Legal Help: Where to turn

In San Francisco, a carpet cleaner with a felony record murders a young pediatrician. In Florida, a group of teachers sue because they are convinced poor cleaning practices are making them ill. In Ohio, a woman walking through a department store spies a wet-floor sign, then another one, but sues the cleaning contractor anyway when she slips and injures herself.

Now what? While some of these cases may be extreme, building service contractors face liability questions every day.

“Cleaning contractors can find themselves involved in all kinds of lawsuits,” says Barbara Nimis, a Minnesota-based cleaning consultant and attorney. “The most common are wrongful termination, workers compensation claims, sexual harassment, slip and fall, work environment – basically, if you are a contractor, you are subject to every kind of lawsuit that can happen in a work [situation].”

Nimis isn’t trying to frighten contractors; she’s just being realistic. Every BSC needs to know how to handle a potential lawsuit and how to find an expert witness — even if the possibility of someone filing a suit against the company seems remote.

Proper preparation is essential, especially in our “litigation-mad society,” adds Allen G. Siegel, an attorney who represents the Building Service Contractors Association International. And small businesses need to be equally prepared, perhaps more so.

“Building service contractors, in their numbers, tend to be small businessmen, but they need to find the facilities and resources to locate an attorney and be prepared, “ says Siegel. “Maybe these small businesses don’t have employees but that doesn’t exempt them from the problems.”

It should be fairly easy to locate an attorney who is familiar with the BSC industry, says Nimis, and she is quick to add that it’s important that the attorney know the business.

“Lots of firms have an attorney on a retainer fee and they pay a nominal amount for that, but that means if there is a problem at 11 p.m. at night the BSC can call and get an answer,” says Nimis. “Don’t make the first time you talk to an attorney the first time you need one.”

Seeking expert help
Finding a good attorney may be a priority, but it’s not the only legal chore BSCs must consider. If a lawsuit against a BSC does head to the courtroom it’s more than likely that contractors will need expert witnesses.

Ian Greig, CEO of Daniels Associates, an Arizona-based consulting firm, jokes that you know you have a good expert witness after you win the case. But he’s also quick to emphasize the importance of a witness’ expertise level.

“You need to find someone who has a basic understanding of the business, the process and the products,” says Greig. “That does limit you because, for example, the people who make finishes will tend to be experts for their product and they will try to exclude the blame for their products. You really need to look at somebody who knows how cleaning is performed and not the chemical on the floor and the machine to buff it.”

Most importantly, Greig encourages BSCs to gather as much information as possible, as soon as there is a potential problem. BSCs can take charge by videotaping accident scenes, looking for skid marks, getting a copy of the accident report and doing as much homework as possible before a potential case even heads to court.

Being prepared also might mean being your own investigator or having someone you can call at any time who knows how to find the truth, says Jeff Bishop, who runs Clean Care Seminars and has authored numerous technical cleaning books. Bishop, who often is called to be an expert witness in BSC cases, says a true expert will have a mastery of the details — that means someone who can do the mundane tasks but who also can ask the right questions to determine the situation’s impact on the health and safety of building occupants or employees.

“It’s not enough to have academic experience,” he says. “You need an expert who has been there and who knows about high dust and low dust and carpet bagging.” University degrees don’t mean much, he says, if an expert has never held a mop or broom.

One example of Bishop’s own expert BSC sleuthing landed him in Florida, where teachers and students sued a school district because they felt their health was compromised from being in an improperly maintained building.

Bishop knew right away who would have the answers to his questions; he immediately went to see the maintenance crews who told him that with budget cuts they could not even afford to buy vacuum cleaner bags.

“I asked right away if anyone had talked to the custodial crews and they laughed at me,” he says. “What was happening was that all the collected dust on the floors was being thrown back into the air through the vacuum cleaner, and particles were airborne for 8 to 16 hours. The kids coming to school on Monday all would be sick by Wednesday.”

Nimis says trade publications, other attorneys and previous lawsuits against competitors also are good spots to find expert witnesses. Besides making certain that an expert witness is just that – an expert – Nimis advises that BSCs not to become involved in a lawsuit that isn’t their fault.

Contractors tend to be caring people who love the service industry, but Nimis cautions them to make certain the lawsuit actually belongs to them before they claim responsibility. That also includes employees who may not be able to remember if they left a cord plugged in or the wax on the floor.

“The employees shouldn’t say anything,” she says. “Sometimes, in their concern for the person who has been injured, the contractors tend to want to make everything better so they take on a lawsuit that isn’t theirs.” If someone slips and falls on a floor because the building owners are unwilling to install proper walk-off mats, even after a BSC has requested them, the customer is at fault, not the contractor, and there is nothing the BSC can or should do to become involved.

“Most slip-and-falls happen hours after a store is open, and the reason is that it takes time for the piece of orange or grape or some frosting to sit on the floor,” Greig adds. “The chances of it being the contractor’s fault are slim to none.”

That’s why Nimis suggests that contractors put their concerns in writing so they will hold up in court. Such actions also are important in terms of educating clients about safety procedures, she adds. After all, customer hire BSCs because they see them as the cleaning experts, and information contractors can pass along might prevent lawsuits in the first place.

“If you know the floor can be slippery when you wax it, write a letter to the management recommending that they put down mats,” she says. “Don’t say something like ‘Someone could slip and fall,’ but just mention that it would be a good idea to have mats on the floor.”

It always is going to be easy for someone to point the blame at BSC’s, but wise contractors will be prepared, know or already have an expert attorney, and be willing to go to the mat themselves if they have been wrongly accused.

Kris Radish is a business writer based in Oconomowoc, Wis.