Winter Weather Advisory
By Ryan K. O’Hara, Esq.
The start of a New England winter is one of nature’s cruelest jokes — one weekend, it’s 60 degrees and cloudless, stunning foliage glinting in brilliant sun (until it sets, and at a reasonable hour, mind you); the next, it’s pitch black before 5 o’clock, and the outside world morphs into a barren, inhospitable tundra. The chill November breeze whispers: “gotcha!”
Each year, this sudden shift catches me by surprise. If you’re an eternal pessimist like me, talk of winter likely conjures unpleasant visions of storms, salting, shoveling, ice scraping, and (gulp) car cleaning. Apart from the brightness and lightness of the winter holidays, the picture for the next several months is a bit grim.
As we steel ourselves for the winter ahead, it’s a good opportunity to give a moment’s thought to another cheerful seasonal topic — the legal aspects of snow and ice accumulation and removal. Whether you love the winter weather or just love to complain about it, snow, ice, and sleet are facts of life here in Western Mass. for more than a quarter of the year. And, as with any environmental condition, they cause accidents.
When winter weather plays a role in an accident causing property damage or injury, who is responsible? As usual, the old (perhaps roasted?) chestnut of a lawyerly answer applies: it depends. Generally, most liabilities relating to snow or ice arise from claims of negligence. Negligence occurs when someone who owes a duty of care fails to act reasonably, causing harm to someone else. Everyone owes a general duty of reasonable care in their actions to all people those actions may affect.
“Negligence occurs when someone who owes a duty of care fails to act reasonably, causing harm to someone else. Everyone owes a general duty of reasonable care in their actions to all people those actions may affect.”
In practice, this means that, when any of us have snow-cleaning responsibilities, if we are negligent in carrying them out, we may be liable to others — a scary premise. However, simple steps can go a long way in avoiding accidents in the first place. An increased mindfulness of winter weather and its impact on safety will make sure you stay off your insurer’s naughty list. Below are summaries of liability concerns arising from winter weather in some common contexts, with recommendations for how you can appropriately protect yourself and others.
The Massachusetts Supreme Judicial Court has established a rule that property owners must address all snow and ice on their properties, and act reasonably in removing snow and ice to make the property safe for use (see Papdopolous v. Target Corp., 457 Mass. 368 ). So, for example, when a patron slips on a walkway controlled by the business and breaks their wrist, the business may be legally responsible under Massachusetts law.
In deciding whether a business was negligent as to any harm caused by snow and ice, a jury will be directed to consider the reasonableness of safety measures taken. This analysis takes into account all relevant circumstances, including the severity of the storm, the amount of snow, the amount of time the condition existed, and the cost efficiency of safety measures.
The best way for businesses to protect themselves in these circumstances is to develop a protocol for preventing accumulation of snow and ice where possible, and for prompt post-storm cleanup. A reasonable business is one that anticipates risks posed by snow and ice and takes tangible steps to mitigate those risks.
Therefore, responsible businesses should be aware of impending weather events and take pre-storm steps (such as salting) to prevent accumulation in the first place. Removal of any snow necessary to enable patrons’ access to the business should be the first post-storm step, making sure that all walkways, stairs, and ramps are cleared and fully safe for use as soon as practical. At least one method of legally compliant access should be established before opening for business.
Winter-weather safety doesn’t stop at the front door, either. The business should also be cognizant of secondary weather impacts, such as the accumulation of water from snow melt tracked in by customers. To the extent there is any dangerous condition the business can’t fix, inside or outside, it should put up signs warning patrons of the danger (especially as a court would also evaluate an injured party’s own responsibility for their harm in any claim).
The business should also monitor changing conditions throughout the post-storm period, such as snow that melts and then refreezes. Finally, the business should keep an eye out for season-long hazards, like large icicles accumulating along gutters and eaves.
Often, businesses choose to contract with an outside vendor for snow removal. Although it’s never a bad idea to put a professional in charge, be wary of relying too heavily on contractors: if the contractor is failing, the business must take appropriate steps to ensure its premises are safe.
Landlords and Homeowners
In general terms, landlords and homeowners owe the same duty to their tenants and guests as do businesses to their patrons: reasonable care in removing snow and ice in any area controlled by them. Many of the same considerations apply. However, unlike a business, a landlord cannot simply stay closed to the public until snow is cleared; rather, their tenants are often at the property throughout the duration of a storm.
Accordingly, responsible landlords should be especially vigilant in monitoring for storms, and especially prompt in clearing any and all common areas and accesses into the building or units.
Finally, drivers should be attentive to all weather conditions. Should you be involved in any accident, the reasonableness of your driving (including your speed) will be evaluated in light of the weather and road conditions. Preventive measures such as snow tires, and using additional caution when driving during a storm, will aid you in avoiding accidents (and liability, should an accident occur).
Drivers should be sure to thoroughly clean their vehicles before hitting the road. Accumulation of snow and ice on hoods, windshields, roofs, and trunks is a hazard — who hasn’t seen a practical glacier fly off the roof of a semi on the Pike? State law makes clear that drivers are obligated to clear their vehicles before they begin driving. Scofflaws ignore this rule at their own peril: not only might you earn a fat ticket from a state trooper, but if snow and ice flies off your roof and causes an accident, your violation of state law will be evidence of your negligence (and, therefore, liability for the accident).
The law is clear: Massachusetts citizens who take a lackadaisical approach to snow removal are walking on thin ice. If you are unfortunate enough to be involved in an accident involving winter weather, you want to be sure you have taken reasonable, appropriate measures to ensure the safety of yourself and others. Fortunately, such steps are typically simple, inexpensive, and within your control.
No one likes shoveling (no one I know, anyway); however, a little shoveling beats a lot of medical bills and legal fees. Plus, you’ll even get a little exercise. Who couldn’t use that in the middle of the darkest, coldest days of the year?
Ryan K. O’Hara is an associate with Bacon Wilson, P.C. and a member of the firm’s litigation team. His legal practice is focused on contract and business matters, landlord-tenant issues, land-use and real-estate litigation, and accidents and injuries; (413) 781-0560; [email protected]