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Do property owners have a legal obligation to remove snow and ice from their property?

The short answer is yes. All Massachusetts property owners have a duty to use “reasonable care” for the protection of visitors, and are thus legally responsible for the removal of snow and ice from their property. As you may recall, this was not always the case. Prior to the SJC ruling in Papadopoulos v. Target Corp. in July 2010, property owners would only be held liable for injuries resulting from “unnatural accumulation” of snow. If an owner chose not to clear snow and ice from the sidewalk or parking lot, it was a valid defense that the injury was caused by nature, i.e. by a natural accumulation of snow and ice, not by the negligence of the owner.

The Papadopoulos case changed the antiquated rule to expand the duty of property owners to remove snow and ice from their property. In December 2002, Papadopoulos slipped and fell on a patch of ice in a Target parking lot, which had been plowed almost clearly, with much of the snow moved to the medians. He slipped on a piece of ice that had frozen to the pavement. The ice had either fallen from the snow piled on the median or had formed when snow melted and ran off the pile and then refroze to the pavement of the parking lot. Papadopoulos sued both Target and the snow removal company.

The Superior Court held that the ice had been a “natural accumulation,” which, as a matter of Massachusetts law, barred him from prevailing on his negligence claims. On appeal, the SJC eliminated the “natural accumulation” defense, allowing Papadopoulos to prevail on the claim that the property owner failed to use reasonable care, and which failure caused the injuries.

The Court did not set a “bright line” test to explain how much time an owner has to act, nor did it indicate the effect of the temperature range, nor did it state at what depth the snow must reach before any action is required. Whether the property is a single family home, apartment building or shopping area, each case will depend on its own facts to determine whether the owner acted reasonably.

Among the steps that every property owner should take are to: (1) review insurance policies to be sure that there is adequate coverage; (2) determine whether contractors or others hired to remove snow and ice have insurance; and (3) be vigilant when there is newly fallen snow or when temperatures allow melting and refreezing. If complete clearing is not possible, warning signs may be appropriate. If your clients have questions regarding their duty to clear snow, they should consult with their attorney.

Is your client who owns a multi-family correct when he insists that he has no responsibility for removal of snow except for clearing the sidewalks as required by municipal ordinance.

The short answer is no. The landlord is responsible for removing snow on the property. Many landlords attempt to pass this responsibility onto their tenants by writing a provision into their leases; however, this practice may not protect the landlord from liability.

The Massachusetts sanitary code provides that the “owner shall maintain all means of egress in a safe, operable condition” and that all “exterior stairways, fire escapes, and egress balcony, shall be kept free of snow and ice.” Massachusetts law also provides that any provision in a rental agreement that waives the protections given by the sanitary code is void, as it is against public policy. Taken together it would appear that the landlord cannot assign this responsibility in a lease. However, the law is unclear on the matter.

The sanitary code does not cover driveways or sidewalks; therefore, logic would suggest these could be assigned into a lease. If a landlord decides to form a side agreement with a tenant to compensate them for snow and ice removal they should carry workers’ compensation insurance as these tenants are now employees of the landlord. As always, if your clients have questions regarding their duty to clear snow, they should consult with their attorney.

 

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