Landscape and Maintenance Contractors, are you Creating a Trip and Fall Hazard (and Potential Lawsuit?)
By Rappoport Development Consulting Services LLC
Certified and Registered Consulting Arborist, Landscape, Horticulture & Land Development Expert
Certified and Registered Consulting Arborist, Landscape, Horticulture & Land Development Expert
As a landscape and certified tree arborist expert witness, I have been involved with several trip and fall construction negligence lawsuits. In many cases, the hazard was created inadvertently by a landscape or maintenance contractor. Often times, the homeowner association and property management company were unaware of the potential hazard. The article discusses landscape contracting and maintenance related trip and fall and other construction negligence cases and issues.
Landscape construction and maintenance contractors face numerous challenges in today’s business marketplace. Since the economic downturn, competition for landscape work has become even more difficult with companies reducing profit margins, cutting expenses and just trying to get by. Add to that unfair competition from unlicensed gardeners and “landscapers” with unknowledgeable practices and low ball pricing makes it increasingly difficult for reputable, licensed companies to provide quality installation and maintenance services at a reasonable cost.
Depending on the industry, landscape construction and maintenance standards and specifications vary dramatically. Public works, commercial, sub-division and other forms of large-scale landscape projects typically utilize a landscape architect for conceptual design, working drawings and construction plans. The landscape plans not only illustrate plant and tree location and size, but also provide notes, details and specifications concerning construction technique. Contract documents are usually robust and include a full set of landscape and irrigation plans, details, specifications, sometimes soil reports, soil tests and related construction drawings that may include grading, drainage, underground utilities and other construction drawings.
This level of commercial landscape is usually the most inspected and regulated form of landscape construction work. The contractor bids the work according to the plans and specifications provided by a third party professional (the landscape architect). If awarded the contract, the contractor must install the work consistent with the landscape plans and specifications. Government, commercial and large scale landscape projects often refer to standards established by the Public Works Green Book, or local, County or State landscape standards and specifications.
Government, public works, sub-division and commercial landscape projects are designed and inspected by third party professionals to help insure the landscape contractor has completed the project in substantial conformance to the contract documents. One of the primary drivers for this level of professional design and scrutiny is to ensure the product will grow and flourish while at the same time providing for public safety.
Not all landscape projects are for government, public works, commercial and sub-division construction. Residential and other commercial landscape projects often times do not utilize a landscape architect or landscape design professional. When a project does not have a set of landscape plans, drawings, details, and specifications, bidding, construction, installation and maintenance can become problematic.
As mentioned earlier, landscape plans, details and specifications are the roadmap for contractors to follow when bidding and constructing a project. The contractor is directed and informed how, when and where to install the various project elements. Therefore when an Owner requests a landscape proposal without providing plans, the contractor is free to bid the work however they see fit. This also places the contractor in the role of a landscape design professional; a role the contractor is not trained or licensed for. This situation may also create a conflict of interest and removes inspection safeguards by a third party. Worse still is when an Owner requests a gardener or handyman to bid landscape work without any plans or contract documents.
The landscape, irrigation, arboriculture and nursery industries continue to grow and innovate, in response, local government agencies, industry associations, landscape architects and certified arborists have developed numerous landscape, irrigation, construction installation and maintenance specifications and standards. The purpose behind developing and implementing landscape standards is to continually work at improving the level of landscape consistency and professionalism while at the same time producing a vigorous, living product that does not pose a safety hazard or endanger public safety.
Value Engineering Your Way to a Lawsuit?
Whether a project comes with a set of plans or not, the Owner may be looking for a way to reduce costs. This might lead the Owner to request “value engineering” from the landscape contractor. Value engineering is the process whereby certain items bid in a project may be reduced in size, quantity, manufacturer, or other method to reduce the cost of the installed item, while still delivering the minimum required performance, thus providing a certain “value” to the Owner. Unfortunately, unscrupulous contractors can manipulate value engineering as a means to lower their proposal to obtain the job, then installing products far below the original specification and not delivering any “value” but instead a poor quality product.
Using a contractor to provide value-engineering suggestions can be a valuable, cost saving tool, however it should not be used during the bid process or in selecting a contractor. To avoid conflict of interest, value-engineering suggestions by a contractor should be closely reviewed by the Owner and third party landscape professionals for functionality and safety considerations. Sometimes, very simple changes can have drastic safety implications. Changing sprinkler head type, reducing specifications for root barrier, even thickness of a layer of bark mulch can have serious legal consequences.
