In 1975, the Appeals Court in Wexler v. Stanetsky Memorial Chapel of Brookline, Inc., set forth the so-called “transitory water” doctrine. Wexler, 2 Mass. App. Ct. 750, 751-52 (1975). This doctrine prevented business owners from being found liable for certain injuries arising from “the transitory conditions of (the) premises, due to normal use in wet weather.” See id. at 751.
Several years later, in the snow and ice context, the Supreme Judicial Court in Papadopoulos v. Target Corp., 457 Mass. 368 (2010), demonstrably changed the landscape of Massachusetts law. Prior to Papadopoulos, a landowner’s duty to remove snow and ice accumulations depended on whether the accumulation was natural or unnatural. See e.g., Papadopoulos, 457 Mass. at 376-78. Upon revisiting the issue, Papadopoulos abandoned the distinction between natural and unnatural accumulations. Id. at 378.
Instead of the natural/unnatural accumulation distinction, the duty applicable to other hazards would now apply: “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.’” Papadopoulos, 457 Mass. at 383 (quoting Young v. Garwacki, 380 Mass. 162, 169 (1980)). The Papadopoulos court further noted that, “[i]f a property owner knows or reasonably should know of a dangerous condition on its property, whether arising from an accumulation of snow or ice, or rust on a railing, or a discarded banana peel, the property owner owes a duty to lawful visitors to make reasonable efforts to protect lawful visitors against the danger.” Papadopoulos, 457 Mass. at 383 (2010).
In December of 2018, the Superior Court, in Holden v. Wal-Mart Stores East, LP, determined that the Papadopoulos rationale superseded Wexler’s transitory water doctrine. See Holden, 2018 WL 7048233, *1-*2 (Mass. Super. Dec. 10, 2018). There, the Superior Court was faced with a slip and fall incident at a Hanover Wal-Mart. Id. at *1. The plaintiff, Ms. Holden, had gone to Wal-Mart on a rainy February day to shop. Id. As she entered the store, she slipped and fell on the 12 to 18-inch space of tile between the entrance doors and a mat. Id. Wal-Mart made the argument that Wexler’s transitory water doctrine acted to bar Ms. Holden’s claim. Id. However, the Holden court found that Papadopoulos applied and, as a result, the question of “[w]hether Wal-Mart made reasonable efforts to protect plaintiff against the danger is for the jury to determine.” Id. at *1.
It remains to be seen what, if any, impact Holden will ultimately have on the transitory water doctrine as it exists in Massachusetts. However, it could mark the beginning stages of a weakened transitory water doctrine and the rise of a new standard of care.
If you have received notice of a potential claim relating to an injury on your premises in the New England area, we can help.