On July 26, 2010, the Massachusetts Supreme Judicial Court announced its decision in Papadopoulos v. Target Corporation. The case involved a slip and fall accident in the parking lot of the Liberty Tree Mall in 2002 where the plaintiff had tripped on a piece of ice that had frozen to the pavement. Prior to this decision if, the ice or snow on which the plaintiff had tripped was seemed to be a “natural accumulation,” this barred recovery as the defendant was deemed not to be responsible. Landowners in Massachusetts will now be required to exercise reasonable care in clearing their property of snow and ice so that lawful visitors to the property will not injure themselves in a fall.

            The “natural accumulation” rule had its origins in a series of cases decided in the 1880s, when the amount of due care that a landowner owed to a person who visited the property depended on the relationship between the landowner and the visitor and the reason the  visitor was on the property. For example, a landlord had no duty to a tenant to maintain any area of the property that was leased to the tenant, as the lease transferred along with the property the responsibility to maintain the property in a safe manner. The landlord could only be responsible if they failed to disclose the existence of some hidden danger. However, if the person injured was an invitee, which was defined as a person invited onto the property by the landowner for the property owner’s benefit (e.g. a shopper at a store or an employee working at the store) then the landowner had to keep the property in a “reasonably safe condition in view of all the circumstances, including the risk to others, the seriousness of the injury, and the burden of avoiding the risk.” The law also created separate categories and differing burdens of care for licensees (a person who was on the property at the plaintiff’s invitation for “convenience and care”) and trespassers.

            Over the past several decades, the Massachusetts courts, along with most other courts across the country, have rejected the tenant/invitee/licensee/trespasser distinction and the differing burdens of care. Instead the courts have imposed a unified standard of care which most closely resembles the duty of care owed to an invitee. Only adult trespassers do not receive this level of protection. The last remaining vestige of the old rules was the natural accumulation rule. Under this formulation, a property owner could only be found responsible for an injury to a person that occurred on their property that was caused by slipping on the ice or snow if the judge or jury found that the snow or ice was an artificial or unnatural accumulation. The Supreme judicial court pointed out that this rule had several problems. First, all of the other states in New England require that property owners use reasonable care in clearing snow and ice so that visitors do not injure themselves.

Second, it was often very difficult to determine what was and what was not a natural accumulation, as several factors such as the passage of time, the traffic over snow which would compress it and make it uneven and icy, or even efforts to remove the snow could transform the natural accumulation into an unnatural one. Removal efforts, even when done negligently, could in certain circumstances avoid liability even when they “foreseeably increase[d] the risk of mishap....” this was a truly strange result which ran contrary to the rest of tort law.

Third, despite the fact that snow and ice are an “open and obvious” danger, the fact that they are open and obvious is unrelated to whether or not the accumulation is natural or unnatural. Additionally, even though the danger is visible and a visitor can take steps in theory to protect themselves, the court noted that “it is reasonable to expect that a hardy New England visitor would choose to risk crossing the snow or ice rather than turn back or attempt an equally or more perilous walk around it.” Therefore the “open and obvious” rationale does not really support the natural accumulation rule at all.

The court did state that differently types of property owners will have to take different steps to satisfy the reasonable care standard depending on the circumstances that they face. “The snow removal reasonably expected of a property owner will depend on the amount of foot traffic to be anticipated on the property, the magnitude of the risk reasonably feared, and the burden and expense of snow and ice removal. Therefore, while 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.”

Additionally, they court’s decision is given immediate effect, and applies to all cases and claims not yet brought that are not barred by the statute of limitations or by entry of a judgment. That means that the new standard will apply to all cases involving a slip and fall on ice or snow that are currently pending in the state courts plus any new claims that occurred within the last three years.

This decision could impose a greater liability on condominiums to ensure that snow and ice are removed from sidewalks, walkways, building entrances, ect. that are common areas.   Condominiums should take the following steps in response to this decision:

1)      Check with their insurance carrier to ensure that they are carrying both the proper types and amounts of coverage in case of a slip and fall accident that occurs on snow or ice

2)      Ensure that that there are indemnification provisions in the contracts  for snow removal services where the contactor agrees to pay for all accidents caused by the contractors negligence in failing to properly remove of snow and ice

3)      Make sure that the snow removal contractor hired by the condominium has adequate insurance and has name the condominium as a covered party under the policy

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