Liability, I deal with this all the time, doing expert witness testimony, it can be a slippery slope indeed. In the case of " training" it needs to be set clear upon execution of contract. No real indemnification can be sought with out the understanding that in reality the law is won by those with the most money power and pull, it is a pay to play world and thats just the way it is.
So this being said you need to find ways to at minimum protect yourself and your assets. And the days of shell companies and putting things in the wifes name are long gone, it used to be that you could hide stuff in such a way that it would take so much time to find the assets that one party would win from the other party just not having the resources to do so. A great way of protecting yourself is to incorporate a company in Nevada or Wyoming, we have in both and has proved to be very air tight with very tight disclosure laws, and no income taxes.
When a lawsuit pertaining to "training" is entered, it almost always comes down to the the person that trainer trained, why, cause the trainer is usually giving opinion not fact. If the trainer is giving fact then it is usually outlined in a widely accepted standard, such as with food handling and food safety. The trainers responsiblity needs to be set clear from the first step, as opinion not fact!
There are clear definitions in the Code Of Federal Regulations, of which many fields are well defined and training courses can be built upon, we use it in our training course and has not ben challenged yet. As a trainer you need to set yourself up to meet a particular standard, if none exists then the indemnification process needs to start with a contract that clearly outlines your training course and that what you are offering is merely opinion not fact, unless you have the mountains of money to prove your methodology is indeed fact.
By you offering the 3m mask as part of the course then your are saying that this mask will protect you from a potentialy hazourdous condition, this is assuming that the person giving the mask has been trained properly in the use of the mask himself, and does such a training course in donning and doffing the mask even exist? You taking the liability that if the person is injured even while wearing the mask and does so with the mask that you gave them, then you are now entered into the line of causation, and being in this line is a bad place to be.
Even admiting that you know the potential liability of the run off sets you up for a big problem.
I have a separate policy for professional liability, it is a bonded type of insurance in that a broker takes an investment from either a company or a private person, often these folks are listed as the underwriters. So what they do is take the money put it in a fund that has my company as the loss payee. We pay a premium (intrest) to the fund manager and he takes a cut and the principal is held if no claim is made in the policy period. If a claim is made against me the broker has an insurance administrator over see the claim process, the administrator is a "neutral" party, however the administrator is paid by you, the policy holder, it is the administrators responsibility to over see the claim and defend you in a semi fiduciary fashion.
PS: When I train companies, I give 1 year all you want to call. A monthly charge:? mmmm I don't know.
The outline kind of reminds me of the Real J Peterman Tour
http://www.youtube.com/watch?v=K9WtjFhEGrM
Here is an article I wrote about kitchen cleaning, pick through it and see how it may adhear to you.
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Alot, and then get some more.Then take you house, vehicles, and anything else you own and put them in someone elses name.
All great questions, and all great answers, so I will only tell you our practical experience over the last few years. I would like to share some information with any one that cares to read on. I offer this information as an ignorant person with no knowledge of law or legal procedure.
First let me be clear about one underlying fact -- Cleaning a commercial kitchen floor is simple and a huge money maker.
Ongoing experience:
We conducted hundreds of kitchen cleanings since 2002 and 98% of them were WITH OUT a vac system. This is not to say that all the water just made its way to the drain, which would be way to easy. There are many reasons that the water just doesn't make it to the drain, but whatever the reason, you do need to accomplish it. SO how do you make water go up hill? Use more water. Generally with one guy on the gun and one or more guys with squeegees you can coral a pretty large amount of water to the drain(s), it is really just a matter of practice and taking in account the properties of the water itself, water likes to follow the path of least resistance, so like I said you will need to practice your water rodeo techniques, but using hoses and walls to your advantage is the best.
Since we have purchased a vac system life has become great. Enough said.
I often do not address the issue of wall sockets, but instead defend why that portion of the wall is still dirty, compared to its surroundings, I will explain that they paid for a pressure washing , not a full blown kitchen detailing, that would rise their price from the original $250.00 to way above $1000.00, this usually settles the client and they stop seeing the dirty wall but start seeing the cost savings.
Yes you are responsible for the merchandise, the same as you would be in any other obvious situation.
