Ignorance is no excuse

P

Phil Ackland

KEC Expert
I am writing this with experience drawn from 37 years in the exhaust cleaning field, 25 year of which were running a company of 15+ full time employees, and 19 years of educating and consulting to fire investigators, fire prevention officers, attorneys and similar interested parties.
This is an attempt to assist you in avoiding possible insurance claims.

With regard to "responsibility" (liability) of a cleaner or cleaning company, employers are responsible for their employees or sub contractors. That is a fact, deny it at your own peril.

Yet, even knowing this, there is a simple reality that is either being missed or ignored by many (especially large cleaning companies). That reality is that, if a person sees or knows of a public safety hazard or fire risk, they have a responsibility to report it, period. Poorly installed or improperly cleaned kitchen exhaust systems are a fire hazard. All exhaust cleaners use the "risk of fire" as a sales tool to one degree or another.

Cleaners who claim that they didn't know anything, yet are "Certified" are deluding themselves. You can't have one (the claim to be certified) without the other (knowledge of what you are certified to -- #96, PWNA or IKECA Standard). Insurance companies and the court are not going to buy this "Certified ignorance" argument.

So, if you or your crews wish to use ignorance as the reason why you "didn't tell the restaurant that they had a serious problem," with obvious installation problems, access or cleanability of the exhaust system, then I would suggest that you stay as far away from any knowledge that NFPA 96 even exists.

For those of you who are Certified, it is too late. In your case the only hope is education. Maybe "training" your crews (which, as your certified selves know, is what it says in #96) will save you. Otherwise I see no defense for you. In fact, I may see you in court.

Personally, I think everyone (all cleaners and associations) know this and it is a smoke screen to other hidden issues. If you want respect then you have to accept responsibility.
 
I am sure most will agree that the cleaner has a responsibility to tell the customer of issues and problems regarding the system. In turn the AHJ's and the manufacture and the installer have a equal if not greater "responsibility" when it comes to the safety of the customers systems. To burden the cleaner primarily is simply a way of shifting blame to the weakest party.

I would think that the all knowing AHJ's should hold most of the responsibility since they approved and sign off on most if not all new construction. They should be the first in line to instruct the customer and the installers.

The cleaner comes in after the system is signed off and now it is his burden? We must follow the rules and regulations after the building has been built and everyone else is pointing to the mechanical code or some local fire ordnance and we are told to that it passed.

It seems like we are all going up hill with regards to this issue, we can't win.

If we show the issues-what then? Can we clean the system at that time without risk?

Thanks

David:(
 
I'm not suggesting for a minute that others do not have an equal or greater responsibility. But that is of no consequence when it is you that is getting sued.
What I have seen is the gleeful willingness, on the part of the insurance industry, to divide the costs of a fire up. Usually fires (from my experience) are running at around $2 mil+. If they can cut it up amongst 4 or 5 parties they are happy.
So your share is only say $500,000 -- plus you will very likely be looking for a new insurance company when your policy is up and good luck finding one (now that you have a "record").
My primary point is that education is the only way there is going to be any improvement in your "protective covering." and that is not "bullet-proof."
I am realistic to the fact that many cleaners are not highly schooled. That is an issue of delivery though. They can still learn a few fundimental rules. That is all it should take to "protect" the company to a reasonable degree, even if you are cleaning a type II system over a char-broiler.
 
I guess my problem is simply when you do it right you are still one of the five lucky ones and your insurance drops you anyway. You can't win the game-you can only come in the way Sunny Cide did.

David:p
 
If you do everything by the book, got all your bases covered, do the best job possible, notify the customer of all the deficincies, take awesome notes and pictures of everything...you will still be named in the lawsuit. Todays method with attorneys is to name everybody (subrogation) and then find out who's got the money and who can't afford to defend themselves or has a big policy to cover it. Its a pity that it has come to this but that is pretty much what it comes down to.
 
