Using Proper Language
Winter is the time for many landscapers and contractors to begin snowplow operations. The language in the snowplow contract is a key factor in deciding who is responsible for a claim, such as a slip and fall loss. Many times, the contract determines who will be responsible for the loss is it the snowplow contractor or the property owner?
As with any contract, it is a good idea to consult a lawyer in your state for a legal review before finalizing and signing the agreement. However, it may be useful to understand some snowplow contract concepts before meeting with a prospective client.
Narrow, specific language is good – overly-broad language can be bad.
- “Snowplow Operations” or “Sanding and Salting Operations” are good because they solely describe what you are doing.
- Phrases such as “Snow Removal” or “De-Icing” should be avoided because they broadly describe an end result that may be impossible to meet.
Define your obligations by identifying when and where plowing, sanding or salting operations are to take place, such as:
- “Contractor will only plow the premises upon an accumulation of 2 inches of fresh snowfall.”
- “Contractor will only apply sand, salt or other melting agent to the premises upon specific request by the Owner. A separate charge for this service will apply.”
- “Premises subject to this Contract are defined as: driving lanes of rear parking lot only (or as shown on the attached diagram).”
- “Premises include driving surfaces and specifically exclude parking spaces and pedestrian walkways.”
(Tip: Create diagrams of the property to capture exactly where your operations are to take place on the property and have the owner initial and date the diagram when the contract is signed. You may also utilize aerial photos of the premises that can be downloaded free at Google Earth, Zillow.com, or Bing.com).
Define the property owner’s obligations under the contract, such as:
- “Owner maintains the responsibility for monitoring and inspecting premises.”
- “Contractor is not responsible for the melting and/or re-freezing of snow, ice or rain after application of salt or melting agent(s) as directed by the owner.”
- “Services of Contractor are deemed to be satisfactory unless Owner notifies contractor of a problem within24 hours of the services being performed.”
- “Contractor not responsible for injuries or losses that occur after the Contractor leaves the premises.”
- Avoid wording that obligates you to an almost impossible task, such as, “contractor agrees to perform continuous monitoring of premises.”
If the property owner insists on an indemnity clause in the contract, it should not indemnify the owner for anything more than your own negligence. Avoid accepting responsibility in the contract for the property owner’s negligence (such as a faulty drain pipe that leads to a reoccurring ice condition). Look for language similar to this:
- “Contractor agrees to indemnify and hold harmless the Owner from any claims, suits, or demands of damage or loss arising out of the sole negligence of the Contractor.”
- “Contractor agrees to indemnify and save harmless the Owner from any and all liability arising as a result of the Contractor’s own negligence.”
Beware of and avoid language such as:
- “Contractor agrees to indemnify, defend and hold harmless Owner from and against any and all claims and liabilities incurred by Owner based upon, arising out of, or in any way related to the services contemplated by this contract.”
- “Contractor hereby agrees to indemnify and hold harmless Owner from and against any and all liability, claims, suits, or demands of damage or loss arising out of either direct or indirect activity of the Contractor.”
If you are the one drafting the agreement, consider adding reverse indemnification language:
- “The Owner agrees to defend and hold harmless the Contractor from and against any and all damage and/or liability arising out of any incident that occurs either before the Contractor performs his duties under the Contract or after the Contractor has left the premises.”
- “Owner agrees to indemnify and save harmless the Contractor from any and all liability arising as a result of the Owner’s own negligence.”
- “Owner will add the Contractor as an Additional Insured on his/her liability policy.”