With the first day of winter upon us, Massachusetts and the rest of the Northeast will likely be in for its fair share of snow and cold weather. With snow often comes ice, and to state the obvious – ice is slippery. Slip and falls can happen just about anywhere, but often they occur on sidewalks. If this happens to you and you are injured, what is your recourse? Read on to find out!
Let’s assume you slipped and fell on a sidewalk that was covered with ice and that sidewalk abuts a privately owned business or a home (this is often the case). In those circumstances we start with the basic principle that a property owner must only “refrain from using his land or maintaining conditions or structures thereon in a manner which will interfere with the safety and convenience of travelers on the public way.” Pritchard v. Mabrey, 358 Mass. 137, 140 (1970). If you are wondering if a sidewalk is a public way – it is. See Diamond v. Newton, 55 Mass. App. Ct. 372, 374 (2002) (a public way includes the road and sidewalk). So, to summarize the general rule, a landowner whose property abuts a sidewalk does not need to do anything to keep the sidewalk free of snow and ice. The landowner’s only duty is a negative one – he or she must do nothing to create an unsafe condition on the sidewalk. See Papadopoulos v. Target Corp., 457 Mass. 368, 375 n.11, quoting Bamberg v. Bryan's Wet Wash Laundry, Inc., 301 Mass. 122, 123-124 (1938) (“The owner or occupant of premises abutting on a public way is under no obligation to keep the sidewalk free of snow or ice which came there from natural causes.”).
But what about city and municipal ordinances requiring property owners to clear snow from their adjoining sidewalk within a certain time after a snowfall? Generally, a violation of an ordinance is evidence of negligence on the party who violated it (if the violation is the cause of someone’s injury). But ordinances relating to the removal of snow and ice from sidewalks “are for the benefit of the community at large, and not for persons who fall as a result of snow and ice.” Gamere v. 236 Comm. Ave. Condo. Assn., 19 Mass. App. Ct. 359, 361 (1985). Thus, violations of snow removal ordinances are not evidence of negligence on the part of the property owner.
Could it get any worse? Yes! Cities and towns are effectively not liable at all for “injury or damage sustained upon a public way by reason of snow or ice.” G. L. c. 84, § 17. (a person can recover damages for injuries due to a defect in a public way (apart from snow and ice), but those damages are limited to a maximum of $5,000. See G. L. c. 84, § 15.)
So, to summarize, cities and towns are effectively not liable for slip and falls on a public sidewalk due only to snow and ice; and property or business owners have no duty to keep an adjoining sidewalk free of snow and ice. Is all hope lost if you fall and are injured due to an icy sidewalk? Perhaps not. Stick with me here.
If the structures on a piece of property are such that “in the ordinary course of things, snow or ice . . . [is] liable to fall from the roof upon travelers on the adjoining highway,” or such that the structures “collect water into a definite channel by a spout or otherwise and pour it upon a public way,” and either of those circumstances cause injury to a traveler on a public way, the owner of the property can be liable for the injuries. See Pritchard, supra. What does this mean? In terms of a private house, take a look at the property adjacent to the sidewalk. Are there downspouts draining from the property onto the sidewalk causing water to freeze on the sidewalk? If the sidewalk is adjacent to the driveway of a house, are cars driving into the driveway and impacting the snow, causing it to melt and then freeze again? These details could cause liability to attach to a property owner for the conditions of an adjoining sidewalk.
In terms of a business which abuts a sidewalk, an argument can be made that broadens the specific duty concerning snow and ice to a more general duty that a business owner has to a visitor “to use reasonable care to keep the premises in a reasonably safe condition for the visitor’s use. This duty extends to that part of the premises which is maintained for the visitor’s entrance and exit.” Schallinger v. Great Atlantic & Pacific Tea Co., 334 Mass. 386, 390 (1956) (internal citations omitted). So, let’s say, for example, there is a large, slippery patch of ice spanning part of the sidewalk and also the entrance to a business. “The patch of ice could be found to be a source of danger to customers entering the store and to have been there for such period of time that the [business owner] knew or should, in the exercise of care, have known of its existence and have remedied the condition.” Ibid. This focus on a general duty owed to business visitors has been suggested by the Massachusetts Supreme Judicial Court as recently as 2010. See Norfolk & Dedham Mutual Fire Ins. Co. v. Morrison, 456 Mass. 463, 470 (2010) (“More recent cases have deemphasized control as the all-decisive determinant and have focused the inquiry on whether the defendant owed a duty of care to the plaintiff.”).
Needless to say, if you are injured as a result of a slip and fall on an icy sidewalk, it is important to have an attorney who knows the subtleties of the law that govern these cases. Many lawyers will turn these cases away as hopeless. Indeed, many of them are. But each case is very fact-specific and needs individual attention. If you slipped and fell on an icy sidewalk, give me a call and let’s go over your case!
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