By James R. Waite, Esq.
Q: Whose responsibility is it to create emergency evacuation plans for tents?
A: In the past, this responsibility has typically fallen on the event planner or equipment lessee (customer). Fortunately for rental operators, these parties continue to shoulder much of the responsibility, but that is likely to change, at least to a degree. This appears to be yet another area where rental operators may soon find themselves being held liable for compliance with safety requirements over which they’ve historically had little or no control.
Several things have changed:
The Product: Tents have become larger and more complex.
The Regulatory Environment: The laws, rules and regulations that apply to tent installations and uses have expanded dramatically (NFPA, IFC, ANSI, OSHA, local building codes and local fire codes, to name a few).
Legal Duties: Rental operators now have various duties which are “implied” under the law, including the “duty to instruct” their customers in the proper and safe use of rented equipment, and the “duty to warn” them of potential hazards.
Lawsuits: Lawsuits filed by parties claiming to have suffered injuries and damages in tent collapses have grown dramatically in terms of the number of suits and the amounts claimed, now that “Products Liability” law (which permits plaintiffs to sue anyone in the “chain of distribution” of an allegedly defective tent, including equipment lessors) has become generally accepted throughout the country.
Customers: Customers demand ever larger and more complex tents, but few have even a rudimentary understanding of the need for evacuation planning or what it entails.
These factors may create the impression in the customer’s mind that the rental company, being the party with the lion’s share of the relevant expertise, should provide (or at least instruct the customer regarding how to provide) an evacuation plan for each rented tent.
So what are tent rental operators supposed to do now? I recommend starting with three things:
1. Make sure your rental contract includes the necessary provisions to make the customer responsible for evacuation planning:
- the customer’s acknowledgment of receipt of all required use and safety instructions and warnings;
- the customer’s agreement to comply with all applicable federal, state and local laws, rules and regulations; and
- the customer’s agreement to indemnify, defend and hold harmless the rental operator (you) for any and all liabilities, claims and damages.
From a legal standpoint, this is still the single most important means of protecting the rental operator (incredibly, it is still often overlooked).
2. Provide the customer with “Use and Safety Instructions” which reference NFPA 101, IFC-2012, and OSHA Part 1910.38, and include a Template for an Evacuation Plan, which includes a disclaimer using words to this effect:
This form is provided for educational purposes only. The lessee is advised to develop an Evacuation Plan specifically suited to the unique characteristics of the lessee’s event, as well as state and local laws, rules, regulations and building/fire codes.
Your customers may not even know where to begin with respect to emergency planning. By providing a template you may help them (and therefore, yourself) avoid a costly, or perhaps tragic, mishap, and satisfy your duties to “instruct” and “warn” (without creating additional liability for yourself).
3. Require the customer sign a “Delivery and Acceptance Certificate” upon completion of the tent installation, acknowledging that the tent was installed properly and in accordance with the terms of the Rental Contract as well as all applicable laws (which helps eliminate claims that: “The tent was defective from the time it was installed…”).
The expansion of legal liabilities for rental operators has become something of an “arms race,” with rental operators trying to anticipate and eliminate new weapons (types of claims) which are forever being added to the arsenals of plaintiffs’ attorneys. My advice is to get out in front of the issue before a lawsuit is filed. Doing so is relatively quick, easy and inexpensive (a tiny fraction of the cost of defending a lawsuit).