Sunday, December 29, 2013
It's snowing. Do I have to shovel again?
Until 2010, Massachusetts landowners had two standards on snow and ice removal: natural accumulations and unnatural accumulations. This meant
that if you didn't shovel, plow, or drive over the snow, it was a natural accumulation and the landowner couldn't be sued if someone fell in the ice or snow. In 2010, the Supreme Judicial Court abolished the distinction between natural and unnatural accumulations in the case of Papadopoulos v.Target Corp., 257 Mass. 368 (2010). Instead, the court declared that every landowner has 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.”
How is a landowner suppose to apply this standard when the snow starts falling? When is it reasonable to not remove the snow? The analysis should start with looking at use of the property by lawful visitors. A commercial property that expects customers to enter all day long and into the dark of night has a greater obligation to remove snow and ice than a landlowner who expects a visit once a day of mail delivery. Commercial property should remove snow and ice early and often. Also a residential landlord who has the responsibility to remove snow due to contract or the state Sanitary Code must remove snow with diligence. However, a residential homeowner has a lower duty of care. The residential landowner may not have the need to attack the driveway as soon as the snow stops falling. If no lawful visitors are expected, the homeowner doesn't have to remove snow at all. However, if an unexpected visitor arrives, the homeowner may have problems.
In addition to the duty of care imposed by the Papadopoulos decision, many cities and towns in Massachusetts impose duties to remove snow and ice. For example, the City of Boston requires property owners to remove snow and ice from sidewalks within three hours after snowfall ends. My town requires removal of snow and ice from sidewalks if the sidewalk is along a walking route for school children. Check your town's website to find out what your town requires.
So how is a property owner to know when to remove snow? The problem is that under the Supreme Judicial Court decision, the landowner may not know for certain until someone fallls on the snow and gets injured. The result is that when in doubt, a landowner should remove snow and ice. Commercial landlords should have contracts for removal. Residential property owners should remove snow during daylight within a short period after the storm ends. All property owners should keep an ample supply of salt or chemical ice melt to prevent ice from forming when snow melts and then temperatures drop.
If a landowner is confused over their obligations they should consult an experienced attorney for advice. But before you call the attorney, shovel your driveway.