Snowplow Contractor Liability

TOP FIVE WAYS TO LIMIT SNOWPLOW CONTRACTOR LIABILITY IN NEW YORK

Limiting liability for snowplow contractors in New York is particularly challenging because they are frequently named as defendants in slip and fall cases occurring on commercial properties during the winter months. However, there are a few small steps that claims professionals can share with their contractor clients to mitigate their exposure to liability.

#1 IT'S ALL ABOUT THE CONTRACT

Many snowplow contractors are landscapers or construction contractors who plow as a second job in the winter and just attach a plow to their pick-up truck and hook a salt-spreader to its back. They often don't have the time, care, or financial resources to spend their money on hiring lawyers to negotiate a contract on their behalf, nor realistically, do they have the bargaining power to negotiate a fair contract with larger, sophisticated business entities.

Pay Particular Attention to Indemnification Provisions. Make sure that your contractor is only agreeing to indemnify and defend the owner for claims or damages arising out of your contractor's own negligence. Blanket indemnifications and hold harmless provisions that require the contractor to defend and indemnify the owner for any and all claims that arise out of snow or ice accumulation could ultimately mean being ordered by a court to pay for two defenses, the contractor's and the owner's. However, there are cases which have held that snowplow contracts do fall within the ambit of NY General Obligations Law § 5-322.1(1), which prohibits a party from contracting away liability for its own negligence.

Specifications. Have your snowplow contractor pay particular attention to where he is supposed to push or pile snow on the property. Don't agree to push or pile snow into corners of parking lots that are adjacent to pedestrian walkways or high foot-traffic areas, where run-off can lead to dangerous, icy conditions and unwanted claims.

#2 BEFORE IT SNOWS, LOOK FOR DANGEROUS/DEFECTIVE CONDITIONS

It is a good idea for your snowplow contractor to visit the property he will be plowing BEFORE the snow season begins or prior to the execution of the final contract, to look for any dangerous or defective conditions such as potholes, raised asphalt, etc. BEFORE they are covered with snow. If the parking lot is in disrepair and will likely be difficult to service, your contractor may face issues with his own snow removal performance and may not be able to perform his job properly. Written notification to the owner is the best way to show the owner was "on notice" of the condition.

#3 USE A SITE MAP

Make sure the contract specifies which exact areas of the property for which the snowplow contractor is responsible for. Or better yet, have the owner attach a site map as an exhibit to the contract. Site maps clearly delineate the area of responsibility for the snowplow contractor, and is especially helpful when an operator is filling in for your insured client and thus not familiar with that account. A site map is a useful tool for clarifying EXACTLY which portions of parking lots, driveways, walkways, service roads, and entranceways the contractor is responsible for.

#4 LET THE PROPERTY OWNER CALL THE SHOTS

Stay away from comprehensive maintenance agreements. The Court of Appeals has held that snowplow contractors cannot be held liable in tort to injured third-parties unless:

They launched an instrument/force of harm (by negligent performance of the contract);
The injured third-party detrimentally relied on continued performance of the contract; or
The contract was so comprehensive and exclusive that it entirely displaced the property owner's duty to maintain the premises safely.

See Espinal v. Melville Snow Contractors, 98 NY2d 134, 140 (2002).

Sometimes a contractor's duty to plow is triggered upon a certain amount of snow or ice accumulation. However, property owners often like to save costs by reserving for themselves the decision as to when to plow and salt. This is especially true with respect to salting and/or sanding. Due to the rising prices of salt, more and more property owners are requiring the contractor to first obtain permission before salting, as opposed to allowing the contractor to salt at his discretion. Some companies also have policies against salting and sanding in certain areas because the abrasion can cause damage to floors.

Liability and control generally go hand-in-hand. Therefore, the more control and supervision the owner retains and exercises, the more likely it is that a snowplow contractor will be granted summary judgment (presuming they did not create or exacerbate the condition at issue). At the very least, exercising this control will keep the property owner in the suit to share some of the liability with your insured contractor.

#5 DOCUMENTATION IS KEY

New York courts have consistently held that a plaintiff's conclusory assertion that a snowy or icy condition was caused by negligent snow removal is insufficient to raise a triable issue of fact. Plaintiff would have to show some evidence that the snowplow contractor created or exacerbated a hazardous condition of the property (by "launching a force or instrument of harm") in order to defeat a summary judgment motion.

Accurate record keeping is vital to minimizing financial liability in the event of an accident. Having your contractor client keep accurate and complete documentation of all his activities, including a record of all plowing and salting date and times, will help assist defense counsel in asserting your insured contractor's defense. It can help show that the snowplow contractor was not even on the property on the date of loss, had not duty to be there, or can show that the contractor actually fulfilled all of its snow removal responsibilities on the date in question. Furthermore, recordkeeping and documentation also helps create a professional and conscientious image of your client's snow removal company in court.