OCD Liability

Discussion in 'Lawn Mowing' started by Bluesteel, Aug 5, 2003.

  1. A while back, someone posted a thread about changing the pulley sizes on their spindles to increase blade speed. Technical issues aside, the general consensus was that if there was an accident, and the attorneys found out that someone modified their mower that way (beyond OSHA standards), it would result in even more liability.

    So, I was wondering if you’re using an Operator Controlled Discharge (OCD), would that expose you to more liability in the event of an accident? Like an accident such as throwing a rock and putting someone’s eye out, etc. Would an Insurance Company claim that you modified your mower to the point of being unsafe, and thereby deny a claim?

    Surely it would make you more liable if it’s a homemade OCD. But what if you installed an after-market OCD?
     
  2. Speculation is ok, but I would like to hear from the MasterChute guy on this issue. Since he would likely have some concrete (or at least educated) answers.
     
  3. More likely the insurance would pay the claim and cancell your insurance. They get to skating on really thin ice by denying claims. Especially liability claims.

    Dave
     
  4. Gr grass n Hi tides

    Gr grass n Hi tides LawnSite Bronze Member
    Posts: 1,020

    Good point, but like you said we'll have to see what/if he says anything. He might not be very excited about disclosing such information (e.g. actions filed for products liability).
     
  5. Gr grass n Hi tides

    Gr grass n Hi tides LawnSite Bronze Member
    Posts: 1,020

    Respectfully, I disagree. Denial of claims pays very large dividends for insurance carriers. They get to keep and invest profits (the premiums we all pay) for several years by forcing people into protracted litigation. A common tactic.

    It's not thin ice for them, it's the insurance carrier's right to deny claims. Some carriers continuously deny 95% of claims regardless of the circumstances. It's real. I have seen thousands of claims.

    My opinion on the original topic - let's just say that if I'm an insurance adjuster and I have knowledge that the discharge chute was operator controlled..........YES the operator is most definitely exposed to more liability, guaranteed 100% & I don't care if it's after market or homemade. If I'm an adjuster I put you on the hook in the blink of an eye because human error enters the picture & most likely prodct liability all but vanishes.
     
  6. MasterForm

    MasterForm LawnSite Member
    Posts: 83

    We have looked at it from all angles, including insurance and legal issues. Our product DOES have product liability coverage and general liability coverage. The underwriter does quite an extensive evaluation before issuing a unit-specific liability policy.
     
  7. GLAN

    GLAN Banned
    Posts: 1,647

    Nice to know your product carries insurance


    If there was a claim for an accident described above. There would be at the very least in informal inquary to the accident. Common sense plays a big roll in such an accident.

    In all the years I have not heard of once an accident as described.

    I do know of accidents where decapitation has happened when employees ride in the back of dump trucks not looking forward and the truck just makes it under an over pass, but the employee does not.
     

  8. I agree. Some companies are worse than others. And to limit my personal liability the only other thing I would say about that is that the problem is NATIONWIDE.

    Of course the courts and attorneys look at us as mindless drones who have barely enough brainpower to follow a walk behind around a lawn.
    I would prefer if they would consider us as professionals in our field with enough insight to possibly improve a product.

    Bluesteel is installing a safety device. An OCDC chute would be an improvement over NO chute which most of us run.

    I'll agree further that you can expect NO support from the manufacturer on liability calims if they can possibly avoid it.

    If for instance your mower deck developed a crack, few manufacturers would advise you to simply weld the crack. It's time for a new deck!
    And aftermarket parts. Forgetaboutit! Some manufacturers even post warnings about how they cannot gurantee the integrity of the machine if you use aftermarket parts.

    And what about using double blades? I'd hate to be the one to test that modification in court.

    All I'm saying is that you can't live your life or run your operation according to what some insurance company or judge might do.
    Because there is no way to anticipate what they may decide to rule.

    And how could you possibly comply with OSHA guidelines? As far as I can find out they still require long sleeved shirts, long pants, heavy steel toed boots, hearing and eye protection and a hardhat. (I'm still trying to figure any logic behind requiring a hardhat) The clothes alone would kill you!
    I've heard OSHA fines you $1,000 for a "mislabeled" gas can. You can have a Gasoline can clearly marked as such, but if it's not marked Gas and oil mix, you're fined $1,000.
    I think the OSHA rule is if they show up, YOU PAY. Because they are an agency which survives on the fines they levy!
    I wouldn't say they'r not an agency which has done a lot of good, but lets keep it within reason! And update the clothing requirements to what you see on the cover of every turf industry publication...SHORTS!


    The less said during any "investigation" the better. Because the first thing an attorney wants to know is "What did you tell them?"
    Personally I'm going to be like Bart Simpson: "I didn't do it." or "It was like that when I got here."
     
