Natural Accumulation Rule vs. Reasonable Care
The courts consider a new standard for cases involving slip and falls caused by snow and ice.
It was late December in Massachusetts and the skies were clear, but the temperature was below freezing. Emanuel Papadopoulos arrived at a Target department store around 11 a.m. Recent snow had been plowed from the parking lot, but areas of scattered snow and ice remained. Emanuel safely entered the store, but as he was returning to his car he slipped and fell on a patch of ice.
Emanuel filed a lawsuit against Target and the contractor responsible for snow and ice removal, arguing that they failed to properly protect visitors from the hazards caused by snow and ice. The defendants contended that they did not breach a duty of care even though snow and ice were present in the parking lot. The trial court dismissed the claim applying the long-standing natural accumulation rule, or Massachusetts Rule, which states that a property owner is not liable for injuries resulting from the natural accumulation of snow and ice on their property.
Emanuel appealed and, in Papadopoulos v. Target Corporation, 930 NE2d 142 (Mass. 2010), the Massachusetts Supreme Judicial Court revisited the natural accumulation rule rejecting it in favor of a reasonable care standard similar to the standard most states apply to slip and fall cases. The standard requires landowners to use reasonable care to keep their property free from dangerous conditions.
The Evolution of the Rule
At the heart of the Massachusetts Rule is the distinction, derived from cases decided in the late 1800s, between the natural accumulation of snow and ice and an accumulation that is not natural.
In Watkins v. Goodall, 138 Mass. 533 (Mass. 1885), a tenement owner was sued by a tenant who fell down stairs after she slipped on a ridge of ice. The ice accumulation was caused by water that drained from the building’s cracked downspout. An overnight snowfall covered the ice prior to the plaintiff’s accident. The court found that the owner “...was liable for a want of repair in the pipe by which the water was discharged artificially in one place upon the platform so as to make it dangerous when frozen."
Initially Massachusetts courts limited the distinction to landlord-tenant cases. The rule was first applied to other entrants on land in Aylward v. McCloskey, 587 NE2d 228 (Mass. 1992). In Aylward, the plaintiff broke her leg when she slipped on snow and ice on the defendants’ driveway. The court ruled in their favor concluding that the natural accumulation of snow and ice is not a property defect that creates liability.
The Papadopoulos court discussed the Aylward ruling which recognized that the duty owed by the defendants was one of reasonable care in the circumstances and “the simple fact that a person slips on ice on another’s property does not subject the property owner to liability.” The court also declared, however, that landowners are liable only for injuries caused by defects existing on their property and that “the law does not regard the natural accumulation of snow and ice as an actionable property defect, if it regards such weather conditions as a defect at all.” There was no evidence that the defendants had “created a defective condition on their property.” In this manner, a relic of abandoned landlord-tenant law was resurrected as an exception to the governing standard of reasonable care. It further created a standard of liability specific to slips and falls on snow or ice that depended on a fact finder’s determination of whether the snow or ice was a natural or unnatural accumulation.
Other jurisdictions have adopted the Massachusetts Rule over the years and various exceptions have been created. Some jurisdictions reason that the natural accumulation of snow and ice is not an unreasonably dangerous condition. The Texas Supreme Court took this position in Scott and White Memorial Hospital v. Gary Fair and Linda Fair, 310 SW3d 411 (Tex. 2010). In Scott and White, the plaintiff slipped and fell on ice while walking from the defendant hospital to his car. The plaintiff and his wife sued.
The court rejected the plaintiffs’ contention that ice should be treated differently than mud because ice rarely occurs in Texas. The court concluded that ice, like mud, results from precipitation beyond the landowner’s control and it would be too heavy of a burden to require landowners to guard against wintery conditions. Through meteorologist testimony, the defendant established that the ice was caused by a winter storm and was in a natural state, which the court defined as ice that “accumulates as a result of an act of nature.”
The plaintiffs challenged this by arguing that deicer transformed the ice into an unnatural, more dangerous state. The court noted that “…salting, shoveling, and applying deicer to a natural ice accumulation does not transform it into an unnatural one. To find otherwise would punish business owners who, as a courtesy to invitees, attempt to make their premises safe.”
Ohio courts, like many courts that apply the natural accumulation rule, recognize two exceptions to the rule. According to the court in Jefferies v.United States, 2010 U.S. Dist. LEXIS 30426 (N.D. Ohio 2010) the exceptions applied in Ohio are:
- The landowner had actual or implied notice that snow and ice accumulations created a substantially more dangerous condition than invitees should have anticipated based on their knowledge of conditions generally prevailing in the area; or,
- An intervening act of the landowner perpetuated or aggravated the preexisting, hazardous presence of ice or snow.
These exceptions can be difficult to prove. In Jeffries, the plaintiff was a veteran who slipped and fell on snow or ice on the sidewalk of a VA clinic. At the outset, the district court noted that Ohio landowners do not have a duty to protect business invitees from dangers that “are so open and apparent to such invitee that he may reasonably be expected to discover them and protect himself against them.” The plaintiff argued that the natural accumulation doctrine did not apply because imperfections in the sidewalk made the accumulation of snow “non-natural” and substantially more dangerous than it should have been. The plaintiff presented photos and argued that he did not voluntarily assume the risk of walking on snow and ice because he had to attend his medical appointment.
The court rejected these arguments and ruled for the defendant. Relying on Ohio case law, it found no evidence of an intervening act that perpetuated or aggravated the conditions. The court further noted that there was no evidence that the plaintiff attempted to find another way into the building or to reschedule his appointment.
