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Loss of the "Natural Accumulation Defense" for Snow and Ice

In Papadopoulos v. Target Corporation, 457 Mass. 368 (2010), the Massachusetts Supreme Judicial Court overruled 125 years of legal precedent and abolished the defense that natural accumulation of snow and ice was not a defective or unreasonably dangerous condition on a property. Under the long-standing defense, a property owner was not liable for snow and ice still in its natural state that had yet to be changed by human actions, such as walking or driving over it. This decision should lead to landowners, property managers, and snow and ice contractors to review their safety procedures, contractual arrangements, and insurance coverage carefully. First, we should review this landmark case.

The plaintiff slipped on a patch of ice in the parking lot of Liberty Tree Mall in Danvers in front of a Target Department Store on a December morning. The weather was below freezing, but there was no snow or rain. The parking lot had been plowed, but there were scattered areas of snow and of ice. The plaintiff slipped on a patch of ice that had formed either from a chunk of snow that fell from piled snow or from the melting and refreezing of snow from the pile. The trial judge granted summary judgment on the grounds that either condition was a natural accumulation with no liability attached. 

The Appeals Court affirmed, but the SJC reversed. Massachusetts’ courts will no longer analyze whether the snow and ice are natural or unnatural due to some change in its condition to suggest a passage of time. The condition of snow and ice simply becomes one of the factors to weigh in measuring the landowner’s duty to all lawful visitors to use reasonable care to maintain its property in a reasonably safe condition in view of all the circumstances. 

The Supreme Judicial Court commented in this case on another previously popular defense in snow and ice cases, which is known as the “open and obvious” defense. The court emphasized that this defense only limits the landowner’s duty to warn of a dangerous condition that is open and obvious. A property owner is “not relieved from remedying an open and obvious danger where it can and should anticipate that the dangerous condition will cause physical harm to lawful visitors notwithstanding its known or obvious danger.”

The court leaves several glimmers of hope for defendants sued for snow and ice conditions. A person venturing off the walkway and slipping on a snowy area not intended for travel may still be subject to summary judgment. Also, the court noted that it was following the “Connecticut Rule,” and cited a recent Connecticut case holding that a landowner may generally “await the end of a storm and a reasonable time thereafter before removing ice and snow from outside walks and steps.” However, the court emphasized that what constitutes reasonable snow removal for a homeowner will be different from a store owner or a nursing home operator.

To top it off, the new rule applies retrospectively. 

The loss of this traditional defense makes it more important than ever that landowners, property managers, and snow and ice contractors pay close attention to the language of their contracts. Landowners and property managers will want language specifying that the snow and ice contractor is responsible to monitor the conditions of the property and the weather to determine when such conditions require the application of salt. Such language will not insulate the landowner/property manager from potential liability, but it will provide a strong basis, along with appropriate indemnification language, to shift the exposure to the contractor. Contractual language requiring the contractor to name the owner/property manager additional insured is vitally important as well.

Landowners and property managers should also reconsider contractual language allowing the contractor to wait until the storm or precipitation is complete before beginning operations. In the absence of the natural accumulation defense, there is increased risk in this practice, especially since the court has not hinted whether it will adopt Connecticut’s exception for freshly accumulated snow and ice.

On the other hand, snow and ice contractors may wish to avoid the burdens of such language, which places the burden on the contractor to inspect the premises regularly and then decide when salt needs to be applied. If the contractor does agree to such language, they must be vigilant about melting and refreezing conditions, which form the basis of many lawsuits. Without the natural accumulation defense, contractors should also reconsider any practices of waiting until the storm or precipitation is over before beginning clearing and salting operations.

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