Cheap Installation Versus Expensive Lawsuit
As a landscape expert witness, I have been involved in a number of trip and fall lawsuits. A common trip and fall hazard relates to sprinkler heads, particularly the use of a shrub head on a riser versus using a pop-up sprinkler head. Industry standards and regional specifications typically require pop-up type sprinkler heads adjacent to paved surfaces including sidewalks, curbs, pathways, driveways or other paved or sometimes unpaved surfaces, wherever pedestrian use is expected. The reason is simple, to keep the sprinkler head retracted below the turf grade when not in operation so pedestrians will not trip over a sprinkler head when walking adjacent to turf areas.
A shrub head on a riser is just as the name implies. It is usually a spray or rotor type shrub head that sits atop a rigid schedule 40 or schedule 80 PVC plastic riser. The riser or nipple, may be twelve to eighteen inches above adjacent grade and is often times staked in place using metal stakes or even steel rebar. This type of assembly is fixed in place and does not retract.
There is perfect reason and justification for using spray head on risers. They are cheaper than pop-up head assemblies; perform well and safe to use when not adjacent to pedestrian or vehicular use. They work well at the back of planters and on slopes. Pop-up heads are the industry standard for using in turf and planter areas adjacent to pedestrian and vehicular traffic areas. Pop-up heads are manufactured in a range of sizes to accommodate the intended use. Four inch pop-up heads are the standard for turf areas while twelve or eighteen inch pop-up heads are used in planters, shrub beds and slopes that are adjacent to streets and sidewalks. Due to their more complex construction and increased installation time, pop-up heads cost more to install than a shrub head on a riser.
For projects with plans and specifications, the contractor does not get to decide what type of sprinkler head to install. For projects that are cost driven without plans or specifications, the Owner may direct or request the contractor to reduce the cost by substituting or “value engineering” their proposal. In this instance, an uninformed, inexperienced contractor may suggest using shrub head on riser rather than pop-up heads to save money. Worse still is when an uninformed Owner requests a proposal from a gardener or handyman without any idea of what this unlicensed individual is going to install.
This is a short-sided and potentially risky decision to undertake as minor cost savings by changing to a cheaper sprinkler head installations could result in a trip and fall lawsuit that could cost far more than any savings derived by using a cheap sprinkler head installation. I worked for a plaintiff attorney whose client tripped over a shrub head on a riser that was placed in a small planter adjacent to the service walk to the front door of the house. The homeowner tripped over the sprinkler, fell and crashed into the front door, breaking a spinal vertebrae resulting in paralysis. After reviewing the pictures, documents and inspecting the local and state irrigation specifications, it became clear the contractor violated state irrigations standards by not installing pop-up heads adjacent to concrete sidewalks as specified by the agency. The case settled in favor of the plaintiff for over seven figures. Probably not what the Owner expected when he allowed the contractor to install improper sprinkler heads to save some money.
Installation vs. Maintenance Contractor (or who blew it?)
Depending on the nature of the accident, landscape construction negligence and trip and fall cases may involve the construction installation contractor and or the landscape maintenance contractor. Determining fault may require examination of the original contract documents, plans, specifications and Inspection records. Experience maintenance contractors taking over a new project or an older project from another contractor understand the importance of documenting the performance and safety deficiencies during the initial inspection. They can then inform the property management company or homeowner association of these deficiencies at the earliest opportunity. This informed, pro-active form of maintenance forms the basis of a legal defense in the event the documented defect later becomes the basis for a lawsuit.
Another case example: There were shrub heads on fixed risers at the bottom of the slope. Most of the risers were a couple of inches away from the sidewalk, but a couple risers had been tilted back to adjust the angle of the spray head upward due to buildup of slope vegetation over the years. Rather than excavate and properly reset the heads at a correct angle, someone just tilted the heads back, added additional riser height to clear the shrubs. In so doing, a few of the sprinkler heads inadvertently crossed the perpendicular plane of the inside of the adjacent sidewalk. A female jogger and friend are conversing as they jogged past the slope. Suddenly, one of the joggers caught her clothing on a sprinkler head, causing her to trip, fall and break her wrist. Who made the mistake, the original contractor installing shrub head on riser next to a sidewalk or the maintenance contractor who modified the installation resulting in the sprinkler head encroaching the sidewalk public right of way?
