The Prizblog

The following is not intended as legal advice and should not be taken as such.  You should seek the advice of counsel should you have any questions regarding any of the topics discussed herein.  These are strictly the opinions of the author after half a bottle of red wine.

Since the Newton Board of Aldermen’s Public Facilities Committee began floating their proposed snow shoveling ordinance recently, more questions than answers have arisen as to exactly what a snow shoveling ordinance would mean for Newton homeowners.  Not only with regard to actual snow removal, but with regard to liability.  Many have wondered aloud:  Will this ordinance mean that I’m now liable for the snow that accumulates on my sidewalk?  Has recent Massachusetts case law mandated that I shovel my sidewalk regardless of this ordinance?  What are my responsibilities as a property owner going forward?

Unfortunately, the snow shoveling ordinance has become a political issue, and it has become difficult to get clear answers to what seem to be straight-forward questions.  The following is an attempt to clear up several misconceptions that I have heard not only in the community, but also from members of the Board of Aldermen, and from the city solicitor’s office.

This confusion does no one any good.  If this ordinance passes – and I support it – it should pass without exaggerating the effects of recent case law surrounding snow and ice liability in Massachusetts.  There are many good reasons to pass such an ordinance.  Not hitting school children with your car as you drive to work after a snowstorm when the little buggers are walking in the street has to top the list, right?

You’d think so, but that rational doesn’t seem to be enough.  Many proponents of the ordinance point to recent Massachusetts case law, namely Papadopoulos v. Target Corp., which has altered long-standing theories of liability with regard to snow and ice liability. On more than one occasion in that past two months, I have heard members of the Warren administration, the League of Women Voters, and members of Newton Safe Sidewalks, assert that Papadopoulos stands for the proposition that property owners may now be liable for snow and ice accumulation on abutting sidewalks.  And if these unsuspecting property owners don’t shovel their sidewalks, they’ll soon find themselves staring across the courtroom at a scary guy like me – the dreaded plaintiff’s lawyer!

The confusion doesn’t stop there.  I have also heard an opposite theory about the resultant liability of passing this ordinance. Namely, that once Newton homeowners are forced to shovel their sidewalks, they will become liable for anyone that slips and falls if they don’t do a thorough enough job.

Neither theory has any basis in fact, or any case law to support it.  Unfortunately, the city solicitor’s office has, in my opinion, done a terrible job of clearing up these misconceptions, and may actually be adding to the confusion. 

Massachusetts case law is relatively straightforward on this issue.  The holding in Papadopoulos was that a property owner has a duty to keep his property reasonably safe for lawful visitors regardless of the source of the danger, whether that danger is snow, ice, or an errant banana peel.  It abolished a former distinction in Massachusetts case law between natural and unnatural accumulations of snow and ice for liability purposes.  This actually helped to clear things up, not add to the confusion.  Do you know what an “unnatural accumulation of snow or ice” is?  Me neither.  Papadopoulos is completely silent as to a property owner’s responsibility for abutting public property.

Massachusetts case law is also fairly clear on the liability of the property owner for snow and ice removal to third party pedestrians where the property owner lives in a municipality that has a snow removal ordinance.  Massachusetts courts have repeatedly found that a snow shoveling ordinance does not inure liability to the homeowner for slips on an abutting sidewalk by the unfortunate passerby.

Still confused?  I don’t blame you.  I think I can help explain.  First, let’s talk about snow and ice liability as of this past winter, and what has changed since Papadopoulos.  Then we’ll tackle the snow shoveling ordinance. 

The Old Rule

When I was an insurance defense associate, you couldn’t possibly hear it enough: there is no liability in Massachusetts for the natural accumulation of snow and ice.  And, let’s face it, since 99% of all snow or ice slip and falls result from natural accumulations of snow or ice, the so-called Massachusetts rule was a blessing to insurance defense guys all over the state.

And it was convenient for property owners, too.  You had absolutely no duty whatsoever to clear snow off your property after a storm.  Hey, it’s New England!  It snows here!  Deal with it!  Never mind the fact that the mail man has to scale your treacherous Comm. Ave, Wall-of-Mordor stairs to deliver your Frederick’s of Hollywood catalogue while you down another Stella Artois after yet another New England ice storm.  Thems the breaks.

