Snow & Ice Cases - Marcotte Law Firm

Snow and Ice Injuries

Marcotte Law Firm LLC — Mon, 22 Feb 2021 21:05:32 GMT

In Part 1, we discussed the duty owed by property owners in terms of snow and ice removal. In this post, we will discuss what happens if you are injured after slipping on ice or snow. It is important to know what steps are available to you and what, if any, fault you may have in the matter. As noted in the previous post, it used to be much harder to recover damages from a slip and fall caused by snow and ice. A 2010 Supreme Judicial Court (“SJC”) case (Papadopoulos v. Target Corp) overturned an over-a-century-old law regarding the accumulation of snow. The duty placed on property owners was raised and it became easier to prove negligence. However, just because it became “easier,” does not mean collecting damages will be easy. There are still multiple factors at play. All slip and fall cases fall under a class of personal injury claims requiring you to prove negligence. You must establish a duty, a failure to meet that duty, injuries, and that the breach of duty caused those injuries. In a case of snow and ice-induced slip and fall case, the duty owed is by the landowner and he or she owes you “reasonable care” for a safe walking environment, that is, free of ice and snow. Further, you must suffer a significant injury, for example, sprained or broken bones or traumatic brain injury from hitting your head. Finally, you need to establish that the ice was the cause of your slip and fall. There are some additional nuances unique to ice and snow slip and falls that are important to know. Like most personal injury claims, slip and fall accidents have a three-year statute of limitations. However, for snow and ice slip and fall cases, the injured person must notify the property owner within thirty (30) days of their fall that you were injured on their property. This requirement serves two (2) functions. One is to give the property owner notice of a possible pending lawsuit. Next, it protects you from a property owner claiming they were not aware anyone was ever injured on their property. If you fail to provide this timely notice, you will be unable to file a claim. Another potential hurdle in your claim is the legal principle known as “comparative negligence.” Comparative negligence assesses a percentage of fault on both the injured party and the property owner, that is, you both share the blame. While the property owner is responsible for removing ice and snow, when walking on a slippery surface, you too have a duty to exercise reasonable care to avoid getting hurt. By way of example, assume you break your leg after slipping on ice in front of a restaurant. Lets further assume that the restaurant owners failed to “reasonably” de-ice the sidewalk. However, it was shown that you were walking and texting on your phone when you fell. While it is the restaurant owners’ “fault” for not removing the ice, the fact that you were not paying attention to where you were going can place some of the blame on you. In this instance, a court could find that while the restaurant owners’ were at fault, so too were you. Under comparative negligence, they can assign a percentage to you (you are 25% at fault) and the restaurant owners (they were 75% at fault). This means any damages you receive will be reduced by 25% (your percentage of fault). This is important to know, because under comparative negligence laws in Massachusetts, the plaintiff can only be compensated if their share of the blame is less than 51%. (A 2020 SJC case dealt, in part, with the issue of comparative negligence. You can read the full description of this case in a prior blog post here). As if this did not all seem daunting enough, oftentimes, and especially when businesses are responsible, insurance companies get involved. These cases are very fact-specific, and what constitutes “reasonable” snow and ice removal or treatment is often at issue. Therefore, insurance companies try to place blame on the accident victim for the fall. By now, it should be clear that there are a lot of moving parts when it comes to establishing your slip and fall case. It is in your best interest to work with an experienced personal injury attorney to help you navigate through this process.

