“Smart Contracts: Protecting Yourself”

December 18, 2006 - by PinPoint

Rob Kennaley has a long association with Landscape Ontario and is a seasoned professional in supporting Landscape Ontario Members with expert legal advice. On Sept 12th, Rob addressed the Snow and Ice Symposium at Landscape Ontario’s offices in Milton, with his presentation: “Smart Contracts: Protecting Yourself”.

Risk Management

Among other things, Rob emphasized the need for well executed contracts to protect the LO member as well as the Client. A contract should include such topics as Scope of Work, Specification and Schedules, Site Plans, Work to be performed and limitations. Snow Removal companies strive to meet their contract’s obligations and keep their client’s premises safe for commuting. Unfortunately, Slip and Fall claims are part of this business and can prove to be costly for all parties. A successful lawsuit can send your insurance costs spiraling and in some cases make your company uninsurable Although it is not possible to remove the risk of such claims totally; the good news is that you can take steps to minimize that risk and demonstrate that not only did you act in good faith but you took necessary steps to ensure the requirements of the contract are met. The following are a few essential guidelines to help you during the Snow Season

Contract Negotiation

The first step in the process is to ensure you have a contract that clearly outlines the obligations of each party. Property manager’s often favor using a “one size fits all contract”. If possible, insist on using a contract which is specifically drafted to reflect the unique nature of winter maintenance services, such as Landscape Ontario’s Standard Form Snow removal contract. If in doubt where you are obligated to use the client’s forms, take the necessary steps to have independent legal advice. Make sure that it does not hold the other party harmless in the event of a slip & fall for anything beyond the contractor’s breach of contract or negligence. Also, do not promise the impossible, such as keeping the premises clear of snow and ice at all times. Ensure that you are not assuming risk in other areas of the property which are not stipulated in the contract, such as indoor maintenance, proper lighting, sidewalk quality etc. A well designed site map is always recommended

Record Keeping

Rob noted that when winter storms roll in, time becomes a scarce resource. In the rush to beat the onslaught of snow, it is often tempting to move onto the next site and record your activities after the fact. This can lead to errors or uncertainty if records are later required to support the defence of a slip and fall claim. Even with the best contracts possible, it is not possible to eliminate the risk of slip and fall claims. As a Professional, it is imperative that you keep prudent records of your Snow removal activities as proof of work completion. If a slip and fall lawsuit case occurs, your records will be critical towards proving what work was performed. It is highly recommended that you have the essential documents to support your claims of having met the contract obligations. At each site carefully record your activities. If it is a large property, you will need to break the record keeping up. Rob noted that GPS technology is very useful and worth considering because it can automate the record keeping process, ensuring that accuracte records are taken in a timely fashion and because it eliminates a lot of the time and paperwork associated with record keeping. GPS records represent an unbiased account of the event in question.

Protocol

Ensure your employees are aware of your record keeping expectations and follow up with them regularly that they are complying with these requirements. Should you have to defend a Slip and Fall Claim, you will need to demonstrate to the court that not only did you have an effective record keeping system, but that you trained your employees and properly evaluated their performance.

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