They sound like stories from Ripley’s Believe It or Not: a bicycle rider sues for taking a tumble while trying to jump his bike over a snow pile. A hotel patron sues for stumbling in the parking lot while he was drunk. However both stories are true and in both cases, the claimants won their lawsuits.

“There was a time 15 years ago when most personal injury cases would have been thrown out of court,” said Mark Yakabuski, Ontario vice-president for the Insurance Bureau of Canada, in a CTV television broadcast last year. “Today, we seem to be more tolerant of people making these sorts of claims without perhaps understanding that the buck has to stop somewhere and has to be paid, ultimately, by everyone who’s carrying insurance, especially those in the area of snow removal.”

According to the Toronto brokerage firm Sinclair Cockburn Financial Group, insurance premiums for snow and ice contractors have gone up by 25 to 50 per cent over the last few years. “The most prevalent type of insurance claim we see is slip and fall lawsuits that hold contractors negligent,” says Darren Rodrigues, Sinclair Cockburn’s national programs manager. “It’s not just the frequency, but also the severity of claims that’s been increasing,” he adds. “The average payout on third party injury claims against snow removal companies was about $34,000 in the late 1990s. While that number has dropped somewhat due to improved claims adjusting, this area still represents a major concern.”

A well-written contract will avoid the pitfalls of the past, whereby unclear wording and such legal terms as “hold harmless” left contractors assuming the property owner’s responsibilities for injuries on the premises, Rodrigues says. But even the most carefully worded contract doesn’t free contractors of the need for diligence.

Understand the property’s risks
In the race to line up winter work, the temptation to take on a high-risk account might be strong. However, unless you are geared to serve these customers (and their fees make it worth your while), their business can result in higher insurance premiums as well as greater demands on your staff, equipment and materials. Some inherently risky properties include:

•     Health care facilities (because of patients’ special mobility needs) and schools (because of children running and playing). You’ll have to accommodate higher ice control and snow clearing expectations at these types of properties, warns Alan White, owner of Turf Systems Inc., Burlington, Ont., “When servicing schools, we used to make snow piles for the kids to play on, but now, because of parents’ concerns that kids will get hurt we’re not allowed to pile snow higher than six feet,” White says. “We also get calls to come quickly and clear away the snow forts that kids dig because of the huge fear that a child will get trapped in one.”

•     Restaurants open 24 hours a day, seven days a week. “These are properties from hell,” sighs Edward Hewis, owner of Ground Control Contracting, Oshawa, Ont. “You have a two-hour wait in the middle of the night to clean them. There are always cars in their lot. Then, because snow doesn’t come on a schedule, if it starts snowing at 6 a.m. you can’t plow because of all the people trying to get that first java in the morning!”

Sometimes the inherent risk is in adjacent properties, warns a May 2002 article on www.snowbusinessonline.com. It mentions a contractor who accepted a snow and ice-clearing job from a retailer located next door to a dance club. The club’s patrons, who were sometimes drunk and wearing high heels, frequently used the retailer’s lot. Within two months of taking the account, the contractor had two slip and fall claims.

Keep meticulous records
Once you agree to assume responsibility for snow and ice maintenance of a property, courts and insurers will demand proof of your due diligence if an injury occurs there. In other words, you will be required to show that you had a reasonable system for carrying out the work and that you followed it. Adds Rodrigues, “We can never underestimate the need to document, document, document! With incomplete records, the defense of a slip and fall claim can become very costly. Without documentation, a claim may not be defendable at all.”

Thorough record keeping begins with a site map, which should be included in the contract and available to equipment operators. It spells out the area of responsibility for the contractor and describes the conditions at a property. Site maps typically include: the exact property lines, potential obstacles (such as manhole covers and loading docks) and potential hazards (low-hanging eaves, trees, etc.). “If your plow tears up asphalt because of a pothole, that pre-existing damage should have been noted in the property site map,” Rodrigues’ employer advises on its website (www.sinclaircockburn.com). “Similarly, if a property owner recommends dumping or pushing snow onto an adjacent property, think twice. If it’s not detailed on the site map, don’t do it.”

Maintaining accurate and thorough winter service work logs is equally important, adds Rodrigues. “All staff must be educated about the importance of performing what seems to be the mundane task of documentation. Remember, it’s not enough to say you did the right thing, you have to be able to prove it!” Work logs (also called plow logs or activity reports) should be filled out during routine night patrols of customers’ properties, as well as during storm events and any follow-up visits to the properties. For example, at Clintar Groundskeeping Services, based in Markham, Ont., customers’ properties are “rechecked after snow clearing to make sure we’ve covered all the areas and then a second time to touch up sites where, say, we need to reapply an ice melting product,” explains Robert Wilton, Clintar’s president.

For every visit to a property, the work log should include:

•     Arrival and departure times
•     Weather and pavement conditions
•     The type of work done, as well as the type and amount of materials used
•     Potential hazards (e.g. drainage pro-blems) and obstacles, such as parked vehicles. “When parked cars or trucks are preventing us from clearing certain spots, we record this information and in some cases take license numbers,” says Wilton. “We will also notify the customer if we find it’s a recurring situation or an emergency situation.”

Let technology help
Clintar and other snow and ice management operations are increasingly using technology to improve their record keeping. “We use temperature guns to measure pavement temperatures,” says Wilton. “They’re inexpensive – about $120 each. So, if someone claims a slip and fall at 7 a.m. and we have a pavement reading taken at 5 a.m. that morning of plus five degrees Celsius, it’s pretty unlikely that anything was frozen. Our temperature guns were the smoking gun in a couple of fraudulent claims,” he grins.
The communication log from Clintar’s radio dispatch system also carries details about what occurred at customer’s properties. And, contractors who monitor such Internet weather sites as Environment Canada, AccuWeather or Intellicast often download information and attach it to their properties’ work logs. “But,” warns Edward Hewis, “These weather sites only tell you what’s happening in your town or city; they aren’t site specific. You still have to stick your head out the window to really know what’s going on,” he jokes.
Still, some contractors are looking forward to the day when technology offers a quicker way to record on-site information. Says Roy Hummel, operations manager at Jan Gelderman Landscaping in Waterdown, Ont.: “We’re developing a system geared to supervisors, whereby they will transmit information to our central computer via a hand-held computer (such as a palm pilot) instead of writing everything down.”
Insurers are in favour of anything that will help prevent slips and falls and defend against a claim. “The more information you can provide to your insurer the better your chances of avoiding payment on alleged slip and fall claims – and the better your chances of keeping insurance premiums stable and affordable,” Rodrigues says.

Susan Hirshorn is a frequently-published freelance writer for business, professional and consumer audiences. She can be reached at www.susanhirshorn.com