Massachusetts Appeals Court Clarifies Snow and Ice Rules for Premises Liability Cases
New Trial Ordered for Tenant Who Suffered Broken Hip
By David W. White
The Massachusetts Appeals Court has granted a new trial to a plaintiff injured in a slip and fall accident on ice after the Superior Court justice misapplied the legal rule governing open and obvious dangers in a premises liability case. The Court limited the application of the open and obvious rule in snow and ice cases.
The facts were straightforward. Plaintiff suffered personal injuries while walking to her car at her condominium complex. She suffered a fractured hip. The area where she fell was frozen slush with deep footprints. She recognized that the area was potentially dangerous and tried to be especially careful, to no avail.
At the urging of defense counsel, the trial judge included a question on the special verdict form asking whether the dangerous condition was open and obvious. He also asked the jury to decide whether the plaintiff had an alternative to traversing the hazard. The jury was not asked to assess whether the landlord was negligent or whether the plaintiff was comparatively negligent. The verdict, on these questions, was for the defendant.
In premises liability cases, the Massachusetts courts have long recognized the duty of a property owner to maintain his or her property in a reasonably safe condition, including remedying hazards caused by "unnatural" accumulations of snow or ice. This duty exists despite the fact that hazards of unnatural snow or ice are readily apparent. Quoting from a case from over a century ago, the Appeals Court noted that "[i]t is hard to conceive of anything more universally known to be plainly liable to cause a person to slip than ice, yet it has not infrequently been held that knowledge of the presence of ice on the part of one attempting to pass over it, sometimes even when there is another way open, is not such evidence of negligence as to warrant the court in ruling as a matter of law that the person injured by the attempt to get over the slippery place is precluded from recovery by negligence." Frost v. McCarthy, 200 Mass. 445, 448 (1909).
Further, "a property owner or possessor should not be relieved from remedying open and obvious dangers where he 'can and should anticipate that the dangerous condition will cause physical harm to the invitee notwithstanding its known or obvious danger.'" (Quoting from Restatement (Second) of Torts, § 343A comment f, at 220 (1965)). "It is entirely foreseeable that people will engage snow or ice hazards lying in well–traveled pathways, even if those hazards are open and obvious."
As a result, the court held the open and obvious rule does not negate a landowner’s duty to remedy hazardous conditions resulting from unnatural accumulations of ice and snow, at least where those hazards lie in a known path of trial. The jury should not have been asked to determine, even before the question of liability on the landowner’s part, whether the dangers posed here were open and obvious. The issue of the obviousness of the hazard should have been reserved in the evaluation of the plaintiff’s comparative negligence. The appeals court further held that the jury should have determined whether the defendant was negligent, whether the negligence was a proximate cause of the plaintiff’s injuries, whether any negligence of the plaintiff in crossing the snow and ice was a substantial contributing factor, and, if so, to determine the parties’ relative percentages of fault.
The case was Soederberg v. Concord Greene Condominium Association, 76 Mass. App. Ct. 333, February 25, 2010.