my curiosity here is how the contractor ended up supporting the plaintiff's claim. Interesting tactic.
    Last edited: Nov 7, 2015
  7. Dogplow Dodge

    Dogplow Dodge PlowSite Veteran
    from NJ
    Messages: 3,699

    Maybe, He was offered a plea deal by the prosecution?
  8. Brian Young

    Brian Young PlowSite Veteran
    Messages: 3,394

    It always amazes me how far they are willing to go to save a buck. We have a couple that are no salt and still makes me nervous even though we're relieved of all liability if someone fell, hell I fell in one of them last year getting out of my truck...I anit gettin' any younger and it friggen hurt! It's just unfortunate this happens.
  9. 1olddogtwo

    1olddogtwo PlowSite Fanatic
    Messages: 12,174

    My view is different I guess. As a snow contractor, we should have full, did I say FULL control over the property and the responsibility of maintaining it.

    The PM shouldn't be dictating what services they want or specifically what they do not want, its all or nothing.

    A hold harmless agreement is just a useless piece of paper. You still have the real life possibility of being dragged through the legal system at your expense, I'm sure the expense of maintaining the properties could be less. In the end, you may not be held responsible legally speaking, but still.

    I do agree not all regions can salt but if the continuity between all properties in the region are treated the same respect that is considered the norm and due diligence is done
  10. FredG

    FredG PlowSite Veteran
    Messages: 3,413

    I'm sure it was something like that. He was relieved and the mall took the whole blow.
  11. GMC Driver

    GMC Driver Senior Member
    Messages: 740

    I would agree with you - this scenario isn't one I'd be interested in being involved with. And it likely isn't one you would see in our area, certainly not at a mall.

    I would also agree that there has to be continuity in the region. Olean is a snow belt area, so I don't know if this is a common condition there or not. If it were a common condition, then I would think there would be more emphasis on the plaintiff - if she worked in the mall, she was certainly aware of the hazardous conditions. Did she ever contact the property management to complain about the conditions? Or even to her superior at the bank? And if she was aware, what steps did she take to ensure her own safety?

    But let's be clear - the mall ownership/management has an obligation/responsibility here. As a contractor, I'm quite certain I wouldn't want to be associated with such negligence.
  12. FredG

    FredG PlowSite Veteran
    Messages: 3,413

    You are not thinking differently. Even relieved from salting you still could end up in court with the property owner. A sharp attorney and a jury that feels sorry for the victim you could have some troubles.
  13. FredG

    FredG PlowSite Veteran
    Messages: 3,413

    Anyway you view this post the snow contractor was very lucky. Just my opinion not fact.
  14. Brian Young

    Brian Young PlowSite Veteran
    Messages: 3,394

    I agree 1000000%. We do get some of the most extreme weather around here but it's nothing new or shouldn't be anything new to companies around here who do this. You are right, some of these lots are a train wreck well after a storm and there's one company around here who is responsible for a lot of it....and they get away with it year after year. It's the state of the country any more, everyone's cheap and no one gives a sh*t.
  15. dieselss

    dieselss PlowSite Fanatic
    Messages: 11,392

    How? You tell the p.o. it needs salt, they say no. What are you gunna do now? Thrown down salt? Document it and keep the records.
  16. FredG

    FredG PlowSite Veteran
    Messages: 3,413

    I think the point was do not let the PO tell you how and when to perform your service. You as a contractor have to have liability's for slip and fall. And PO don't care. You were hired to maintain that property safely. I guess it should be the whole service with no avenues from the PO.

    A lot of these property superintendents are yes men. If the boss tells him try to save on are salt trips. Knowing it is not safe without salt this is what he will do. Besides don't pile snow in front of my biz etc. They have nothing to say to me unless my performance is not to par. I give a 100% and above. If my service is not to par. I will leave with no negativity.
  17. peteo1

    peteo1 PlowSite.com Addict
    Messages: 1,660

    No kidding. There are places here I try not to venture into because the winter maintenance is so poor. Its unreal how people get away with this year after year withoutslip and fall claims. There's 2-3 companies around here that do the majority of the medium-large commercial lots and all of them leave a lot to be desired in my opinion.
  18. FredG

    FredG PlowSite Veteran
    Messages: 3,413

    We got a decent size plaza wide open just light poles no islands. 3.5 to 4hrs 1 man with loader 16ft pusher the guy did a great job. The guy that was sweeping the parking lot low balled him. He has two sweeper trucks with plow and a old tractor loader 2wd no cab.

    He got big piles all over the parking lot and can not get snow to end of parking area. He's all over the local forums how bad the property is and the owners name and address posted on the forum. I contacted them and never even wanted a price told me they were all set. My wife won't go in there. I go in there to laugh when it cold and he is out there with that no cab loader.
  19. jhall22guitar

    jhall22guitar PlowSite.com Addict
    Messages: 1,056

    Contractor had the proof in the documentation and emails to prove that the Mall was saying no to services that they said was needed for the safety.

    Emails are key, doing anything for business I always try to use email, makes sure there is proof.
  20. Wilnip

    Wilnip Senior Member
    Messages: 592

    Zamias owns the mall here in Johnstown, PA also. I dont service the mall, but I do service a few of its out parcials so I see how the mall property is maintained. Same suition here. They do not use salt 99% of the time. They only use anti skid on the road around the property.