What You Should Know About Accumulation of Snow and Ice

By: Howard S. Goldman

What is the winter forecast for this year?

According to the managing editor of the Farmer’s Almanac, “New England and Massachusetts are going to have a very stormy and snowy winter on tap.”  As we approach the upcoming New England Winter, it is important for business and property owners alike to keep abreast of the latest developments and trends in Massachusetts law to minimize the exposure to litigation from, primarily, slip and fall accidents from snow accumulation.  This Client Update
discusses the recent and major changes in Massachusetts law on the duty of care of a business/property owner regarding snow and ice removal.  It also provides a few pragmatic recommendations for a carefully worded Snow Removal Maintenance Agreement that can minimize legal exposure.

Change in Massachusetts Law and Duty of Care

 The traditional Massachusetts legal distinction with natural and unnatural accumulation snow and ice was recently abolished Massachusetts highest court.  In the past, business/property owners were not negligent if they failed to remove a natural accumulation of ice and snow, and were negligent if they failed to remove an unnatural accumulation of ice and snow. This however changed with a recent decision from the Massachusetts highest court.

In the recent Supreme Judicial Court decision of Papadopoulos v. Target Corporation, (2010), the state’s high Court abolished the distinction between natural and unnatural accumulation of snow and ice, and applied to all hazards arising from snow and ice the same obligation of reasonable care that a property owner owes to lawful visitors regarding all hazards.  In Target, the plaintiff, on his way back to his car after the purchase, slipped on a piece of ice that had frozen to the pavement.  The ice on which plaintiff tripped either had fallen from the snow piled on the road median or had formed when snow melted and ran off the snow pile stacked by the snow plower, and then re-froze to the parking lot pavement.  The Supreme Judicial Court in Target, in discarding the distinction between natural and unnatural accumulations of snow and ice, stated that such distinction was an exception to the general rule of premises liability that a property owner owes a duty to all lawful visitors to use reasonable care to maintain its property in a reasonably safe condition in view of all of the circumstances.

 A business/property owner can no longer rely upon the past explanation defense that a snow or ice condition was open or obvious and that warning signs were duly posted.   Now, there is a clear duty and obligation to act as a reasonable person to maintain the property in a reasonably safe condition balanced with relevant circumstances such as:

• – likelihood of injury to others;
• – probable seriousness of such injuries;
• – burden of reducing or avoiding the risk, such as cost to landowner;
• – landowner is not an insurer of its property;
• – nor does the case impose unreasonable maintenance burdens;
• – amount of anticipated foot traffic;
• – adequate maintenance and preventative procedures, including operating gutters and downspouts, and
• – walkways, parking lot access ways or dumpsters cleared and not blocked by snow or ice;

The Supreme Judicial Court also noted that the snow removal expected of a property owner will depend upon the circumstances. “[W]hile an owner of a single family home, an apartment house owner, a store owner, and a nursing home operator each owe lawful visitors to their property a duty of reasonable care, what constitutes reasonable snow removal may vary among them.”

Contractual Protection

             A properly worded Snow Removal Maintenance Agreement  with a snow removal company that is adequately insured can go a long way to minimizing the risk of exposure to property owners.  Your Snow Removal Agreement should touch upon the following areas:

• – make sure the snow removal company has adequate liability insurance and names  the property owner as an additional insured;
• – stake the entire property to designate limits to paved areas including driveways, sidewalks, fire alarm stations and mailboxes;
• – designate the number, location and maintenance of sandboxes;
•  – set automatic contractual triggers requiring the snow removal contractor to respond within a specified time frame (i.e. must plow within a half hour of .5 inches of snow)
•  – require the snow removal company to keep accurate and detailed records of the snow and ice removal to establish the reasonableness of their efforts (i.e. when and where salt was applied, when the parking lot was plowed, when the sidewalks were shoveled and how and what treatment was done after the initial sanding, plowing and shoveling);
• – mandate that there must be sanding or salt under all slippery conditions;
• – clearly identify what constitutes a storm that requires mitigation measures;
• – set limits to the height of permissible snow banks;
•  – set clear standards upon which a snow removal contractor’s performance can be measured and provide provisions for termination if those standards are not met;
• – include a provision requiring immediate notification if the snow removal contractor cannot perform and make them liable for the cost of any substitute snow removal service;
•  – make sure the snow removal contract is consistent with your city or town’s local ordinances (i.e. many cites such as Boston, Lynn, and Worcester have snow removal ordinances which have certain requirements such as cleaning municipal sidewalks in front of a business or residence);
•  – include a hold harmless clause that tracks the same language in the Target case, meaning that the snow removal company will indemnify and hold the property owner and/or the property manager harmless for any liability arising from the  failure of the snow removal contractor’s failure to use reasonable care to maintain  the property in a reasonably safe condition from snow and ice accumulation.

  Summary

            Therefore, while an owner of a business, a single family home, large condominium, a store owner, and a nursing home operator each owe lawful visitors to their property a duty of reasonable care to keep its property reasonably safe, what constitutes reasonable snow removal will vary among them.  You cannot prevent people from suing once they slip and fall on your property.  However, if you follow the steps set forth above, you should be able to mount a successful defense by proving that the accident was caused by neither negligence nor a breach of a contractual duty, and make sure all claims are timely reported, in writing, to your insurance agent.

 About the Author

Attorney Howard S. Goldman is the founding partner of the law firm of Goldman & Pease LLC, 160 Gould Street, Needham, Massachusetts 02494 (781) 292-1080.  Mr. Goldman concentrates his practice in the areas of corporate and real estate law, and civil litigation, where he represents business owners, property managers, developers and contractors for over twenty-seven years. He is an active member of the Massachusetts, Norfolk, and Rhode Island Bar Associations in his field and is also an active member of CAI and IREM, where he frequently lectures and writes