# Legal Precedence - Contractor NOT Liable



## GripTruk (Dec 1, 2003)

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

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THE SNOW REMOVAL CONTRACTOR IS GENERALLY NOT LIABLE TO THE PUBLIC IN SLIP AND FALL CASES.
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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 employerâ€™s parking lot and sued the snow removal contractor. The exclusivity of the Workersâ€™ Compensation Law

precluded a lawsuit by the plaintiff against her employer. The Court of Appeals held that a snow removal contractorâ€™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 ownerâ€™s duty as a land owner to maintain

the premises safely due to the limited nature of the contract. As such, the plaintiffâ€™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.


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## Mick (May 19, 2001)

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 contractorâ€™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 ownerâ€™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.


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## classicman (Dec 3, 2003)

*Printing it out...*

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


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## ih82plow (Dec 23, 2003)

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.


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## computerguy (Dec 4, 2003)

*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._


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## GripTruk (Dec 1, 2003)

> _Originally posted by Mick _
> *And the devil is in the details (and interpretation):
> 1. This applies only to New York
> 
> ...


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


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## Boast Enterpris (Oct 26, 2003)

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


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## The Boss (Oct 22, 2003)

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


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## Ground Master (Feb 11, 2002)

John Allins take on this would be interesting


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## John Allin (Sep 18, 2000)

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.


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## CMerLand (May 2, 2000)

"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.


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## computerguy (Dec 4, 2003)

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


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## rainair (Nov 11, 2003)

*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.


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## rainair (Nov 11, 2003)

*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.


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## GripTruk (Dec 1, 2003)

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


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