Addressing property damage liability in the contract

DVS Hardscaper

LawnSite Fanatic
Location
County Jail
So many scenerios.

Heavy trucks on the driveways. (this is very realistic and nearly unavoidable)

Tree limbs hanging over the driveway that could get ripped off the tree(s) when the dump bed is raised. (even if the limbs have been cut back)

Damages to plantings when passing through from the front to the back.

Damages to underground irrigation lines, electric dog fences, electric lines for the light in the shed in the corner of the backyard. (unknown conditions underground)

I could go on and on.

Do you define your work zone? You're building a patio in the backyard, but you need to unload the materials in the driveway and access the back via the sideyard with the loader.

How far do you go with the clauses on your contract?

I have a personal friend that's an attorney. His expertise is not contractor law. But he's still a good person for obtaining his unofficial thoughts. He says "you don't want to be too specific with your clauses because a judge will say "you specifically listed this and specifically listed that but you didnt list this", keep your statements very simple".

I could pay an attorney that specializes in contractor law to draft some clauses, but then when my prospective clients see my proposal they're not going to sign it until their attorney reviews it, or they won't sign it at all.


Has anyone here ever contacted their liability insurance provider and asked if they have any clauses they like to see in contracts?

My friend also suggested that maybe I have a sentence that says the client will not sue me for a dollar amount higher than the actual damages. So if we back into their garage and cause $8,200.00 in damages - they won't come back and try to sue me for punitive damages. We did $8200 in damages, that's what you're going to get. Period.

Our local block manufacturer put on a seminar a few years ago. They had an attorney who specializes in contractor law speak to us for about an hour. Very interesting insight, he addressed things most of us have never thought of. One of his pet peeves is a clause stating that client will not come back and sue the contractor, no matter what the reason, after as specified period of years.

How bout your thoughts and insight?
 
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Gilmore.Landscaping

LawnSite Senior Member
Location
Ontario
We do have certain clauses in our contract that address common issues such as..

"All underground services not marked by the City/Hydro/Call One are the responsibility of the client"

"All damaged areas as a result of construction work will be restored to original or better condition"

In most situation we keep out trucks off the driveway and cover the path with plywood for the skid steer to run over. That usually limits any weight issues on the driveway.

Also we do have a section we tailor to all contracts stating where we will pile supplies. "Materials are to be stored within work area or within a mutually agreeably location on the driveway. At no point will any materials be left on the roadway overnight"
 
OP
DVS Hardscaper

DVS Hardscaper

LawnSite Fanatic
Location
County Jail
In our case, using the driveway is a necessity. Retaining walls / and or grading jobs will often require importing a large amount of fill and top soil.

in 2001 we did a patio with a house situated where we had to use the driveway to get the materials and equipment into the backyard. One of the dump trucks delivering the gravel cracked the driveway apron. The apron had no rebar, no reinforcement. Without hesitation, we did replace the concrete. But really, to do the work affordably, you have to use the driveway and the client should be prepared for worst case scenerio and agree that it's not the contractors fault. A driveway is only as good as what's underneath it, and we have no idea what's under it.


 
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DVS Hardscaper

DVS Hardscaper

LawnSite Fanatic
Location
County Jail
Back in late November we did a job involving 14 loads of fill and 3 loads of top soil. I looked at the job in September and they had an old driveway - no worries about damaging it. We come to do the work in November and we're greated with a brand new asphalt driveway with seal coating!!!! SURPRISE SURPRISE SURPISE!!!! Contract was already signed. Luckily i have a permanent clause addressing this. But in the end the driveway held up just fine.



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Gilmore.Landscaping

LawnSite Senior Member
Location
Ontario
I guess we don't have a clause that addresses damaging a driveway in particular, but it is something we would address on a per time basis. You will never have a contract that covers your @$$ 100% of the time but you need to add in allowances or provide a written warning to the customer that damages in these certain conditions can occur.

Sounds like you already do that.
 
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DVS Hardscaper

DVS Hardscaper

LawnSite Fanatic
Location
County Jail
I think its very reasonable for a hardscape company to have a permanent clause addressing "pavements".

In 2010 we did a paver pad infront of a house. They had a horseshoe driveway that brought you to the front door. So they had us dresss up the front by installing pavers in the center of the driveway. The front of the property was a steep slope, so this mean the only way to access the work area was to drive on the driveway leading to the front.

Again, we contractors have no idea whats under the existing pavement and we have no idea how thick the pavement is. We do usually have an idea what the specs are *supposed* to be. In this case the driveway was literally ONLY 2-inches thick!!! I'm not making this up!

After making this discovery we were VERY careful and no harm was done.

Just another example of addressing liability for pavements.


A point of reality to be cogosent of is that many hardscape jobs are done after the fact. The house is 15-20 years old. The kids are finished college and moved out. Mom and dad just paid off the college bills and now they're finally ready to spend their money on theirselves. At the place they've called home for the last 15-20 years.


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zedosix

LawnSite Silver Member
Location
Eastern Ontario
Dvs, when you say "only 2" thick" are you referring to the asphalt thickness or base and asphalt? Our driveways are paved with 2" asphalt and they all crack within a couple years.
 
OP
DVS Hardscaper

DVS Hardscaper

LawnSite Fanatic
Location
County Jail
Dvs, when you say "only 2" thick" are you referring to the asphalt thickness or base and asphalt? Our driveways are paved with 2" asphalt and they all crack within a couple years.
I'm talking asphalt thickness.

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DVS Hardscaper

DVS Hardscaper

LawnSite Fanatic
Location
County Jail
Don't want to get off topic but what is the norm for residential application.
Andy, I'm not sure you're using the correct terminology.

Base = Aggregate

Base Coat = is asphalt with larger diameter aggregate

Top Coat = is asphalt with a very fine diameter aggretate.


A residential asphalt driveway should never be less than 4-inches in thickness, this includes both the base coat and the top coat. (I think the min standards here in MD is 3-inches of base coat and 1" of top coat, if my memory serves me correctly)

The driveway I mentioned had two-inches of asphalt. Period. I wasn't there to take a study on the asphalt. I dont know if it was base coat or top coat, didn't matter to me.

Many asphalt contractorw will not even apply a top coat. This saves them money, so they can price the jobs for less and get the work. Homeowners don't know better.

If an asphalt driveway is properly installed, using the correct thickness of materials - there is no reason why a hardscape contractor can't use the driveway for staging materials, unloading materials, parking the truck, etc.



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