In case you were wondering why the above posting was deleted.
The message wasn't from me but from Rory Wilson. However I was in Louisville on Rory's computer last week and I guess I hypnotized it or something, it thinks I'm still there.
Anyway I had a couple calls. I asked David S. to delete it until Rory can wake his machine up and post it again. Please don't get annoyed with Dave, he was doing what I asked.
Thanx
 
Your right Grant, In this business it is quickly becoming mandatory that you perform your work by the book and when a customer has a fire there are always several vendors that are always brought into the court case. We have been in several court cases and each time we have been relieved of any responsibility to the fire. I have been told by both attornies and judges that it was because of our paper trail and our crews consistency of being able to fill out paper work that was easily communicated to all parties. Without our crew leaders having some "Training" we would be sitting ducks. In everyone cases the customer was found responsible, to some degree as were other vendors. I feel that by certifing our crew leaders it will draw a line in the sand and this line will help the AHJ and Insurance companies to better make decisions as to what are our responsiblities, the customers responsibilites and other vendors are in each case. Right now the AHJ's and Insurance companies are ill educated and for them to make a decision of responsiblity it requires them to bring everyone in to each fire case. Unfair as this is I can see the light at the end of the tunnel and look forward to the day when crew leaders are Qualified, Trained and Certified.
 
Dear Phil,

I agree that everyone involved should be educated (and I don't just mean a fancy slide show and a nice speech about hood cleaning). I mean real honest to god, scraping and washing numerous (at least 5-10) complete exhaust systems to bare metal while being taught and observed by the instructor. There should be a skills checklist to actually verify that the cleaning that was performed meets and exceeds the standards put forth by the NFPA 96 2001.

David- I agree that the AHJ's have an inherent amount of responsibility since they "go by the rules" when installing and checking these systems. But it is up to us to notify them of deficiencies noted even after it has been installed. How many of us (cleaners) work directly with the companies that install the grease exhaust systems so that we can make sure that they are cleanable and meet codes? It would seem to me that if the system was installed properly from the first, it would make it easier in the long run. Maybe there should be a way that the grease exhaust system can't be used until it has been verified as cleanable by a certified hood & duct cleaner.

Grant- I agree with you that all is fair in love and lawsuits. There's not much one can do to protect themselves from lawsuits, except keep doing the things that you mentioned (photos, excellent documentation, copies of letters sent to AHJ's, etc.) In some fields, if it isn't written down (diary format) it's considered not to have happened at all.


Now, what are we going to do about it? We are the industry leaders. We are the ones (Phil and myself) that are trying to set up new standards by which kitchen grease exhaust systems are cleaned.

Both Phil and I have set up means for employers and employees to become properly educated. We (ACS) even personally train our guys in all aspects of cleaning and what and how to report deficiencies to the AHJ's.

The reality of it (as both David and Grant have pointed out in other posts) is that most owners don't care until their restaurant burns down.

How can the cleaner be responsible for the restaurant burning down when the owner won't allow a proper cleaning frequency to prevent the grease from building up that fuel the fire that burns down his restaurant? After it burns is when everyone gets concerned (a little too late if you ask me).

What we need is this mix of suggestions to fix things is an iron clad requirement that the restaurant has to be cleaned by a certified company (and the person actually doing the cleaning should be certified as well) on a regular basis per the recommendations of the NFPA 96 2001 Table 11.3 Inspection Schedule suggests. This would at least prevent the restaurant from burning down if the grease exhaust system does burn, because it will properly contain the fire and extinguish itself from lack of fuel.

No more hem and hawing around the subject. Until it is absolutely mandatory that they be cleaned, everything else is just chasing our tails.

Now Phil and I may not agree all the time on how to go about getting things done, but I can tell you that both of us are working very hard to help a system like this get up off the ground.
 
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Just a note to back up some of the lawsuit stories,
We were told by a customer they no longer needed us (someone cheaper they said), as it turned out they never had it cleaned again. The place burns down a year later. We are named in the lawsuit since our hood tag was still on the hood. We got out of it because on the last invoice, our crew leader had written in big red letters after two night of cleaning.
(THIS SYSTEM IS REASONABLY CLEAN CONSIDERING THE SEVERITY OF IT WHEN WE STARTED, HOWEVER IT DOES HAVE SERIOUS ACCESS ISSUES THAT NEED TO BE ADDRESSED TO COMPLETELY CLEANED, ALSO THE EXHAUST FAN BEING USED IS NOT INTENDED TO BE USED AS A GREASE EXHAUST FAN) All in a neat little package complete with manager’s signature. We got lucky that time. We have since increased the paper work fill out on each job, and are insistent about it being done
 
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