Slip & Fall & You

SLIP & FALL & YOU by John Allin. December, 2009. Snow Magazine. Over the years, I've worked with attorneys on slip-and-fall suits against property managers and snow contractors. Generally I work on behalf of the plaintiff in evaluating whether the property managers and contractors acted appropriately in their actions as part of a contract to plow snow and manage ice on commercial or industrial properties. Most of the time the snow contractor is contractually obligated to defend the property manager and the owner of the property in these cases. Unfortunately, the vast majority of the time it is rather easy to show a snow contractor has not done what was reasonable and prudent in light of their contractual obligations to the property owner or manager. It is rare these lawsuits go to trial. Most of the time a settlement is negotiated between the parties, to the benefit of the plaintiff. Yes, sometimes the insurance companies pay a settlement considering it a "nuisance payout." This means it is much cheaper to settle the claim than incur the expense of taking a case to trial. While this is aggravating to many, it is the economic reality of our world. Once the slip-and-fall claim becomes a lawsuit, the snow contractor is either named in the suit or is enjoined by the property manager or owner as a third party to the suit. Questions (or interrogatories) are provided in written form to the parties involved for answering. After interrogatories are exchanged, the parties ask for specific documents. This process is known as "discovery," which can last several months as the parties look to gain as much knowledge as possible about events, documentation, contract language and other items for their case. After discovery is completed, depositions are taken. Individuals who may have knowledge or information about the incident, or what the contractors /managers/owners might know or have done as part of their work or responsibilities towards the parties involved are questioned under oath. Depositions are lawful testimony and most everything said in a deposition can be brought before a jury if the case goes to trial. Lawyers can ask many things in a deposition that might not be appropriate in court, but the deponent is still expected to truthfully answer all questions asked. Settlement discussions usually follow depositions, but occasionally can occur after discovery is completed. Both sides will argue their respective points in an effort to achieve a settlement without the cost of going to trial. This begs the question -what can I do as a responsible, professional snow contractor to protect myself from slip-and-fall claims of this nature? Unfortunately, in today's world anyone can sue anyone for just about anything. All we can do is limit our exposure if we are named in a lawsuit related to our work on any given site. Documentation is a key element in protecting yourself. Assuming you are performing to the language of the contract, you need to document everything you do on all of your sites. Especially important is what you do to document deicing activities. Time on and off the site, the amount of product distributed and when you checked the site (or performed "ice watch" activities) are a few of the items that need recorded. Sidewalk work on any site (if part of your contract responsibilities) should also result in detailed activity reports. Savvy investigations during the discovery process will request such documentation to determine if your activities on the site were appropriate and sensible. Often, the first discovery request will cover the date of the incident. Subsequent discovery requests will ask for your records a week prior and a week after the date of the incident. Why? The plaintiff’s legal team is seeking to determine if records are consistent and not manufactured after the fact for the incident date. This is important for determining credibility of the contractor's record-keeping system. Was the material applied appropriate for the conditions at the time? This can be determined from the records. Are your people properly trained? This, too, can be ascertained from company records. Did you use the appropriate amount of material for the conditions at the site? Check the records. Was the equipment properly calibrated for the material being distributed? Again, check the records. If the customer is an "on-call" deicing customer, do you keep track of when calls come in for service? What they are looking for are exact times. Good contractors keep track of every single call that comes into their office. Often, you will get a call to deice a parking lot 15 minutes after the slip-and-fall occurs. With no consistent records, you will have difficulty proving you were not involved. Records. Records. Records. You cannot have enough. And, surprisingly, it doesn't take that much extra time to keep thorough records. Ask the contractors who do keep copious records. They will tell you it's worth it in the long run. Along with records, depositions are utilized to determine what happened from the viewpoint of the parties involved. Depositions are not designed to "trip you up" or catch you being untruthful. However, often deponents try to skirt the truth in an effort to get themselves off the hook. Big mistake. Not being truthful in a deposition creates some huge issues for all concerned. However, more often than skirting the truth, deponents will "guess" at answers instead of simply stating "I don't know." Deponents should answer each question truthfully and to the best of their knowledge. Don't guess and don't assume. Likewise, only answer the question on the table. Contractors can get themselves into trouble by "explaining" to get the lawyers to "understand" your position. Don't do that. Lawyers will ask questions to find out what they want to know. They can ask follow-up questions if necessary. If the plaintiff’s lawyer doesn't bring out the points you want him to get, then your lawyer will do so. And, if your lawyer doesn't get it out then, he will do so at trial. Trust your lawyer (or the insurance company's lawyer). You know the snow business. They know the legal system. A very good snow contractor keeps their records for seven to 10 years. So what should you do when you are notified you are involved in a lawsuit? The very first move is to notify the insurance company. Normally, this is done through your agent. Forward the paperwork to them. Keep a copy for yourself and start a file. Have someone gather up copies of everything pertaining to that customer for the winter the incident happened. Eventually, you will be asked for it. If the plaintiff’s attorney does not ask for it, you may find the lawyer for the insurance company may be able to utilize the information on your behalf. When notifying the insurance company of the suit, include a note stating you want to chat with the adjuster assigned to your case. Telling the adjuster your side of the story at the outset may prove to be beneficial. The adjuster can be a great advocate for you with the insurance carrier, especially if you have properly documented your activities for the time of the incident. Once a lawyer is assigned to your case by the insurance carrier you need to be forthright and honest with him about everything surrounding your business and the date of the incident. Participate and assist with your own defense. It can help a lot since the lawyer needs to understand what you do and how you do it. Never assume the lawyer knows about the snow removal industry. My experience is they do not. However, they want to learn and it is up to you to assist in their education. It will make it much easier to defend you. It is not up to you to determine if the lawyer takes your case to trial or attempts to settle it in a manner favorable to the insurance company. But, if you can adequately document your activities, can prove you were not negligent, and educate your lawyer about your business, then you have a much better chance to lower the payout to a size whereby you are not considered a liability to your insurance carrier.