The “Massachusetts Rule” declaring that no liability extends to natural accumulations of snow or ice had its origins in 19^th century premises liability law.   Nearly 200 years ago, a landowner’s obligation to those who visited the property depended on the status of the visitor.  Were you a guest?  A trespasser?  An invitee?  A landlord had a duty to the tenant to only remove defects from property that he had “put there”, but not defects that occurred “naturally.” As years went by, the common law shifted to something a little more… humane.  With the exception of trespassers, all lawful visitors to a property are now treated similarly, and a landowner owes a duty to keep his property reasonably safe for lawful visitors regardless of the source of the danger.

Except for one thing.  The “natural” defect rule in Massachusetts case law remained with regard only to snow and ice, although seemingly for reasons that defy explanation (for an excellent, but probably pretty boring to a layperson, explanation of the history of the Massachusetts rule, read the Papadopoulos decision.)

Although the Massachusetts Rule was convenient for property owners, it was exceedingly difficult to apply in practice.  What, exactly, is an “unnatural” accumulation of ice or snow?  Repeatedly, I saw plaintiff’s lawyers try to argue that the act of shoveling snow had somehow turned “natural” snow into “unnatural” ice.  And of course this is all counter-productive since you want people to shovel to remove snow and ice so that people don’t slip and fall to begin with. 

Finally, in Papadopoulos, the Massachusetts Supreme Judicial Court had enough and did away with the “Massachusetts Rule” altogether, bringing Massachusetts in line with the rest of New England, and most of the rest of the country.

What Did Papadopoulos Do?

It’s all pretty simple, really.  Papadopoulos turned snow into the proverbial banana peel.   Today, the exact same rules that apply to any other defect on your property now apply to snow.  What’s so hard about that?  Imagine for a moment, you dump a pile of banana peels onto your walkway, and someone comes to visit you and slips and falls and hurts themselves on the peels.  You’re in some trouble. 

Imagine for a moment, however, if banana peels magically fall from the sky onto your sidewalk.  Do you have any liability for those peels?  No.  Why? You’re not in control of your sidewalk.  It’s not your property.  You didn’t put the peels there.

Easy, right?

You know what Papadopoulos didn’t do?  It didn’t make you responsible for the sidewalk in front of your property.  There are 6,189 words in the Papadopoulos decision.  The word “sidewalk” is mentioned zero times.

In Papadopoulos, the Plaintiff was injured when he slipped and fell on a patch of ice in the parking lot of the Liberty Tree Mall in Davnvers, Massachusetts.  He filed suit in the Superior Court against the Defendant, Target Corp., which controlled the area of the parking lot in which the Plaintiff fell.  The Plaintiff lost in the lower Courts, but was vindicated when the SJC took his appeal and abolished the long standing Massachusetts rule adhering to the distinction between liability for natural and unnatural accumulations of snow and ice. 

Papadopoulos stands for the proposition that a property owner has a duty to keep his property reasonably safe, regardless of whether the threat to that safety comes from “natural” snow or otherwise.  It stands for the proposition that the “Massachusetts rule” was unworkable, and a relic of days gone by.  It stands for the proposition that “if a property owner knows or should know of a danger on its property, whether arising from accumulation of snow or ice, rust on a railing, or a discarded banana peel, [that] the property owner owes a duty to lawful visitors to make reasonable efforts to protect lawful visitors against dangers.”  See Papadopoulos v. Target Corp., 457 Mass. 368, 383 (2010)(emphasis added).

But wait, you say.  This is New England.  It snows here all the time.  Or, at least it used to.  Is liability really practical in snow and ice cases?  Well, the SJC considered and rejected that argument, noting that abolishing the “Massachusetts rule” actually brings us in line with each and every other New England state.  The SJC even quoted the Supreme Court of Rhode Island in its decision.

