Ice, Ice Baby

Last Updated on Tuesday, 10 January 2017 09:20 Written by Chris Griswold Tuesday, 10 January 2017 09:20

Icy, snowy, slippery sidewalks (say it 3 times fast).  We’ve all seen our share this winter.  In response to a large number of inquiries I’ve received from concerned hotel, restaurant, office and retail owners and tenants, as well as the several requests I’ve received from our local insurance underwriting community that I write on the topic, I wanted to write a short piece in the hopes it saves some of you needless worry and, possibly, money.  Accordingly, I’ll answer the two most commonly asked questions from the groups mentioned above.  This should be helpful to everyone… (and don’t forget to click on my Facebook or YouTube links below to also see my short video on this material).

Ice, Ice Baby (Vanilla Ice, To The Extreme, 1989)

Question #1:  “If I put out snow melt on my sidewalks, does it somehow serve as an admission of guilt if someone should subsequently slip and fall on the premises?

Answer:           No.  The very act of putting out snow melt, etc… in an effort to prevent people from slipping, falling and hurting themselves cannot later be used against you.  In other words, you can’t use someone’s efforts to avert an accident against them later on if and when the accident occurs.  If you could, it would be tantamount to saying “…I’m suing you for trying to help me.”  Now, there are other relevant factors including, but not limited to, whether or not another person slipped and fell in the same area just before the plaintiff slipped and fell, whether you put out enough – and many others.  However, the fact that you put out snow melt, in and of itself, is not an admission of guilt; nor can it later be used against you in showing negligence.  Accordingly, don’t be afraid to put out snow melt when the weather gets bad.  However, and most importantly, when you put it out, put out enough to really do the job (including getting out your shovel if need be so the area(s) in question are clean, clear and safe).

Question #2:  “When should I put out snow melt?

Answer:          It depends.  Actually, the legally correct answer to this question is “when it’s reasonable to do so.”  Say what??!  I know…, it’s legalese and not really clear.  However, you can pretty much nail it down if you ask yourself the following question: Given the current weather conditions; if my mother came to see me at work today, should I put out snow melt?  If the answer is yes, put it out.  Otherwise, don’t sweat it.

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Charlie Crouse / President / Summit Bank / Oklahoma City, Oklahoma

 

From 1/21/16 Oklahoman Article (which is an adaptation from the above):

“Businesses should use reasonable care in preventing icy accidents”

Q: When is it reasonable for commercial establishments to put out snow melt?

A: Ask yourself this question: “Given the current weather conditions; if my mother came to see me at work today, should I put out snow melt?” If the answer is “yes,” put it out.

Q: If businesses put snow melt on their sidewalks, does it serve as an admission of guilt or negligence if someone should subsequently slip and fall on the premises?

A: No. You can’t use someone’s efforts to avert an accident against them if and when an accident occurs. However, and most importantly, when you put out snow melt, put out enough to really do the job, including getting out your shovel if necessary so the areas in question are clean, clear and safe.

Q: Are there conditions in which operators could be sued by accident victims, such as if they didn’t put out sufficient snow melt?

A: Perhaps, say if someone had fallen previously and the business operator had failed to timely remediate the area in the interim. Other considerations might be the state of the victim’s physical condition prior to their fall and/or whether such victim has previously filed suits for other alleged falls in their lifetime, and/or how quickly the weather changed after the first fall so as to determine whether the operator had enough time to use reasonable efforts/reasonable care in preventing the subsequent fall.

Q: In exercising the use of reasonable care, does potential liability differ if the business operator owns or leases the property?

A: Yes. An owner of a commercial, non-residential project who’s leased it to a tenant operator to use and maintain won’t likely be liable for snow/ice removal on the tenant’s demised premises, except for the common areas of the project (if any) which will usually remain the responsibility of the owner of the commercial project.
Owners of residential, commercial property (who are apartment operators) should instead use “best efforts” to keep their properties as free as possible of ice and snow, as people have to get in and out of their homes. Owners of rental homes will usually look to their tenants to keep the home free of ice and snow (since the tenant lives there alone, without landlord or any of landlord’s employees present on a regular basis). However, if an accident arguably results at the rented home from some underlying construction defect of the house that is beyond a tenant’s control to mitigate or manage, then the owner of such rental home could be liable and joined as a defendant in any subsequent lawsuit.

PAULA BURKES, BUSINESS WRITER

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Maintaining LLC’s

Last Updated on Tuesday, 9 August 2016 01:06 Written by Chris Griswold Tuesday, 9 August 2016 01:06

We all use LLC’s.  However, too many show up on my desk that are “not in good standing.”  Why?  How do you keep it from happening?  Read below, this is good stuff for everyone to know… (and don’t forget to click on my Facebook, Linked In or YouTube links below to also see my short video on this material).  Also, don’t forget to occasionally glance online at the Journal Record, you might spot one of my occasional contributions to the Lot Lines column.

Maintaining LLC’s

LLC’s are how real estate transactions occur; most of which are not in good standing or even dissolved to the surprise of their members/managers come time to sell or re-finance.  What do you need to remember when using LLC’s?

