Posted on Tue, Aug 31, 2010 @ 03:02 PM
In its July 26, 2010, decision in the case of Papadopoulos v. Target Corporation, the Massachusetts Supreme Judicial Court significantly altered the law of premises liability in Massachusetts. The decision eliminates the long-standing common law rule that landowners are not liable for injuries caused by natural accumulations of snow and ice. Instead, property owners owe a duty of reasonable care to all lawful visitors as to snow and ice hazards - the same standard owed for all other hazards occurring on the property.
- I. FACTS
On December 20, 2002, Emmanuel Papadopoulos drove to the Liberty Tree Mall in Danvers to shop at the Target department store. The temperature was below freezing, but it was not snowing or raining. The parking lot outside the store had been plowed and was essentially clear, although the plaintiff did notice scattered snow and some areas of ice. The plaintiff parked his automobile in a "handicapped space" close to the store entrance and immediately beside a raised median strip that separated the parking area from the traffic lane running between the lot and the store. In clearing the lot, the snowplow had deposited a pile of snow on the median, but in doing so, the plow left some remaining snow on the ground by the edge of the median. The plaintiff left his automobile, entered the store, and made a purchase. As he proceeded toward his automobile after leaving the store, he slipped on a piece of ice that had frozen to the pavement. The ice on which the plaintiff tripped either had 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 landscaping company responsible for plowing the parking lot. The Defendants filed a motion for summary judgment at the trial court level arguing that no liability could attach because the ice was the result of a natural accumulation. The trial judge, in allowing the defendant’s motions for summary judgment, concluded that, the ice that caused the plaintiff's fall was a "natural accumulation" and that, as a matter of law, the plaintiff could not prevail on his claims of negligence. Papadopoulos appealed and the Appeals Court affirmed the entry of summary judgment based upon the natural accumulation defense. Papadopoulos then sought review by the Supreme Judicial Court.
- II. BACKGROUND
The origins of the “natural accumulation” rule are murky at best. Many commentators and out-of-state courts have suggested that the rule originated with the Supreme Judicial Court’s 1883 decision in Woods v. Naumkeag Steam Cotton Co. However, according to the Supreme Judicial Court, the “natural accumulation” defense articulated in Woods was only available to landlords in suits by their tenants until 1992 when the Supreme Judicial Court’s decision in Aylward v. McCloskey made the “natural accumulation defense” available to all landowners against all lawful visitors to their property. Regardless of the precise date that the ”natural accumulation” defense originated, by 1972 all New England states except Massachusetts had rejected it In the face of these rejections and despite persistent criticism, Massachusetts retained the defense for the next several decades.
However, in recent years cracks began to form in the doctrine, as Massachusetts Courts began a shift towards a more robust duty of care for landowners. Of particular importance in this regard was the 2010 Appeals Court’s decision in Soderberg v. Concord Greene which effectively eliminated the “open and obvious hazard” defense and set the stage for the Supreme Judicial Court’s decision in Papadopoulos.
- III. THE DECISION
With the Papadopoulos decision, the justices of the Supreme Judicial Court unanimously agreed to abolish Massachusetts’ long-standing distinction between natural and unnatural accumulation of snow and ice. The duty owed to lawful visitors is now that of reasonable care, regardless of the nature of the hazard. Simply put, property owners owe a duty to lawful visitors to use reasonable care to maintain its property in a reasonably safe condition in view of all of the circumstances.
In discarding the natural accumulation defense, the Court took particular aim at the premise underlying the rule - that an act of nature cannot create a basis for liability. According to the Court, this premise is manifestly false. The cause of the alleged defect is irrelevant because a property owner has a duty to keep the property reasonably safe regardless of the source of the danger. It does not matter whether the defect is an act of nature or the act of another person. The determining factor as to liability is whether the property owner knew or should have known of the defect and used reasonable care to keep the premises reasonably safe.
The Court also noted that the “reliance on a distinction between natural and unnatural accumulation has sown confusion and conflict in our case law.” For example, piled snow may constitute a “natural accumulation” while run-off from that pile would be deemed “unnatural.” Further, where a snow pile had been removed but the ice underneath the snow remained, the remaining ice constituted a “natural accumulation.” Thus even where removal efforts themselves actually created a risk, no liability could attach if the removal efforts did not change the natural accumulation into an unnatural accumulation. Due to the inconsistent results created by the natural accumulation distinction the Court concluded that the traditional premises liability standard would be preferable.
The Court’s rejection of the natural accumulation defense also relied upon, and essentially affirmed, the Appeals Court’s recent elimination of the “open and obvious” defense. The “open and obvious” defense held that a property owner need not warn lawful visitors of open and obvious dangers because an ordinarily intelligent person would be aware of, and could be expected to avoid, such open and obvious dangers. In Soderberg, the Appeals Court eliminated the “open and obvious defense” because it improperly removed the landowner’s duty to remedy known hazards. Relying on Soderberg, the Supreme Judicial Court determined that even if snow and ice constitutes an open and obvious defect, it does not eliminate the property owner’s duty to exercise reasonable care in making the property reasonably safe.