“We believe that today a landlord, armed with an ample supply of salt, sand, scrapers, shovels and even perhaps a snow blower, can acquit himself quite admirably as he takes to the common passageways to do battle with the fallen snow, the sun-melted snow now turned to ice, or the frozen rain. We fail to see the rationale for a rule which grants a seasonal exemption from liability to a landlord because he has failed to take adequate precautions against the hazards that can arise from the presence of unshoveled snow or unsanded or salt-free ice found in the areas of his responsibility but yet hold him liable on a year round basis for other types of defects attributable to the workings of mother nature in the very same portions of his property.”

Fuller v. Housing Auth. of Providence, 108 R.I. 770, 773 (1971)(Emphasis added).

Bottom line?  According to Papadopoulos, you have to go out and shovel your property in a reasonable manner.  The key words in that last sentence?  Your property.

Liability Under the Snow Shoveling Ordinance?

Now that we’ve established that Papadopoulos has not created liability on behalf of the homeowner for their sidewalk, we can address the next

question: Will a snow removal ordinance itself create that liability?

Simple answer?  No.

This question was actually addressed years ago in a case called Gamere v. 236 Commonwealth Avenue Condominium Association, 19 Mass.App.Ct.359 (1985).  In that case, Gamere, the plaintiff/pedestrian, was walking along Comm. Ave in Boston in front of a property owned by the Defendant.  It was cold, dark, icy, and the city of Boston happened to have a snow removal ordinance in effect.  Wouldn’t you know it, Gamere slipped, fell, broke his ankle, and sued the City and the abutting property owner for damages.  He claimed that the property owner had an obligation to clear the snow and ice under the ordinance, and as a result of their failure to do so, he suffered his injuries.

Not only did the court disagree, but it forbade Gamere from even introducing the ordinance into evidence. 

“Generally, a violation of a statute or ordinance is some evidence of negligence as to all the consequences it was intended to prevent, where its violation caused or contributed to the injury.” Gamere, 19 Mass. App. Ct. at 361.  “But it has been held that ordinances which require householders to remove snow and ice from sidewalks are for the benefit of the community at large, and not for persons who fall as a result of snow and ice. Any obligation imposed by the ordinance runs to the municipality and not to a member of the travelling public.  Id. at 362 (citations omitted).

In other words, if you don’t shovel your sidewalk and run afoul of the ordinance, the only one who has a beef with you is the City, not the guy who falls on his backside in front of your place.  In order to have negligence, you need a duty and a breach of that duty.  Your duty under the ordinance runs to the City, not to the passer by.

This issue was addressed again in a case called Goulart v. Canton Housing Authority, 57 Mass.App.Ct. 440 (2003).  In Goulart, the plaintiff was a visiting nurse who, in the course of treating a patient at a property owned by the defendant municipal housing authority, slipped and fell on icy stairs.  She brought suit complaining that the city’s application of salt had turned natural ice into unnatural ice, that the ice had been there so long that the city should have done something more about it, and that the city had violated its own snow removal ordinance.

Here, it’s best to let the Court speak for itself:

“The plaintiff argues that applying salt changed the condition of naturally accumulated snow and ice so as to create a hazardous unnatural accumulation. This is a relatively novel theory, especially since in jurisdictions where reasonable efforts must be taken to remove the hazards posed by snow and ice, the usual suggestion is that a defendant might be negligent not for applying salt, but for failing to apply it. See, e.g., Christianson v. Kramer, 255 Iowa 239, 246, 122 N.W.2d 283 (1963); Raff v. Acme Mkts., Inc., 247 Md. 591, 598, 233 A.2d 786 (1967); Maxwell v. Lewis, 186 Neb. 722, 186 N.W.2d 119 (1971); Filipiak v. Plombon, 15 Wis.2d 484, 488, 113 N.W.2d 365 (1962).

In Massachusetts, it is clear that not every human act or failure to act-not even those which that foreseeably increase the risk of mishap-transforms a natural accumulation of snow and ice into an unnatural one, so as to permit a finding of liability. For example, piling snow uphill of a walkway onto which it then melts and refreezes is not grounds for a finding of negligence in Massachusetts. See Cooper v. Braver, Healey & Co., 320 Mass. 138, 139-140, 67 N.E.2d 657 (1946). Neither is incomplete shoveling that removes snow but thereby exposes a thin layer of ice covering a ramp. See Sullivan v. Brookline, 416 Mass. at 828 & n. 2, 626 N.E.2d 870. Given that landowners who engage in these activities have been insulated from liability, we cannot rule that those who salt should be subjected to it.