  9. No need to talk about OSHA. I only brought up OSHA because a couple of people have told me they put limits on blade speed. Therefore if someone modified their mower to increase that speed, the LCO would obviously increase their exposure (and minimize the manufacturer) to any liability in an accident. Since most mowers don’t come with an OCD, putting one on a mower would be modification that could but a LCO at financial risk.

    Most everyone follows the topic, but for some reason, a few people always seem to miss the point. They look at an example (putting someone’s eye out with a rock), and say something like, “In all the years I have not heard of once an accident as described.” As if what they’ve heard (or not heard) of has any relevance to the point of the thread. It wouldn’t matter what example I used, these people would find an exception to it. OBVIOUSLY the chances of a catastrophic accident are slim, but the consequences could be ruinous to a LCO. Of course we should try to avoid every hazard, but accidents happen, hence the need for insurance, DUH! Please, stay relevant and contribute to the topic of the thread or keep quiet.

    MasterChute looks like an awesome product. I appreciate Masterform’s contribution, but it was vague. Then again I wasn’t specific either. So, if your mower throws a golf ball (people actually hit and throw those) and if you’re using the stock deflector that comes with the mower, there’s little chance it will fly very far because of the channel-shape of the stock deflector. However, an OCD is basically a flat plate. A rock couldn’t fly very far coming out of the discharge at a right-angle. HOWEVER, a golf ball could easily (and probably will) come out at an angle behind the OCD plate and fly quite a ways.

    Lets say that golf ball hits someone in the face, putting their eye out. Obviously the LCO is at fault. The LCO doesn’t say a word, just calls his insurance agent. The injured person’s attorney smells blood in the water and sues the LCO; the homeowner; the mower manufacturer; the mower dealer; the golf course across the street; the golf ball manufacturer; the gas station that sold the LCO gasoline; etc. etc. Everybody’s playing Bart Simpson; especially the attorney for the mower manufacturer, who points out that the LCO is using an after-market OCD, thereby exempting the manufacturer of liability. EVERYBODY involved says, “OCD? What’s that?” Then everybody’s attorney jumps on the OCD liability bandwagon. Especially the LCO’s insurance company.

    Will the insurance company be able to deny the claim because the LCO modified their mower with an OCD?

    Is the OCD Manufacturer liable in any way?
     
  10. Gr grass n Hi tides

    Gr grass n Hi tides LawnSite Bronze Member
    Posts: 1,020

    Like you suggested, it is impossible to think of every liability, but some are more obvious than others. Stuff like this really does require some thought on our part so we can do what we can, within reason, to head off problems.

    The one constant with juries is that they are wildly unpredictable. Judges sometimes have their own agenda and it shows in their rulings. I sure don't want somebody else deciding my future on a whim. Maybe the judge has a tee-off time he's late for, or maybe you've got a juror or two that want to get the heck out of there so they can take their kids to Pizza Hut. Stuff like that really does happen. I've seen it. Once I had a witness tell me "whatever you want, man I don't care..........the guy is guilty, fine.........I have a business to tend to and can't afford to spend any time in court whatsoever." Naturally, we didn't use him. It's the people that don't come out with it but hide their thoughts that you have to worry about.

    For example, on this discharge issue, say a freak accident does happen and a guy is killed by a piece of wire (or whatever) that your mower discharged:

    Plaintiff's attorney - "Mr. LCO you run your mower with an operator controlled discharge chute, is that correct."

    LCO - "Yes."

    Plaintiff's attorney - "Is'nt it also true that you replaced the mower's factory manufactured deflector with this operator controlled device."

    LCO - "Yes."

    Plaintiff's attorney - "You have asserted that you had the operator controlled device in the down position at the time of the incident which is the subject of this action, is'nt that true?"

    LCO - "Yes."

    Plaintiff's attorney - "What evidence do you have to offer the court that is in fact the case...........is'nt it true that just a flip of a switch or turn of a handle can move your discharge chute to the down position in just a second or two...........I believe you testified to that fact during your pretrial deposition."

    Bingo. You're nailed unless you have a credible independent witness that is willing to stand up for you in court. Not only that, but if a catastrophe does happen, you have probably changed a lot a lives (the deceased's family and friends) in a way that could never be measured.

    Accidents happens, certainly. That's why their called accidents. but negligence occurring when a hazardous situation could have or should been avoided is another thing.

    Dave, I'm not saying you would ever do anything hazardous intentionally. I like your posts and I'm quite sure you run a top notch operation. All of these comments, for what they're worth, are just to try and get everyone out there to consider things a little. I hope you never have to contend with a bad situation like we're hypothesizing about.
     

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