In Moore v. The Kroger Co., 2010 Ohio 5721 (Ohio App. 2010), an Ohio appellate court rejected the plaintiff’s argument that snow and ice covering a speed bump outside a grocery store was an unnatural accumulation that created a substantially more dangerous condition than a patron could anticipate. The plaintiff presented expert testimony that the speed bump’s length and arc created a slope that made it dangerous in snowy conditions; yellow paint on the bump caused snow and ice to accumulate faster and melt slower; and the bump caused snow and ice to dislodge from the undercarriages of passing vehicles, creating an unnatural accumulation on the speed bump. The plaintiff also claimed that the speed bump was not visible and that snow and ice piled around it caused her fall.
The court concluded that there was no evidence to suggest that the snow and ice accumulation was anything other than the natural buildup during the winter season. It went on to say that the arc and yellow paint were normal characteristics of speed bumps to assure the safety of motor vehicle operators and pedestrians, and they did not make the accumulation unnatural.
The court also rejected the plaintiff’s argument that the covered speed bump was a substantially more dangerous condition than she should have anticipated. It contrasted the plaintiff’s claim with an earlier case in which a property owner was held liable for an invitee’s slip and fall caused by a snow covered, seven-inch hole in the property owner’s parking lot. The court reasoned that an invitee cannot be required to anticipate a snow covered hole in a parking lot while a speed bump can reasonably be expected, especially considering that the plaintiff had been shopping on the defendant’s premises since she was a child.
Be aware, however, that jurisdictions that have a natural accumulation rule often do not apply it to slip and falls when there is a state statute or local ordinance that also applies. This typically occurs in slip and fall cases involving sidewalks.
A Change of Course in Massachusetts
The reasonable care standard that modern courts apply to slip and fall cases involving snow and ice can be found in the Restatement of Torts (Second) § 343 (1965). The Connecticut Supreme Court’s decision in Reardon v. Abraham Shimelman, 102 Conn. 383 (Conn. 1925) contributed to the modern rule. This case, like the early Massachusetts cases, involved a slip and fall on ice and snow at a tenement. However, the court specifically considered the Massachusetts Rule and rejected it stating that “an accumulation of ice or snow upon a common approach to a tenement house may impose upon the landlord a liability for injuries due to it, provided he knew, or in the exercise of reasonable oversight ought to have known, of the existence of the dangerous condition and failed to exercise reasonable care to provide against injury by reason of it.”
Interestingly, the Massachusetts Supreme Judicial Court in its 2010 Papadopoulos decision adopted Connecticut’s reasonable care standard for much the same reason that the Connecticut Supreme Court rejected the Massachusetts Rule in 1925—there is no sound reason to distinguish between natural and unnatural snow accumulations in slip and fall cases. Specifically, the Massachusetts court said:
“… the reliance on a distinction between natural and unnatural accumulation has sown confusion and conflict in case law. ... The only rationale the decisions of this court have offered in support of this rule is that the property owner owes a duty to repair or warn of defects on the property, and a natural accumulation of snow or ice is not a defect. ... Implicit in this rationale is that a dangerous condition on one’s property can be a defect only if it is created or caused by the property owner. We do not accept this rationale where a property owner knows or has reason to know that a banana peel has been left on a floor by a careless customer; we have long held that the property owner has a duty to keep the property reasonably safe for lawful visitors regardless of the source of the danger. The rationale has no greater force when the source of the danger is an act of nature rather than an act of another person.
The court rejected the rationale that dangers associated with snow and ice accumulation are open and obvious, and that the invitee is solely responsible for his own safety when encountering snow and ice. It noted that while a property owner may have no duty to warn of an open and obvious danger, he is not necessarily relieved of the duty to remedy that danger and the rule should be no different in situations involving winter precipitation.
The court also rejected another justification for the Massachusetts Rule that the weather and cold climate make it impractical, if not impossible, to impose on landowners an obligation to remove snow or ice. Interestingly, the court noted that every other supreme court in New England had already rejected (at least in part) this line of reasoning.
Finally, the Papadopoulos court was persuaded by the problems in prior cases associated with distinguishing between natural and unnatural accumulations of snow and ice when accidents occurred after landowners had attempted to clear the snow and ice. In particular, one Massachusetts court reversed a verdict in favor of a plaintiff who slipped and fell on an entrance ramp after the defendant had shoveled away snow and exposed a layer of ice. Even though the shoveling may have made the ramp more dangerous, the court held that “liability does not attach ... when a property owner removes a portion of an accumulation of snow or ice and a person is injured by slipping and falling on the remainder ….”
It remains to be seen whether other jurisdictions that apply the natural accumulation rule will follow the lead of the Massachusetts Supreme Judicial Court.
In Papadopoulos, the court overruled its prior common law rule and adopted a reasonable care standard for slip and fall cases involving snow and ice. Rejecting the long-standing rule of distinguishing between natural and unnatural accumulations of snow and ice as a “relic of abandoned landlord-tenant law,” the court announced that the liability of Massachusetts landowners for removing snow and ice, or failing to remove it, will be governed by traditional premises liability principles. As a result, when faced with snow and ice on their property, landowners must act as a reasonable person would under the same or similar circumstances. And to determine whether that standard was met, courts will consider the likelihood of injuries to others, the probable seriousness of such injuries, and the burden of reducing or avoiding the risk.
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