First, remember your LLC was filed with the Secretary of State on a certain day; upon the anniversary of which the Secretary of State will E-mail (not snail mail) the registered agent something called an “annual certificate.”  The annual certificate will ask the registered agent to confirm: 1) that the business is still active, and 2) that any new place of business be disclosed on the form – along with a payment of $25.00 being mailed to the Secretary of State.  The certificate is due on the anniversary filing date of the domestic LLC with the Secretary of State (or the anniversary date of registration of any duly registered foreign limited liability company with the Secretary of State).

Second, if you fail to do the foregoing (i.e., fail to mail in the completed annual certificate along with your remittance of the $25.00 to the Secretary of State) within 60 days after such anniversary filing (or registration) date, your LLC shall cease to be in good standing with the State.  So what?

Upon losing its status of good standing, the LLC:

  • Cannot bring any suit against any person or entity in any court in the State (which makes it hard for the LLC to collect monies due it, or
  • Will be dissolved automatically (as a matter of law, 3 years after such anniversary filing (or registration) date. This might mean the LLC will have to later change its name, if, years later, its previous name has since become unavailable.

If this happens, it’s not the end of the world (as the LLC can be re-instated and the managers/members themselves will not be held personally liable for any unperformed duties or obligations of such LLC simply due to such unfiled annual certificates), but it will slow up your closing, as your banker/escrow officer will tell you.

So, set an annually re-occurring reminder on the calendar starting about 45 days prior to such anniversary filing (or registration) date, and then diligently be on the lookout for these annual certificates that now only come to you via E-mail (and don’t forget to check your junk e-mail folder too during that time period).  Failing everything else, around the time of the anniversary date, call the Secretary of State and inquire about getting your annual certificate filed.

The information presented within this article is of a general nature and is not intended to be relied upon as legal advice in any particular matter without first consulting qualified counsel.

What My Clients Are Saying

“Chris Griswold has been a tremendous asset in making my dream a reality! His legal advice, strong business acumen and initiative in helping me find the answers got me started on the right track. His honesty, common sense and strong interest in helping me succeed was a welcome addition in finding the right partner for legal advice and direction. I look forward to working with him again in the future.” Margaret Holloway / Partner, Café 501 and Boulevard Steakhouse; President, Senior Care Network / Oklahoma City, Oklahoma

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Big Picture on Personal Guaranties and Bankruptcy Laws

Last Updated on Tuesday, 14 June 2016 12:59 Written by Chris Griswold Tuesday, 14 June 2016 12:59

At some point along the way, we’ve all signed personal guaranties and, likewise, we have also asked others to sign them for us.  Why?  It’s time to clear the air on what is accomplished when a personal guaranty is secured in a business transaction (whether it’s a loan, a lease or some other form of contract) and, conversely, how bankruptcy laws enter into the picture with their own set of mandates.  This is good stuff for everyone to know… (and don’t forget to click on my Facebook, Linked In or YouTube links below to also see my short video on this material).

Big Picture on Personal Guaranties and Bankruptcy Laws

Personal guaranties ensure that, regardless of whether the person with whom we’re dealing uses an incorporated entity (e.g., a corporation or an LLC) to conduct their business with us, we can always go find that person (referred to as a “natural person” under the eyes of the law) to collect our money.  In other words, if the natural person later on: a) defaults on their contractual obligations, b) dissolves their incorporated entity, and c) then goes down the street, and resumes their business operations under the name of a newly formed, incorporated entity, we can always go find the natural person and collect the debt.  Having a personal guaranty of a debt is a very good thing to help you collect your debt and is strongly encouraged….

Against this backdrop are the bankruptcy laws which, among other things, declare that any payments received by a creditor from a debtor within ninety (90) days of such debtor personally filing a petition for bankruptcy may be avoidable by a bankruptcy trustee for the benefit of other creditors.  What this means is that if the debtor works out a payment arrangement (or a settlement arrangement) with you and starts making payments, then, if within ninety (90) days later, they personally file a petition for bankruptcy, then the payments made to you during the ninety (90) day period are likely avoidable in a bankruptcy.  However, the golden rule still is to always take the money now and worry about preference liability in a bankruptcy later

Accordingly, if you’ve got a personal guaranty and go get cash from the debtor, that’s great….  However, keep your “eyes open” as to whether your debtor later files bankruptcy within 90 days of your receiving the money.  In certain situations, you may be better off to avoid all trouble by taking a lump sum settlement early on before the debtor’s financial picture further deteriorates and decides to personally file for bankruptcy.

The information presented within this article is of a general nature and is not intended to be relied upon as legal advice in any particular matter without first consulting qualified counsel.

What My Clients Are Saying

“Chris is a competent, hardworking attorney.  Chris is always there when you need him and you don’t have to wait a day to get a returned phone call.  He does what he says he is going to do in a timely manner.  He has the expertise to make problems simpler which makes them easier to solve.  He is honest, consistent and reliable.  He loves what he does and is active in the community.”
David Ostrowe / Owner, O & M Restaurant Group, Inc. / Oklahoma City, Oklahoma

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