The interceptor? I do not know, I always assumed that every drain went to the interceptor, this is something I need to address in the future, I do not want to take the blame for years of them dumping crap down the drain, to the one time we use a chem., and it is traced.
We probably all remember that not long ago one particular high pressure equipment vendor visited us and told us all about liability and why we should all buy from a vendor or manufacturer because they held a particular point of view that they could not only do a better job but were well protected from liability, and if I remember correctly this person may have even gone as far as to say, if you buy from us we will absorb the liability issue for you. I really don’t remember the exact statement(s) but a heated argument ensued for a few weeks after this persons posting, ultimately ending in a self imposed removal from this site. I hope that after reading this , we can discuss this issue, not bicker.
Now onto the hard part of kitchen floor cleaning:
Why I write this portion is this, I have been involved on both sides of this argument on many levels, and have come to a conclusion, it is not the fact that pressure washing or steam cleaning a kitchen floor is a bad practice, but rather an unproven and misunderstood method. Although I know of no clear legal precedence on this matter, I do know of a few reasons that pressure washing a kitchen or any interior floor carries a high level liability. That is probably why so many institutional cleaning contractors have the word “TEC” in their name, it somehow offers the potential client a level of assurance that just doesn’t seem to come from a company that has the word or combination of words “pressure” “wash” “clean” or “dependable” to name a few in their names. This is not to say that any of these words carry any less meaning but I have heard many times of this “”””””complaint”””””.
As I write this I must note that I am seriously jealous of Steve Button’s company name Clean Fast USA, I would love to have that name, it is strong classy and well defined, as well he has done a great job on branding his company name into his presence, I am jealous.
We have all seen the etchings, scars and poor workmanship that rookie or newbie or fly by night contractors have left on concrete, but how many times have you heard of a law suit filed or a settlement offered from any insurance company to fix this damage. Rare? I think so, unheard of no. But why is this type of damage so often looked past on the outside but the second you walk in the door and damage ANYTHING it becomes a major problem? I do not know but believe that the perception of professionalism becomes expeditiously higher if the person is hired for any type of interior service, and the credibility of the contractor is often seen as flawless, and unquestionable.
In the past year or so we have started carpet cleaning, and the same clients that we serviced for years on the outside, has made a 180 degree point of view about our services, now they don’t look out the window and see our big trailers and shiny trucks, and never question our work, but they instead inspect our work and question our techniques and knowledge. As of yet we have not had to be recalled out to re do any of our work, but the face that it is even questioned, has shown me that there is a clear difference, between an interior service company and an exterior company. For many years I had been telling our clients why they should only use a company that specializes in exterior pressure washing. And that carpet cleaning companies do not have the equipment or knowledge to wash the exterior, little did I realize that I was talking to people that had a clear definition of what they wanted and expected for the inside, but that they deep down thought less of our company because we didn’t offer any interior services, such as carpet cleaning. So understanding the expectations of the client is as important of an issue as any.
The legal point:
I have never had a problem with grout or loose tiles, these issues are generally addressed by the owner/manager way ahead of time, and they are generally aware of the floors condition before the cleaning of the floor starts. Giving them a disclaimer or having them sign a release of liability, or to indemnify you ahead of time is a great way to set yourself up for them to use your document against you. Because what you are doing is not generally a considered cleaning method of just about any company, and is frowned upon by BOH and the fire marshals, for different reasons, that are arguably valid but given their respective views on the subject you will find that a majority of people in those positions are well versed on technical issues but not aware of the dawning of new and more practical ways to achieve a sanitary environment. I have given expert witness testimony and briefs to both the legal world, local BOH’s, fire safety engineers, fire marshals, environmental hygienists and the like. It is an issue of how do we achieve everyone’s goals, without either breaking the “law” violating codes, company policy or someone’s feelings.
