One of the most dangerous things that a snow contractor can do is overpromise. Terms that might sound good when pitching services to a potential customer can be catastrophic if a slip and fall or other accident occurs.
When drafting, negotiating and executing any contract, always remember that the contract is binding the contractor to perform certain services under certain conditions. Those services and conditions should always be reasonable and clearly stated.
The examples below demonstrate some classic examples of overpromises. Such language is not only unrealistic but also is guaranteed to create problems if a potential claim arises.
In many areas (particularly areas with harsh winters), this language obligates the contractor to do something that is totally unrealistic and likely impossible: keep snow and ice from accumulating. No matter how dedicated or competent, the contractor cannot satisfy this obligation for an entire winter.
Between precipitation events, melting snow refreezing, and snow being dropped by vehicles and pedestrians, a contractor cannot keep a property totally clear of snow and ice.
This overpromise is particularly problematic because it exposes the contractor to potential liability no matter the amount of snow or ice in a particular location. If a pedestrian slips on a 2-squareinch patch of ice, the contractor has breached the terms of its agreement by allowing that ice to form. If a vehicle slides into another vehicle because snow has been accumulating for 10 minutes, the contractor has breached the terms of its agreement by failing to prevent the accumulation.
This overpromise is nearly as problematic as agreeing to keep a property clear of snow and ice. Again, the contractor has agreed to something that is extremely difficult to accomplish. When a contract requires "monitoring," "inspecting" or anything similar, the contractor and the customer often have very different understandings of the contractor’s obligation.
The contractor may believe that driving around the property daily and multiple times per day after a precipitation event is sufficient; but if a slip and fall or other accident occurs, the contractor may learn that the customer expected far more. This disconnect can create a significant problem for the contractor as the customer (or the injured party) will almost certainly claim that the contractor could have done more to monitor the property.
This language may seem innocent enough, but it suffers from a similar problem to the language requiring monitoring: the contractor can always be expected to do something more. The dangerous phrase here is "best efforts."
A contractor may go to a particular customer’s property first after every storm, return to that property multiple times during the storm, and send someone to inspect the property three times per day, but those actions may not be enough if a contract requires "best efforts." This phrase can mean any number of things and should be avoided at all costs. Including it in a contract without a clear definition is an excellent way to face a claim that the contractor "should have done more."
Defining the scope of a contractor’s services using language like the examples referenced above puts a contractor in a no-win position. The contractor becomes obligated to do the impossible while simultaneously exposing itself to liability for nearly any accident. Being put into such a situation is not worth it, no matter who the potential customer might be.
Brendan D. O’Brien is an attorney with Primmer Piper Eggleston & Cramer PC, based in Manchester, NH. Contact him at bobrien@primmer.com.