In doing away with the natural accumulation defense, the Supreme Judicial Court emphasized that it was placing no special burden on property owners. The obligation for snow and ice removal is now that same as the duty owed as to all other hazards. According to the Court, “[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 [them] against the danger.”
Going forward, the reasonableness of any snow and ice removal efforts will be judged based upon, among other things, “the amount of foot traffic, the magnitude of the risk reasonably feared, and the burden and expense of snow and ice removal.”
- IV. EFFECT ON LITIGATION
Because the decision applies retroactively it applies to currently pending cases as well as any individual whose injury occurred within the past three years. Consequently, its impact should be felt almost immediately as the first opportunities for implementation will reach the courts in a matter of months.
Regardless of the wisdom of the Court’s decision, its effects on litigation will be substantial. The decision clearly creates a higher burden for snow and ice removal than previously existed. The natural accumulation defense heavily favored property owners, discouraged litigation of snow and ice related claims and prevented the vast majority of such claims from ever reaching a jury. Without the natural accumulation defense a property owner’s ability to dismiss a given claim prior to trial has been effectively nullified. As a result, cases which would have been dismissed at the pre-trial stage will now be more likely to go to trial, causing insurers to expend significantly more money in legal fees and resulting in more expensive settlements for insurers seeking to avoid trial. These costs will be reflected in increased premiums.
- V. EFFECT ON PROPERTY OWNERS
For property owners, the effects of this decision are much less obvious, and will remain so until the rule has been subjected to judges and juries. The prudent course for property owners at this time is to review (and if necessary update) their snow removal policies and budgets. Obtaining experienced and reliable snow removal contractors is now more important than ever. Even more importantly, such contractors must be insured.
Proper scheduling of snow removal and efficient and effective response to snow removal requests will be of particular importance when seeking to avoid liability and salt, sand, and other ice melting materials should be available and on the premises at all times to facilitate this effort. Frequent and thorough inspections of the premises would also be prudent, as would warning signage in areas that are prone to accumulation and difficult to maintain might also be prudent. Proper documentation of the dates and times when snow removal activity occurs should be undertaken to establish the reasonableness of the efforts should litigation arise.
- VI. CONCLUSION
The elimination of the natural accumulation defense represents a significant change in Massachusetts law. Just how significant will depend upon the decisions of judges and juries over the next several years. Nevertheless, there is a strong possibility that property owners will occasionally experience adverse results in cases where victory would have otherwise been assured. To minimize these risks, property owners should take the necessary and prudent steps to maintain their premises and do their best to eliminate potential hazards caused by snow and ice as soon as these hazards materialize.
Please feel free to contact Brian A. Joyce, Managing Partner, at bjoyce@joycelawgroup.com for any questions concerning this information or for any other legal needs.
Posted on Tue, Aug 31, 2010 @ 03:01 PM
A Norfolk Superior Court Jury recently awarded $12 million dollars to two victims of a 2006 car crash, Lawyer’s Weekly reports. The victims, Joseph and Douglas Homsi were driving on Blue Hill Avenue in Milton at 2 a.m. on Dec. 10, 2006 when they were struck head-on by an SUV driven by Vittorio C. Gentile Jr. The brothers had to be pried from the wreckage by emergency personnel using the Jaws of Life.
The driver, Douglas Homsi, sustained multiple bone fractures and injuries to his internal organs that left him unable to breathe or eat on his own. Douglas would later suffer a stroke as a result of the injuries, leaving him unable to speak. His brother, Joseph Homsi, suffered a broken sternum and ribs as well as internal injuries. Gentile Jr. was driving his grandparents’ sports utility vehicle at the time.
The complaint asserted claims against Gentile Jr., who had a record replete with citations, accidents and license suspensions, as well as his grandparents who, according to the complaint, allowed Gentile Jr. to drive their vehicle despite his poor driving record.
In its $12 million verdict, the jury in Silverio v. Gentile, et al, Norfolk Superior Court, No. 2007-212, found that Gentile Jr.’s elderly grandparents, Lydia and Vittorio Gentile, were responsible for negligently permitting him to use their vehicle despite their awareness of his extensive and poor driving record. Apparently, Gentile had been hit with so many surcharges that the grandparents had removed him from their insurance policy.
An award against the owner of a vehicle for negligently allowing another to drive is unusual. Negligent entrustment is difficult to prove because the plaintiff has to show that the defendants knew or should have known about something they claim that they did not know. Here, the combination of Gentile Jr.’s lengthy poor driving record and his removal from the grandparent’s insurance likely convinced the jury that the grandparents had knowledge that Gentile Jr. was a dangerous driver but took no steps to prevent him from driving their vehicle.
This substantial verdict is particularly notable for having been rendered in Norfolk County, a county which has been described as extraordinarily unfriendly to tort plaintiffs in recent years.