SHUMWAY, GIGUERE &  FOX, P.C.
ATTORNEYS AT LAW
A WINNING TRADITION

Issues in Risk Management

Snow and Ice


 

 

On July 26, 2010, the Commonwealth’s highest court undid 127 years of case law which had theretofore established the boundaries of a landowner’s duty to remove snow and ice.  In addition, the new rule announced in Papadopoulos v. Target Corp., 457 Mass. 368 (2010) was given retroactive effect.  Because this change will have significant implications for your operations and maintenance functions, it is important to understand where we have been, as well as the new legal landscape with which we must cope. To that end, the following is a brief discussion of this recent shift in snow and ice maintenance law.

As Mark Twain once observed about the climate in New England, “If you don’t like the weather, wait a minute.”  Winter brings with it all manner of diabolical environmental conditions, including sleet, freezing rain, black ice, and Nor'easters, often capriciously morphing from one event to another.  The challenges faced in providing a safe experience for guests moving about at the venue in this climate have never been easy, but until now, landowners were protected from liability arising from accidents associated with naturally occurring snow and ice.

Until Papadopoulos, Massachusetts property owners owed no duty to remove natural accumulations of snow and ice.  Instead, a claimant was required to show that the condition which caused the accident was an “unnatural accumulation”.  For example, large ruts in the snow created by tire tracks and footprints frozen in ice in a parking lot could constitute an unnatural accumulation that could form the basis for liability.

In abolishing the distinction between natural and unnatural accumulations, the Supreme Judicial Court held:

“We now will apply to hazards arising from snow and ice the same obligation that a property owner owes to lawful visitors as to all other hazards: 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.”

“If 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.”

“Under this traditional premises liability standard, a fact finder will determine what snow and ice removal efforts are reasonable in light of the expense they impose on the landowner and the probability and seriousness of the foreseeable harm to others. The duty of reasonable care does not make a property owner an insurer of its property; "nor does it impose unreasonable maintenance burdens." The snow removal reasonably expected of a property owner will depend on the amount of foot traffic to be anticipated on the property, the magnitude of the risk reasonably feared, and the burden and expense of snow and ice removal. Therefore, while an owner of a single-family home, an apartment house owner, a store owner, and a nursing home operator each owe lawful visitors to their property a duty of reasonable care, what constitutes reasonable snow removal may vary among them.(emphasis supplied).

 

The key element of this holding, from the standpoint of the sports and entertainment industry, is the highlighted sentence.  Each case will be evaluated through the lens of proportionality, viz., what is the magnitude of the risk as measured by the number of people likely to be exposed, the resources available for the snow fighting effort, and the availability of alternative means of travel to, from and within the property.  The duty to remove snow and ice imposed upon a recluse living at the end of a cul de sac, who receives few visitors, will be far less burdensome than that required of an open air stadium with parking and seating capacities in the tens of thousands.

Shumway, Giguere & Fox, PC has acquired solid experience over the years in defending against snow and ice claims, including the transition to the new “reasonable care” rule, and the following measures are recommended in order to manage your risk profile.

  •  Because the quality and quantity of the snow fighting response will now play a central role in determining whether reasonable care was exercised, it is important to document as much as possible.  If you monitor one or more weather reporting services, document the forecasting, to show that planning for mobilization of assets was reasonable, document snow fighting equipment resources  / order of battle actually mobilized, and maintain relevant records in accordance with existing records retention policies, or for at least three years post storm event.
  • To the extent public safety officials are involved in planning, also document this fact, and especially, where decision making is exclusively the province of public safety, which often is the case as a condition of issuance of the event license from local municipality.  It is also critical to document numbers of all police, fire, rescue, ambulance, first aid staffing, and guest services personnel on hand for the event.
  • Document the time when the storm has ended at your location, as weather reporting stations even a few miles distant can produce widely differing results.  This will be integral to presentation of the "storm rule" defense, about which see discussion below.
  •  If snow fighting responsibilities are provided by an outside plowing service, it is strongly recommended that you secure a written contract, which clearly describes scope of work, and provides adequate indemnification provisions.  The contract should also express the fact that it is not intended to create any third party beneficiaries.
  • Additionally, the plowing contractor should be required to name the venue (and related entities) as an additional insured on the contractor’s CGL policy, with adequate limits (no less than $1M primary, $5M excess for most situations).

Since this recent change in the law, Shumway, Giguere & Fox, PC has advocated on behalf of its clients adoption of the so-called “storm rule”, which prevails in the majority of other jurisdictions which observe the reasonable care standard.  This exception to the duty to remove snow and ice applies during a storm event, and for a reasonable time thereafter.  The storm rule is perhaps best described in Mattson v. St. Lukes Hospital, 252 Minn. 230, 233, 89 NW2d 743 (1958):

 

“Absent extraordinary circumstances, and none are here involved, it is the general rule that a business establishment or other inviter may, without violating its duty to exercise reasonable care for the safety of business guests or invitees, await the end of a freezing rain or sleetstorm and a reasonable time thereafter before removing ice and snow from its outside entrance walks, platform, or steps. The basic reason for this rule is that during the continuance of a freezing rain, snow, and sleetstorm it is inexpedient and impractical to remove from exposed walks and steps icy and slippery conditions, or to take other corrective action such as the spreading of sand, ashes, or similar abrasives. Since a storm produces slippery conditions as long as it lasts, it would be unreasonable to expect the possessor of the premises to remove the freezing precipitation as it falls. Reasonable care requires only that the possessor shall remove the ice and snow, or take other appropriate corrective action, within a reasonable time after the storm has abated. The fact that the possessor may have attempted to take corrective measures during the storm's progress does not change the situation even though such measures were temporarily effective. The exercise of reasonable care for the safety of invitees requires neither the impossible nor the impractical, and carries with it the necessary implication that the actor shall have reasonable notice of the need for, and a reasonable opportunity to take, corrective action for the safety of invitees. We adopt the majority rule as a sound exemplification of the principle of reasonable care during a storm.”

 

Massachusetts has not yet adopted this rule, but common sense suggests that it will eventually become law.  Shumway, Giguere & Fox PC has successfully used the reasoning behind this exception to achieve successful outcomes for its clients.  Should you have the need to consult about these or related issues, please feel free to contact us.

 

Shumway, Giguere & Fox PC also provides effective advocacy in defense of auto tort claims, homeowner’s claims, commercial general liability claims and insurance coverage issues.  We defend sports and entertainment venues throughout Massachusetts on behalf of the leading insurance organizations concentrating in this market.