Snow & Ice: How to Avoid a Slippery Legal Slope
By Ellen Shapiro, Esq.
The winter has been relatively mild so far, but March has roared in like a lion, and we’re not out of the woods yet. It can be a slippery slope if we’re not prepared—especially in light of a Massachusetts Supreme Court decision regarding snow removal.
In the past, plaintiffs who suffered injuries as a result of falling on snow and ice had to establish that the snow and ice on the ground were an “unnatural accumulation.” Without that element of proof, a plaintiff was barred from obtaining a judgment. However, in a landmark case, Papadopoulos v. Target Corporation, the court eliminated any distinction between natural and unnatural accumulations of snow and held that landowners now must exercise “reasonable care” in clearing their property of snow and ice so that lawful visitors to the property will not sustain an injury.
What is Reasonable Care?
While the court said different types of property owners will have to take different steps to satisfy the “reasonable care” standard, the decision didn’t state exactly what steps will meet this standard. Rather, the court held it is a duty to “act as a reasonable person, under all of the circumstances, including the likelihood of injury to others, the probable seriousness of such injuries, and the burden of reducing or avoiding the risk.” These factors will determine what snow and ice removal efforts are reasonable in light of the expense they impose on the landowner and the probability and seriousness of the foreseeable harm to others.
The court further held that the duty of reasonable care does not make a property owner an insurer of its property; nor does it impose unreasonable maintenance burdens. The snow removal reasonably expected of a property owner will depend on:
- The amount of foot traffic anticipated on the property.
- The magnitude of the risk reasonably feared.
- The burden and expense of snow and ice removal.
Therefore, while an owner of a single-family home, apartment, store, or nursing home owes lawful visitors to their property a duty of reasonable care, what constitutes reasonable snow removal may vary among them.”
What Does this Mean to Condo Associations?
In response to this new development, we urge condo associations to address the following before it’s too late:
- Since we can expect an increase in litigation resulting from these slips and falls. it is important to review insurance policies to ensure sufficient coverage, should claims be made against the association.
- Associations that decided to cut costs by not providing sand or chemicals for common areas, leaving that responsibility to the individual unit owners, should reconsider this policy since the governing Boards are in fact responsible for these areas.
- All snow removal vendors should have sufficient insurance to protect the association in the event of a claim.
- All contracts with snow removal vendors should be carefully reviewed to make sure there is an appropriate indemnification provision to protect the association.
- Since ice can melt and refreeze, we need to pay attention throughout the day to ensure that slippery conditions do not occur in areas where people “lawfully on the property” would have a tendency to walk or even drive.
Looking ahead, we can definitely expect snow and icy conditions—followed by lawsuits brought by injured plaintiffs. The bottom line is that snow and ice now present dangerous conditions in much the same way as defects on the premises … and will be treated as such by courts. So, plan to put safeguards in place now, before the next snow storm arrives.
As always, please don’t hesitate to contact us if you wish to discuss this or other legal matters.