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Legal notebook: Avoid assumptions, keep records

By and |  December 1, 2015

Don’t presume, assume or anticipate anything without first planning or analyzing data.

That’s one of the messages Jeff Friedman, an attorney at Friedman, Dazzio, Zulanas & Bowling, P.C., offered aggregate producers during an educational session at the 2015 Quarry Academy hosted by Dyno Nobel and Sandvik in San Antonio.

“Generally, it’s dangerous if you fail to appreciate non-safe situations,” says Friedman, whose firm is based in Birmingham, Ala. “That’s where presumption comes in. In aggregates, it’s never acceptable to play with odds, underestimate or take shortcuts with scenarios.”

Liability hides in plain sight, Friedman adds. When producers buy a crusher, for example, they also naturally must have a system to keep dust levels related to that crusher down.

“If not, you could face a liability lawsuit,” Friedman says.

A similar dynamic pairs blasting and seismographs. Seismographs might help protect producers against blasting lawsuits, he says. But who bears responsibility for hiring a company that offers seismograph services? Is it the aggregate producer or the blasting company?

“I would argue the quarry should hire the seismograph company,” he says. “You want someone with a little more autonomy over the quarry to make that type of decision.”

Defending a blast

Mike Bowling, another attorney at Friedman, Dazzio, Zulanas & Bowling, P.C., also shared legal insights with aggregate producers at Quarry Academy. One topic Bowling discussed was recordkeeping and its role in legal matters.

“Records matter,” he says. “Keeping good records is an absolute prerequisite to winning any blasting nuisance lawsuit. Jurors think this information is highly important. They check documents. A juror will look at documents to decide if they like you or not.”

Recordkeeping often helps defendants win liability cases, Bowling adds.

“Not always, but usually,” he says.

Thorough records can come in handy in the event of nearby homeowners saying a quarry blast cracked their homes.

“You always hear stories about how a home cracked due to blasting damage and people will post pictures,” Bowling says. “But those homes were often like that before a blast.”

Pre-blast surveys are instrumental to an aggregate producer’s defense, he adds. They can help producers win blasting nuisance lawsuit cases. Also, showing how an aggregate producer violated the law is key for a plaintiff to win a blasting nuisance lawsuit, Bowling says.

“You need to be able to prove what the plaintiff is saying is false and wrong,” he says.

So the best defense producers can take is to record any information they can.

About the Author:

Megan Smalley is the associate editor of Pit & Quarry. Contact her at msmalley@northcoastmedia.net or 216-363-7930.

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