With two more months left in 2023, many associations have entered into their snow removal and snow plowing contracts. However, even with those contracts in place, it should be remembered that it was not that long ago that Massachusetts abandoned its long-standing rule of “open and natural accumulation” which operated to protect landowners from liability where a person suffered injury as a result of the accumulation of snow and ice on the ground, the so called “slip and fall” cases. Although to many people the 2010 decision of Papadopoulos v. Target Corp is ancient history, nevertheless its impact on condominium associations cannot be overlooked.
Prior to 2010, the law was such that an injured party who slipped on snow and/or ice and sustained an injury as a result, had a great deal of difficulty winning a judgment for their injury. This all changed when Emmanuel Papadopoulos went shopping at the Target store in the Liberty Tree Mall in Danvers. While on the way to his car in the parking lot, Mr. Papadopoulos slipped on a patch of ice and injured himself. Not surprisingly, he wanted to be compensated for his pain and suffering and related expenses. He filed suit against what he considered to be the party responsible for his injuries, Target. Even though there was no doubt as to the legitimacy of his claim and the amount of the damage he suffered, Target won at the trial level. The reason Mr. Papadopoulos was left out in the cold was because of the long-standing law in Massachusetts that ice was a natural accumulation based on the likelihood that snow formed after running off from the snow pile and refreezing on the pavement. To the surprise of attorneys throughout this Commonwealth, the Supreme Judicial Court decided to throw out the centuries old doctrine of natural accumulation (and the distinctions between natural and unnatural accumulation) and held that property owners have a legal duty to keep their property free from dangerous snow and ice. Snow, ice, sleet and slush needed to be removed within a “reasonable time” after a snowstorm. Failure to do so could now result in the landowner could now be held liable for injuries as a result of slip and fall accidents if they failed to remove the snow, ice, etc. regardless of whether the material that caused the accident was a natural or unnatural accumulation and regardless of whether or not it was open and obvious at the time the injured party slipped on it.
Needless to say, this resulted in an intense review of snow removal policies for condominiums and scrutiny of snow removal contracts. The attention given to this in 2010 is just as important as it is now. With the leaves falling daily as winter advances, now is a good time to look at your snow removal contracts to make sure their liability coverage (if any) coordinates with your liability insurance policy. Of course, this often leads to questions about exclusive use common areas …Boards are left wondering whether exclusive use common areas are to be cleared of snow and ice by the Board or by the unit owner who receives the benefit of the exclusive use area. Boards worry that if they perform these services that they will be opening themselves to additional liability if someone falls after they have undertaken the removal of the snow. On the other hand, unit owners argue that this is still common area and thus it is the responsibility of the Board to address this issue. As with so many other things, the answer should be in the section of governing documents setting forth the responsibility for exclusive use areas[1]. However, many documents, particularly older ones, did not consider these issues and it becomes unclear as to who is required to remove snow. The Board should also review its policies and procedures for removal of cars from parking lots before or after a snowfall and any other policies that they feel can assist in snow removal. Reference to the charges for costs involved in clearing a limited common use area should be plainly set out any snow procedure with owners should be reminded of their responsibilities under the documents. Now is not the time to rely on the data that shows winters are getting milder with fewer snowstorms and lessening accumulations of snow. As said in Game of Thrones, “Winter is coming”.
Written by
Ellen Shapiro
[1] Of course, in Massachusetts the Condominium Statute, M.G.L. c. 183A provides that the association can charge the cost of maintaining a limited common area to the owner who has the right to use the exclusive use area or may require the owner to do the work himself. Unfortunately, this too leads to problems for the associations where owners either refuse to do the necessary work due to the mistaken belief that it is the association’s problem or refuse to pay for the work if it is charged back to them.
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