As a result of our litigious environment just cleaning a kitchen floor can result in the downfall of even the biggest companies. Although it is more likely to affect the bottom of the chain then the top, meaning that you the cleaning company is almost at the bottom, and the insurance provider(s) being clearly the top, of the chain. You as a cleaning company have to understand that the client you are working for has chosen to use your services; you mentioned that you have been asked to perform this service (kitchen cleaning); however that does not release you from the line of causation in the result of a claim of liability. We all may believe that the line of causation is a straight and well defined path, but this is not the truth, the line can circle back many times and produce a legal “knot” that can show that an insurance company has no liability for a claim, even if that company has directly showed that the facts of the case are a direct request of their client, being the restaurant in this case. So the line continues to the professional liability portion of the restaurants policy, but this has been shown to be limited to choices made by the restaurant management or general staff, not to the direct request for a particular service rendered to the restaurant by you the cleaning company, what this means is that even though the management staff has approved you the cleaning company to use your methodology of cleaning it does not show that they were aware of any possible damage that may arise from the cleaning, EVEN IF you offer a liability statement, or disclaimer to them making them aware of the possibility that your cleaning service may cause damage. And even if it was signed, by a person of authority, it will be questioned on its merits, and probably be proven to be a sign that points to you the cleaning contractor as being aware of the potential cause of liability. It will be more like to show that the document cannot ever be brought into the case due to its nature. I am not sure but I believe that skydiving operators often face the same circumstances of liability. So once again the line falls further down, probably this time to you the business owner, so now that all of this has transpired before a question of liability was even given to you, you are now responsible to protect yourself and your company against the claim of liability, that by this time has been thought out and analyzed by several sets of eyes and brains from the insurance company and the restaurant, they by this time will act as a collective group, have a clear point of view, on what transpired to cause a claim of liability, and obviously by this time you should be aware that they will act collectively to diminish any trace of liability on their side. They will be ferocious in the tact that they will take against you, doing the best job that they can to prove that your pressure washing of the kitchen floor is a flawed methodology that is unproven and generally incorrect. On many different levels they will attempt to show that you the cleaning contractor not only should have but DOES know that the introduction of water into the kitchen is not an accepted method for cleaning the floors. You may say what?? How do you clean the floor? How do they clean the floor? Well we all know that they use water to clean and it is applied by either a mop, hose or spilled onto the floor, but why is this ok for them to do and not you? Hard to say, and I really do not have an answer but have heard it said in a court that “we have been doing this in all of our locations for many years” I suppose that this is respected by the legal community as a fact of matter not to be put in question, cause you just can’t argue with ignorance.
So now that you have been put in the line of fire,you need to protect yourself. How do you do that, go to your insurance company and tell them what has happened? Their first question will be what code is you’re SIC code, and you better make sure that it is the same one as you gave your agent when you initiated the policy. For only a matter of general information here is a couple of SIC codes are listed under cleaning, you can read them and make your own opinion SIC 7349, 1799.
As a cleaning company you are put in the direct line of fire for any failure that may arise from your services. Let’s say that you develop a new way of cleaning the kitchen floors, walls and what not, but does your education and or experience matter if or is it affected by:
A.) A fire breaks out in the affected cleaning area, whether that is in the kitchen bathroom or any place else in the facility, maybe even an area that you believe that was not affected by your cleaning process.
B.) A food poisoning outbreak is traced to the facility that you cleaned?
C.) Damage is perceived to have happened as a direct or indirect result of your new way of cleaning?
D.) Is the chain of causation in anyway linked to you or your employees?
E.) You have no indemnity protection?
F.) Will I be found negligent through my actions?
I assume that we all know how to pressure wash, and I assume that we all got into this business for different reasons, most of us starting small and growing into whatever size we are now or have been in the past, upsizing and downsizing with the flow. But most of us never believed that we could be put on the spot to prove our innocence. After all this goes in direct conflict to the foundation of our law, “innocent to proven guilty” well I am not a legal expert but I do know that in a liability situation those rules do not apply.
A lot of this comes back to the question of why fast food places print “CAUTION COFFEE IS HOT” on the cup. Or who do companies put warnings on plastic bags that state “this is not a toy” or “caution suffocation may result if you put this bag over your head”
I know that this may get back to an insurance savvy individual, and they may have a direct response to everything I have said here, and I do not put into question their ability to rebut my information, but if they do, it shows exactly what I have been saying all along in this post, that everyone has a different view of an issue, it really just depends what side you are on that particular moment. A lawyer plays two roles in any case, a defense and a “prosecution”. Lawyers, both accredited and both believe that they are on the winning side.
I have tried to be as in depth and as vague as I can in this post, to as they say protect the innocent.
