by Colleen Suo

According to Patrick Donovan, retired NY Port Authority police officer and Fatal Accident Investigator turned landscape contractor, you or your crew could be inadvertently breaking the law (or stretching it) on a regular basis when it comes to operating your snow removal or landscaping business. At the very least, your actions or nonchalant attitude and behavior could be a contributing factor to serious injury. In the worst case scenario, this disregard could be the cause of someone’s (perhaps your own) untimely demise.

During a packed house morning session at the recent 19th Annual Snow and Ice Symposium, Donovan shared insights from his many years as a Fatal Accident Investigator. He also explained how insurance and accident investigators think about or look at violations that result in an accident.
First, is your company properly insured? Are you correctly structured to suit your business model (sole proprietor, Inc., LLC, S or C corporation)? Different levels of personal liability are associated with the different business structures when it comes to cases of legal action.

Operators in attendance were encouraged to join associations for a number of reasons. Membership often offers the ability to acquire and update necessary certifications for your equipment and duties. Association membership and certifications, helps to create credibility in the event of a disaster.

Donovan questioned the appearance of contractors’ equipment. Is it neat and clean? Does equipment appear to be organized, with proper signage, etc.? How about employees – how do they look? Does your business have a company uniform? If so, make sure workers always have the appropriate OSHA garments for the job at hand.

Contractors need to be familiar with and keep up on the Federal Motor Carrier Safety Administration (FMCSA) regulations that pertain to their operation. First impressions are important. If a company appears to be a fly-by-night operation, owners most likely will be treated as such during an investigation. That could make it easier to find fault against you.

One of the most common oversights that result in accidents or violations is for the vehicle owner and driver to underestimate the cumulative weight of their equipment, which includes attachments and material. As an operator, you and your staff need to be acutely aware of not only what your vehicle weighs, but also what the manufacturer’s recommendation for safe operating weight and speed is, once attachments are in place. He cited an example where a contractor might be trying to save on the time it takes to return to the yard and get additional salt for a job – so he heaps another ton of material into the hopper because the next job is only five miles away. He believes that he can dispense it during one sweep of that parking lot.

If a driver has the unfortunate occurrence of an accident or moving violation and the vehicle’s CGW (combined gross weight) is over the recommended safe operating weight, your insurance company will not back you up and the investigator will use that against you in the case of a deposition. Is it worth the risk?

Another consideration is whether equipment attachments are being used in accordance with the manufacturers recommendations (position, clearance, how it is mounted, etc.). Anything outside of the parameters of these recommendations will hurt you in the event of an investigation.

Other infractions to consider include being aware of your vehicle placement in relation to intersections. Are you blocking any important road signs? If someone comes along and doesn’t see the Stop or Yield sign due to your equipment placement and is injured or killed because of it, there could be criminal or civil charges against you or your company depending on how you have structured the business. There is currently no federal standard for this distance so you need to be aware of the rules within your operating boundaries. Donovan recommends erring on the side of caution. If you have to park on the street, give yourself an additional 25-feet over the distance ordained by the municipality.

He reminded attendees to remember that if they have a fleet of vehicles and have a DOT number; that number covers the entire fleet. If a DOT number gets suspended due to suspicion of involvement – you are grounded. Nothing that has that DOT number on it is allowed to move off your lot. If a vehicle is impounded, it can be held indefinitely and can only be released by order of the judge presiding over the case.

Snow placement is something else to consider. His example told of how you’ve just cleared the local hardware store’s parking lot, and the kids are going to love you for the huge mountain of snow you just put in the corner of the lot. However, the mountain not only blocks part of the sidewalk leading to the crosswalk, it blocks the driver’s view for turning out of the parking lot.

If any slip and fall incidents occur because of snowmelt thaw and freeze conditions, or if the re-freeze causes a fender bender or worse because of your snow placement, you are liable.

While Donovan was on the subject of possible slip and fall injuries, he said he always uses caution tape or some sort of safety signage when working on sidewalks or other pedestrian areas.

He emphasized the importance of good record keeping as well. Weekly meetings covering or reviewing OSHA or state regulations need to be documented and signed off by your employees. Federal regulations always trump local and state regulations.

Logbooks for each vehicle need to be maintained if required. If you use a GPS service for your fleet, weekly reports pertaining to employee hours and vehicle maintenance should be retained – especially during a snow event.

The bottom line is an investigator is there to gather evidence in order to determine fault. Accidents do happen, and a fatal accident is a crime if someone is to blame. It will be easier to lay blame on you, the contractor, if you’re not aware of potential violations.