If you are a property owner, don’t delay getting your shovels out this winter. Property owners are now obligated to take reasonable steps to keep their properties free of snow and ice, no matter the source.
Since 1883, Massachusetts courts have consistently held that a property owner is only liable in negligence for failing to remove “unnatural” accumulations of snow and ice and cannot be held liable if someone is injured walking on newly fallen or “natural” snow (the so-called “natural accumulation rule”). Generally, accumulations of snow and ice are considered natural when there is no human interference, such as newly falled snow collecting on sidewalks and roads. Typically, an accumulation of snow or ice is considered unnatural if it is re-directed or impacted by human intervention such as a bank of snow moved onto the sidewalk by a passing snow plow, a patch of ice caused by a misdirected gutter, or days old snow that has been compacted and melted from footprints.
In Papadopoulos v. Target Corporation, a landmark decision announced by the Supreme Judicial Court in July 2010, the Court abolished the distinction between natural and unnatural accumulations of snow and ice. In doing so, the Court ruled that the traditional policy justifications for the natural accumulation rule are no longer relevant. For example, the Court rejected the notion that snow is an open and obvious danger which relieves the property owner from a duty to warn lawful visitors about dangerous accumulations of snow and ice. Also, the Court found problems in enforcing an affirmative duty to remove natural accumulations of snow and ice. They suggested that the natural accumulation rule is outdated since we now rely on modern snow removal technology (e.g. plows, snow blowers, ice melt etc.) which eases the burden of keeping property reasonably free of snow and ice. Finally, the Court found that the trial courts have struggled to apply the natural accumulation rule as it creates inconsistencies in the case law. For example, there might be a mound of snow which contains both natural fallen snow and unnatural accumulated snow – say pushed by plow. If an individual slipped and fell on the portion of the mound of snow which was not disturbed by the plow, the landowner would ordinarily not be liable for the person’s injuries. However, if someone slipped and fell on the portion of the mound that had been altered by the plow, the landowner may be held liable for the injuries.
After Papadopoulos, property owners in Massachusetts have a duty to keep their property reasonably free from all accumulations of snow and ice. The change in the law seemingly opens the door for more lawsuits against property owners for injuries caused by accumulated snow and ice. If you are a landowner, it is time to stock up on shovels, sand, and salt. It is also important to secure a solid agreement with your snow removal contractor, containing effective indemnity and hold-harmless provisions. Finally, a review of your property insurance coverage, in addition to evaluating the terms of your snow removal designee’s insurance, is an integral part of a sound risk assessment in light of this new rule. The bottom line is that it is up to land owners to ‘act reasonably’ in timely and effectively clearing snow and ice – whether such dangers appear naturally or through human intervention.
