Condo Media - November 2010 - 13

MASSACHUSETTS

by Andrew S. Brooslin, Esq.

C A I

A New Standard in Massachusetts
Snow, Ice and the Duty of Reasonable Care

R e g i o n a l

he recent Supreme Judicial Court decision in the matter of Papadopolous v. Target Corporation forever altered premises liability law in Massachusetts by eliminating the long-standing distinction between natural and unnatural accumulations of snow and ice. The new standard of care in Massachusetts for maintaining snow- and ice-covered common areas is that of reasonable care. An association will be liable to a lawful resident or visitor who sustains an injury due to a natural or unnatural accumulation of snow and ice, if it fails to use reasonable care in keeping the premises safe. The new standard is a concern to all associations as well as their lawyers and insurers because it creates a new avenue of liability that didn’t previously exist. However, the natural accumulation defense was an exception to the duty of care owed by an association to lawful residents and visitors. Condominium associations in Massachusetts have always been required to use reasonable care in maintaining the common areas and keeping them free from dangerous conditions and defects. The Papadopolous decision means that naturally accumulated snow and ice can now be considered a defective or dangerous condition (much like a broken stair tread or burned out light bulbs in a stairway) that can be grounds for liability if an association fails to use reasonable care to protect lawful residents and visitors against the danger presented by the condition.

Limiting Potential Liability
The theoretical legal arguments concerning the change in the law and

the change in litigation practice are likely of little value to most associations. An association’s insurance policy will likely provide a defense as well as indemnification (that is insurance coverage up to the limits of the policy) for most injuries caused by a fall on snow and ice. Thus, once a lawsuit is brought, the case really rests in the hands of the attorneys and insurance companies. The question most associations want answered is: “What do we do now to limit our potential liability?” Most, if not all, associations have a snow and ice removal plan in place. The issue: Is the plan sufficient to meet the reasonable care standard? At this time, we do not have a clear sense of what constitutes reasonable care as it relates to the removal of snow and ice. That will develop over time as cases make their way through the trial and appeals courts. The courts will likely look to the other New England states (all of whom have been using the reasonable care standard for snow and ice cases for decades) in an effort to gain some sense as to what constitutes sufficient snow and ice removal to meet the reasonable care standard. A review of decisions from other states (as well as existing Massachusetts premises liability law) reminds us that the law does not require perfection. The standard is reasonable care under the circumstances. Thus, it is likely unnecessary to have an idling plow sitting in the parking lot waiting for the snow to fall and accumulate. A more reasonable option (both in terms of cost and liability) is a plowing agreement whereby the contractor agrees to pass through every two hours once the snow accumulates to a pre-selected depth.

Similarly, it is not necessary to have an army of shovelers and salters deployed throughout the entire course of the storm to ensure the snow never accumulates. A more reasonable method is to ensure that no more than two inches of snow accumulates, while also salting at regular intervals and at those times when the temperature normally drops in order to fight the melting and refreezing cycle. Reasonable care also might entail making certain that the salt or sand buckets on the premises are regularly filled so residents and visitors can spread the materials. Plaintiffs in personal injury cases often claim the sand buckets were empty; had they been filled, the accident could have been prevented because the injured party would have spread the sand before walking down the pathway. Without an established schedule, it is often difficult to establish that the buckets were filled or inspected prior to the accident. Creating a schedule for inspecting and filling the sand or salt buckets will aid in demonstrating reasonable care. Associations should take the time before winter comes to review their snow removal policies, procedures and budgets with their contractors. Setting up time intervals and triggering events for snow removal and salting/sanding is a good way to take preventative action. You may not be able to eliminate every hazard posed by snow and ice but reducing the hazards and taking reasonable care to ensure the premises are safe will go a long way toward reducing the risk and cost of litigation. CM Andrew S. Brooslin, Esq. is an associate with the law firm of Marcus, Errico, Emmer & Brooks PC in Braintree, Mass.

N e w s

CONDO MEDIA • NOVEMBER 2010

Condo Media - November 2010

Table of Contents for the Digital Edition of Condo Media - November 2010