toscottm
ArboristSite Member
Hi All,
In reviewing many of the posts, a common concern and misperception is often the level of responsibility owed to a customer (and the public) for errors and omissions related to hazard assessments whether part of the intended service or not.
There are varying opinions on this, however the more experienced guys certainly do seem to have a good grasp on this. For the rest, let's chat about the risk and solution.
First of all, we need to recognize and accept that as an 'expert' (your level of 'expert' will vary based on experience and credentials), you are in a better qualified position to notice potential hazards than your client who is likely a lay-person. If hazards are noticed (or if they should have been noticed by someone who is a similar 'expert') and you fail to advise the client, from the laws point of view, you are probably in trouble.
The law looks at two matters. One is if a duty of care was owed and the second if the standard of care was breached. The duty of care is is owed if there is a reasonable responsibility to share your expertise. The standard of care is considered breached if you have failed to do what a similarly qualified person when faced with similar circumstances would have done. It is very important to recognize that these two matters do not need to be proven in 'advance' of a lawsuit. These matters will be the purpose of a lawsuit. I bring this up only because so many arborists (people for that matter) seem to perceive that they can't be sued merely because they think the did nothing wrong. That is instead a matter for the courts to decide! You can be sued regardless, it is up to the 'judge & jury' to determine if you are to blame.
What are the solutions? Well, as mentioned above, don't try to convince yourself that you can't be sued because you can. Accept the risk as 'part of being in this business' and do what you can to minimize chances and also to be in a strong position if you are sued. Here are some tips:
1. Diligence (be thorough with inspections [and non-inspections] by reviewing carefully all that would usually be reviewed)
2. Document (keep good notes as a record of what was reviewed, what was observed and your detailings, descriptions and warnings to the customer)
3. Contract (include a waiver within which the customer agrees to 'hold harmless & indemnify' you for failure to heed your advice and warnings - but remember this doesn't prevent someone from suing, it just gives you evidence to present in a lawsuit)
4. Insurance (carry broad errors & omissions coverage - see my next post about this).
Looking forward to chatting with those wanting to share their ideas, opinions, etc., on this always highly contentious issue.
Best Wishes!
Scott
In reviewing many of the posts, a common concern and misperception is often the level of responsibility owed to a customer (and the public) for errors and omissions related to hazard assessments whether part of the intended service or not.
There are varying opinions on this, however the more experienced guys certainly do seem to have a good grasp on this. For the rest, let's chat about the risk and solution.
First of all, we need to recognize and accept that as an 'expert' (your level of 'expert' will vary based on experience and credentials), you are in a better qualified position to notice potential hazards than your client who is likely a lay-person. If hazards are noticed (or if they should have been noticed by someone who is a similar 'expert') and you fail to advise the client, from the laws point of view, you are probably in trouble.
The law looks at two matters. One is if a duty of care was owed and the second if the standard of care was breached. The duty of care is is owed if there is a reasonable responsibility to share your expertise. The standard of care is considered breached if you have failed to do what a similarly qualified person when faced with similar circumstances would have done. It is very important to recognize that these two matters do not need to be proven in 'advance' of a lawsuit. These matters will be the purpose of a lawsuit. I bring this up only because so many arborists (people for that matter) seem to perceive that they can't be sued merely because they think the did nothing wrong. That is instead a matter for the courts to decide! You can be sued regardless, it is up to the 'judge & jury' to determine if you are to blame.
What are the solutions? Well, as mentioned above, don't try to convince yourself that you can't be sued because you can. Accept the risk as 'part of being in this business' and do what you can to minimize chances and also to be in a strong position if you are sued. Here are some tips:
1. Diligence (be thorough with inspections [and non-inspections] by reviewing carefully all that would usually be reviewed)
2. Document (keep good notes as a record of what was reviewed, what was observed and your detailings, descriptions and warnings to the customer)
3. Contract (include a waiver within which the customer agrees to 'hold harmless & indemnify' you for failure to heed your advice and warnings - but remember this doesn't prevent someone from suing, it just gives you evidence to present in a lawsuit)
4. Insurance (carry broad errors & omissions coverage - see my next post about this).
Looking forward to chatting with those wanting to share their ideas, opinions, etc., on this always highly contentious issue.
Best Wishes!
Scott