Slip Sliding Away

As I look out on a chilly November day, I realize that winter is soon upon us, so I thought it timely to review an important case that came down from the Massachusetts Supreme Judicial Court last year. The case involves personal injury liability resulting from falls on snow or ice.

During a career in which I have represented dozens of clients with personal injury cases, I have accepted only several involving what are known in the profession as "slip and fall" cases. The conventional wisdom among lawyers who handle injury cases is that fall down cases are hard to win or settle. Jurors hold a bias that people should watch where they are going. Emboldened by many defense verdicts, insurance adjusters are tight with their settlement money in slip and fall cases.

The most difficult of slip and fall cases has always been those involving injuries from falls on ice or snow. Those cases were unattractive for lawyers because of the "unnatural accumulation" rule. For years in Massachusetts, an injured person could not proceed to trial in an ice or snow fall down case unless the ice or snow was caused by an "unnatural accumulation." A typical example would be a drain spout that caused water to spill onto a pedestrian passageway where it would freeze. A property owner could not be found negligent for merely failing to remove ice or snow that had naturally accumulated, from his property.

As of July of last year, ice and snow fall down cases became less difficult to win because the Supreme Judicial Court, in a case called Papadopoulos v. Target Corporation, abolished the unnatural accumulation rule. From now on in Massachusetts, someone who sues because of injuries suffered in a fall on ice or snow will be treated like any other personal injury plaintiff. He will need to show that the property owner failed to take steps that the average reasonable person would take to keep his property reasonably safe for people legally on the property.

What does the new rule mean for property owners? The answer will evolve in the coming years as ice and snow fall down cases work their way through the courts. It appears that there is more risk of legal liability than in the past in not removing snow and ice, or sanding ice, from areas of one's property over which people are reasonably expected to travel. Questions such as what happens if someone falls on snow or ice from a storm that took place while the property owner was away on vacation, have yet to be answered. As a practical matter, jurors are generally more amenable to finding against owners of large commercial properties than the homeowner or small business person. The best advice is to for property owners is tokeep the snow shovels and sand buckets ready and make sure your liability insurance is paid up. For people badly injured because of a fall on ice or snow, the best advice is to contact an experienced personal injury attorney. Your case may be stronger than would have been the case in years past.