Install it Right and Avoid a Fight
A family is at a Sunday outdoor concert, they decide to get some ice cream, but the sidewalk is too crowded, so they follow others and cut across a planter area. Unfortunately, the mother tripped over an irrigation remote control valve box, fell and broke her ankle and suffered other injuries. She experienced months of painful rehabilitation and loss of work, eventually suing the HOA and the maintenance contractor for construction negligence. Upon review of the pictures and documents, the remote control valve box was three inches out of grade. Additionally, specifications provided the top of box no more than 11/2” to 2” higher than surrounding grade and there be a two-inch layer of bark mulch in the planter area. There was no bark mulch and the valve box was too high. Did the installation contractor install the valve box incorrectly? Was the maintenance contractor at fault for not supplementing the required layer of bark mulch? The maintenance contractor and Owner failed to adhere to the contract specifications resulting in a foreseeable accident. Had the contractor installed the valve box properly and or refreshed the layer of bark mulch, the accident and lawsuit could have been avoided.
Protect Your Work in Place
Landscape contractors are usually one of the last contractors or trades used on a construction project. Occasionally. a landscape contractor is scheduled to install work prior to other contractors working on the project. When this occurs, an experienced landscape contractor understands the importance of documenting their completed work, having it tested and inspected by the Owner, architect of General Contractor. Once the work is completed, other trades and the General Contractor and Owner have the responsibility to protect your work in place. If others damage your work, the Owner or General Contractor is responsible for notifying you of the damaged work and providing you the opportunity to repair and retest the work.
The Owner or General Contractor who fails to notify the Landscape Contractor of their work damaged by others runs the risk of construction negligence. I worked for a defendant attorney, his landscape contractor client worked for a General Contractor on a public works project. The General Contactor (GC) requested the Landscape Contractor to install a temporary two-inch on grade mainline during construction. There were no plans or specifications, the superintendent for the GC directed landscape contractor where and how to install, thereby providing his own specifications. After completion, the work was inspected and approved by the GC and Landscape Contractor. After completing the work, the Landscape Contractor was no longer needed or contacted for over four months.
Three months later, on a labor-day weekend, the on-grade mainline exploded, flooding the project and all of the concrete footing and caisson trenches, requiring over $150,000 in repair costs. The GC sued the landscape contractor for construction negligence. However, during discovery it became apparent the on-grade mainline had been damage on three other occasions by other contractors and been modified by city forces at the request of the General Contractor. The GC never notified the landscape contractor their mainline had been damaged and repaired by others on three occasions, with the final repair causing the mainline to fail. The defendant prevailed in mediation.
Where to Start?
In my days of active landscape contracting, I was so busy running the daily business operations; safety and legal implications were rarely considered. In today’s litigious society, can you afford to make a mistake resulting in a construction negligence lawsuit? Viewing your work from an objective third party perspective can be extremely important and valuable. It is easy to miss mistakes, defects and potential safety hazards during construction and even post construction during inspections. Typically, inspections focus on performance, plant establishment, irrigation coverage, weeds and other landscape related items. Conformance to plan and contract documents may or may not be addressed and rarely do inspections focus on future safety issues and hazards.
Taking pro-active measures to ensure contract conformance and compliance should be viewed as a high priority. Make use of the inspection period to document everything about the project and what was installed. Note the condition and existence of surrounding properties and improvements. Take pictures of everything, your work, the overall site and adjacent conditions that might impact your project. If possible, use a third party consultant to inspect your project from a risk management perspective. Check for surface elevation discrepancies, root encroachment, sprinkler heads, valve boxes and other landscape appurtenances that could cause or be a trip and fall hazard. Inspect for overhead limbs and branches and obstructions that might cause injury or property damage. Observe sight lines to ensure the landscape plant material, meters, and controller enclosure do not block vehicular sight lines at traffic intersections or radial curves.
Lastly, create a mindset for yourself and company toward creating functional, beautiful landscapes that do not create a safety risk or potential hazard to the client, public or property. Create an inspection and documentation procedure aimed at minimizing risk and providing superior customer service. Ultimately, this will benefit you, your company and your clients.
ABOUT THE AUTHOR: Jeremy Rappoport, President of Rappoport Development Consulting Services LLC
Jeremy Rappoport is President of Rappoport Development Consulting Services LLC, providing landscape, certified tree arborist, horticulture, site construction management and land development consulting and expert witness services.
Mr. Rappoport is a graduate from California State Polytechnic University, Pomona, where he earned a Bachelor of Science degree in Ornamental Horticulture, emphasis in landscape architecture and landscape contracting. Mr. Rappoport is a professional horticulturist, a California state C-27 landscape contractor, a certified arborist and certified tree risk assessor by the Pacific Northwest Chapter of the International Society of Arboriculture (ISA).
Copyright Rappoport Development Consulting Services LLC
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.For specific technical or legal advice on the information provided and related topics, please contact the author.