Our conclusion finds general support in the few jurisdictions that have addressed whether applying salt can open landowners to liability for negligence: in Illinois and Michigan, defendants may not be held liable for salting, see Harkins v. System Parking, Inc., 186 Ill.App.3d 869, 872-873, 134 Ill.Dec. 575, 542 N.E.2d 921 (1989); Zielinski v. Szokola, 167 Mich.App. 611, 621, 423 N.W.2d 289 (1988), overruled on other grounds by Robinson v. Detroit, 231 Mich.App. 361, 586 N.W.2d 116 (1998), although in Delaware, a jury could find salting negligent if unreasonable in the circumstances, see Robelen Piano Co. v. DiFonzo, 53 Del. 346, 354-355, 169 A.2d 240 (1961). As explained by the Court of Appeals of Michigan, “[w]e do not view the application of salt to an icy surface as the introduction of a new hazard … Salting does not create a hazard, instead it only alleviates, albeit temporarily, a hazard that already existed. For this reason, liability should not attach merely because the powerful forces of nature reassert themselves and a salted surface refreezes.” Zielinski v. Szokola, supra. See generally Riccitelli v. Sternfeld, 349 Ill.App. 63, 67, 109 N.E.2d 921 (1952) (“In one sense, a dangerous situation is created, but much less dangerous than would be created if no one undertook to do anything…. The general assumption is that the industry displayed by citizens removing snow after a snowfall is desirable, if not necessary”). We are persuaded that the rationale of the Michigan and Illinois cases is most compatible with Massachusetts doctrine.

 The plaintiff’s other contention is that the defendant’s written snow removal policy provides an independent basis for liability. Assuming, without deciding, that the language of the policy required that the ice be cleared from the landing at issue, this argument still fails. Violation of an ordinance requiring that walks be cleared of snow and ice does not create a duty in a plaintiff where one does not exist independently.”

Goulart v. Canton Hous. Auth., 57 Mass. App. Ct. 440, 442-44, 783 N.E.2d 864, 867-68 (Mass. App. Ct. 2003)

The Goulart case is significant in three respects. First, it seems to entirely refute the proposition that a violation of an ordinance would inure any liability on the homeowner.  Second, it stands for the common sense proposition that the act of removing snow, even if you’re doing it badly, is not going to make you liable if someone slips and falls.  Finally, it shows that Massachusetts courts are again looking to precedent from other states to determine what ought to be considered reasonable in Massachusetts.  Massachusetts is not, as the solicitor’s office would have you believe, unpredictable.  Quite the opposite.  We are now in line with other jurisdictions repeatedly cited by the courts.

Some might suggest that the Goulart court was merely asserting that shoveling does not, in and of itself, turn natural accumulations into unnatural accumulations, and that the Court might find differently today.

Perhaps.  But I don’t find that logic persuasive.  The Goulart Court, as well as the Papadopoulos Court, went out of their way to reference standards from other jurisdictions that do not punish property owners for attempting to remove snow and ice dangers.  And remember, the Goulart court was considering the presence of liability in an instance where there was alleged to be an unnatural accumulation of snow or ice, which then carried with it the same liability as any presence of snow or ice does today.

Conclusion

You can never predict which way the law is going to go.  The common law is always shifting.  However, it appears very safe to say that Papadopoulos does not stand for the proposition that homeowners are now liable for the accumulation of snow or ice on their sidewalks.  It also appears exceedingly unlikely, based on Massachusetts precedent, that a snow shoveling ordinance will inure liability to homeowners for third party passersby.

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Author’s note:  Correction made to the last paragraph, third sentence, striking the work “properties” in favor of the word “sidewalks.”  Thank you to the astute reader who brought this to my attention.  2/11/11