Published on: August 23, 2010
Massachusetts’ somewhat idiosyncratic slip-and-fall liability defense appears to be melting. Property owners in Massachusetts, as in other jurisdictions, have a duty of “reasonable care,” requiring them to keep common areas free of defective conditions. But unlike their counterparts in most other states, Massachusetts courts recognize a distinction between “natural” and “unnatural” accumulations of snow, the former resulting from the falling and freezing of snow, the latter from something an owner did in response. Under this theory, a plaintiff who suffered a slip-and-fall injury might not have a claim against the property owner, if a court determined that the accumulation was “natural” and thus represented an “obvious” risk that the plaintiff should have recognized and avoided.
The “natural accumulation” defense is an extension of the open and obvious condition defense, which holds that an individual owes a duty of care to avoid open and obvious conditions. A landowner is not responsible for injuries or damages caused by dangers on the premises that would be obvious to persons of average intelligence. Community associations and other Bay State property owners have successfully used both the open and obvious defense and the natural accumulation defense to win summary judgments, dismissing slip-and-fall suits in their earliest stages on a court’s finding that the snow accumulation was “natural,” never getting to the question of whether the owner owed a duty of care to the injured party. That legal framework seems likely to change.
Signaling this shift is a recent Massachusetts Appeals Court decision that virtually eliminates the open and obvious defense in Massachusetts. The decision (Soderberg vs. Concord Greene) overturned a summary judgment in favor of a community association, finding that the lower court was too quick to conclude that the association had no potential liability.
The plaintiff in this suit was a unit owner, who fell and broke her hip on an icy patch of a common area walkway. The jury found that while the ice accumulation was “unnatural,” the risk of walking on it should have been obvious to the owner, who failed to use an alternative path to avoid the risk. Following the judge’s instructions, the jury concluded that the plaintiff’s obligation to avoid the open and obvious risk outweighed the association’s obligation to remove it. The Appeals Court disagreed.
“The open and obvious danger rule does not operate to negate a landowner’s duty to remedy hazardous conditions resulting from unnatural accumulations of snow, “the court ruled, “at least where, as here, those hazards lie in a known path of travel.” Evidence that a “reasonable alternative” to the snowy path was available to the plaintiff “should not have precluded a finding that the owner had some liability,” a determination that, the Appeals Court said, should be based on “whether the defendant was negligent, whether that negligence was a proximate cause of the plaintiff’s injuries, [and] whether any negligence of the plaintiff in crossing the snow and ice was a substantial contributing factor.”
An Emerging Trend
While notably at odds with a long string of similar cases in which summary judgment for the owner was virtually automatic, the Massachusetts Appeals Court’s decision is consistent with recent trend in which Massachusetts courts have been imposing more responsibility on owners, including community associations, to be pro-active in eliminating potential hazards from their properties. Viewed as part of that trend, the Soderberg decision sets the stage for the state Supreme Judicial Court to reject the ‘natural accumulation’ theory entirely. A pending case, Papadopoulos v. Target Corp., asks the court to do just that.
The plaintiff in this case (Papadopoulos) was injured when he slipped on a mound of snow in the Target parking lot. A lower court granted summary judgment to the store, finding that snow accumulation was “natural.” In his appeal, Papadopoulos argues that the natural accumulation theory is outmoded, and that Massachusetts should follow other states (including Connecticut, Rhode Island and New Hampshire) in rejecting it. Among other problems, Papadopoulos’ SJC brief argues, the distinction between natural and unnatural snow accumulations creates a perverse incentive for property owners to refrain from clearing snow and ice, because creating an “unnatural” accumulation, by moving snow from one spot to another, increases their liability risks.
“From a liability standpoint, the way the law is in place now in the Commonwealth, it would be more prudent to let nature take its course, however long it may take, and have the snow melt away, rather than attempt snow removal,” the brief argues. The brief also questions the logic behind establishing a higher liability threshold for snow and ice removal than the courts apply to the obligation of owners to remove other hazards.
A Washington state court noted that problem in a 2001 decision (Musci v. Graoch Assocs.) rejecting the “natural accumulation” theory. “We fail to see the rationale for a rule which grants a seasonal exemption from liability to a landlord [in failing to deal with hazards created by the accumulation of snow and ice], but holds him liable on a year-round basis for other types of defect attributable to the workings of mother nature in the very same portions of his property….To draw such a distinction,” the court said, “creates in the law another of those strange anomalies which, once created, live on to haunt successive legal generations.”
A “Sensible” Rule
Defending Target and the “natural accumulation” defense, the opposing brief argues that this legal theory has proven to be “sensible and equitable,” and that eliminating it would impose an “unreasonable” maintenance burden on property owners, putting them at a disadvantage in defending against slip and fall claims.
“One of the sensible reasons for this rule is that in our climate, a number of conditions might exist, which, within a very short time, could cause the formation of ice without fault and without reasonable opportunity to remove it or warn against it or even to ascertain its presence,” the Target brief argues.
Rejecting as “exaggerated and incorrect” the opposing argument¾ that the “natural accumulation” theory encourages owners to avoid removing snow ¾ the Target brief contends that, on the contrary, “from a common sense perspective, a property owner….would lose significant business if it did not take action to clear its parking lot of snow and ice. Customers would simply not shop there.”
While it is hard to predict judicial outcomes, based on the Soderberg decision, and the trend it reflects, the SJC is unlikely to find Target’s arguments persuasive. Among other points: The issue before the court is not whether property owners, like Target, have a financial incentive to remove snow and ice, but the circumstances under which they incur legal liability for failing to do so. The Soderberg decision suggests that, having noticed that New Hampshire (which gets a lot more snow than Massachusetts), has rejected the “natural accumulation” theory, Massachusetts courts are beginning to wonder if they should reconsider it, too.
Focus on “Reasonable” Care
If the SJC rejects this defense, the accumulation of snow and ice will create the same potential liability as cracked sidewalks, broken handrails and poorly-lit parking lots, and require the same standards of “reasonable care.” As a result, community associations and other property owners will lose a legal tool that has insulated them, to some extent, from slip-and-fall liability claims. They will no longer be able to assume, as they have in the past, that they have a good chance of winning early and easy dismissal of many of these claims, if not all of them.
It is also likely that associations will face more slip-and-fall suits going forward. With summary judgment for the association no longer the most likely outcome, plaintiffs’ attorneys may now pursue actions they might have discouraged in the past, knowing that liability determinations will be based not on whether snow accumulations were “natural,” but on whether snow and ice removal efforts were “reasonable.”
With that prospect in mind, association boards will want to make sure the contracts with their snow removal companies clearly describe the community’s expectations, specifying, among other details: The contractor’s response time, number of visits required during a prolonged snowfall, the de-icing treatments to be provided. Snow removal contracts should also include a requirement that the company maintain logs detailing the work performed on site and the time of such work
At the end of the day, the loss of Massachusetts’ slip-and-fall defense won’t require most associations to change their snow removal policies, but it may make them look more closely at the quality of their snow removal efforts and make boards consider whether efforts they have found acceptable in the past will also be deemed “reasonable” by the courts, which will be considering that question in the future.