Managing Safety and Liability vs. Managing A Budget

snow removal for communities

Signed into law on September 8th, 2016, The Snow Removal Service Limited Liability Act changed the liability relationship between Community Associations and their snow services contractor.
The act states, “Provides that any provision in a snow plow and de-icing services contract that purports to indemnify or hold harmless a promisee (client) from or against liability for loss or damage resulting from the negligence or omissions of the promisee (client) is against public policy of this state and is void and unenforceable.”

What does this mean? Simply put, the client cannot require a contractor to contractually indemnify client against client negligence/liability. Otherwise stated, the client will be held liable for “slip and falls,” car crashes, etc. if the court deems that the client failed to act “reasonably” within their implicit duties as property designate, manager, and/or association decision maker.
The contractor will remain liable for poor workmanship, service failures, and omissions based upon contractual obligations.

An association, business, or organization may be liable for “slip and falls,” car crashes, etc., if the court deems that the client failed to act “appropriately” in managing slippery or hazardous conditions.

Examples:

  1. Client does not authorize de-icing services to combat freezing rain/ice storms, and/or does not do so in a timely manner
  2. Client chooses not to authorize de-icing services after a plowing event that is concurrent to a wet, heavy, or slushy snow when temperatures following the plowing event drop and all remaining precipitation will freeze to ice on all hard surfaces.
  3. An example of acting “reasonably” when not authorizing de-icing services may be when temperatures warm above freezing after following a snow plow event and all residual moisture will be in liquid form and/or evaporate.

Historically, the majority of Community Associations have managed their snow and ice budget primarily based upon cost. Conversely, commercial properties have budgeted their snow and ice budget to maximize safety and to minimize the punishing costs of litigation. Commercial properties generally utilize de-icing for most winter events which could be 30 to 60 times per year. De-icing that often may be a difficult challenge for a community association based upon the ability of association home owners to fund the additional cost.

Perhaps a solution to manage liability, safety, and cost for an association that does not have the resources to authorize de-icing for every winter event is to have their snow service contractor apply de-icing after plowing operations. For 2″ trigger contracts, that may be 4 – 8 times per season.

In addition to de-icing after plowing operations, an automatic de-icing authorization for freezing rain and/or drizzle events is a noteworthy idea. This would be one or two times during a normal year. Having an automatic authorization for this scenario would allow a contractor to proactively schedule and execute the service in a timely manner which would maximize the effectiveness of the de-icing – driving public safety, as well as, liability back to the contractor.

Kerry Bartell, Principle Attorney of Kovitz, Shifrin, and Nesbit likes this plan as an option for her clients. “It provides the most protection for the least amount of money”, states Bartell.
The cost of a slip and fall can be enormous. “Our insurance provider will set aside a minimum of $25,000 for some slip and fall claims” says Maureen Scheitz, SPHR & Vice President of Human Resources for Acres Group.

Bartell adds, “While it will take a while for the court to more clearly define the application of this act, it is safe to say that an association must take it very seriously, and consider its options carefully”.

Note: CAI will provide a seminar on the Snow Removal Service Limited Liability Act at the August 9th Community Association Manager education session at the Lindner Conference Center in Lombard. Visit cai-illinois.org for details.

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