Snow & Ice – Landowner Responsibilities

Marcotte Law Firm LLC — Mon, 08 Feb 2021 20:51:49 GMT

Winter in New England, a right of passage we all endure every year. No one can claim to be a real New Englander without going through a handful of winters full of blizzards, wind, and freezing temperatures. Cleaning off your car, shoveling the sidewalks and stairs, and salting or sanding the ice are all tenets of our yearly winter ritual. While many of us are used to the cold, snow, and ice, it is important to know what happens when those conditions result in an injury. In the first part of a two-part series, we will discuss what duty you owe as a property owner to others entering your property and what happens in the event someone is injured as a result of a fall on snow or ice. Under Massachusetts law, all property owners (commercial and residential) and landlords are legally responsible for snow and ice removal from their property. While each town and city has its own specific codes (and we encourage you to take a look at your city or town’s requirements), it is important to know the state law establishing this minimum. This means that any publicly-accessible areas, e.g., sidewalks or walkways, driveways, parking lots, etc., must be free of snow and “de-iced.” This is a relatively new law, coming into effect on the heels of a 2010 Massachusetts Supreme Judicial Court (“SJC”) ruling that overturned 125 years of precedent of unnatural vs. natural snow accumulation. The arcane distinction aside, the takeaway is that the SJC prioritized safety of guests and visitors. (That case was Papadopoulos v. Target Corp, which dragged snow and ice law into the 21st century. It got rid of the rule that a “natural accumulation” of snow means that a property owner wasn’t responsible for someone’s injury.). Oftentimes, property owners, usually commercial or landlords, elect to hire a 3rd party to perform the snow and ice removal. In these instances, if you are the property owner, it is important to know two (2) things. First, simply hiring a 3rd party to remove snow and ice does not necessarily absolve you of any liability. Said another way, if someone slips on ice and injures themselves, both you, the property owner, and the 3rd party may be liable for that injury. This brings us to our second thing to know. When hiring a 3rd party, it is important to have a contract that lays out the responsibilities of both parties. For example, many of these contracts call for snow plowing, salting, and sanding, only if 2 inches or more of snow are expected. However, even a coating of snow can develop into treacherous conditions. As a property owner, that’s still your responsibility.

At the same time, many of these contracts have clauses that state who will not only pay for injuries that occur, but also for the cost of the defense. Called a “tender,” we often send letters to property owners only for it to be forwarded to an insurance company for the landscaping company responsible for plowing and sanding.

Another significant SJC case was handed down in 2020 regarding what is known as the “Warranty of Habitability.” (You can read the full description of this case in a prior blog post here). In summary, the SJC found that an ice or snow-induced slip and fall injury did not invoke the warranty of habitability, but rather that of negligence. This is significant because under negligence, the injured person may bear some of the fault, thereby reducing damages owed. If someone is injured due to slipping on snow or ice on your property, they have to provide you with notice of their injury within thirty (30) days. If they fail to provide you with this notice, they will be unable to file a claim against you if you are prejudiced, which is a high hurdle to jump over. If you’ve fallen on snow or ice, it’s important to seek out an experienced lawyer as soon as possible.

Warranty of Habitability for Snow & Ice Cases – New Law

Marcotte Law Firm LLC — Tue, 28 Jul 2020 18:48:02 GMT

The Commonwealth’s top court, the Supreme Judicial Court, gave landlords a bit of a break recently in Goreham v. Martins, 485 Mass. 54, (2020). The decision involves the “warranty of habitability” and the ways for tenants to recover for personal injuries sustained on their rented premises, including cases for people who slip and fall on snow and ice. By way of background, an injured person has a claim “in tort”, that is, that someone’s negligence caused the injury. There are circumstances, however, when the remedy is contract or semi-contract based. For example, there is a “warranty of merchantability” attached to products. They have to be fit for the purpose intended. A table saw that does not have a guard, for example, can be found not to have met the warranty of merchantability, and resultant injuries can be compensable under a breach of warranty theory. Similarly, the warranty of habitability assures that a rented property is fit for human occupation. If a ceiling falls on your head, you have a claim for breach of the warranty of habitability even though the landlord lacked notice of the hazard thereby making a negligence claim very difficult. In Goreham, the tenant of a three unit apartment house exited a fire escape that led to an icy driveway. He slipped and fell on the ice, severely injuring his ankle. He could have gone out the front door and thereby avoided the ice, but he commonly utilized the fire escape which more directly serviced his unit. The jury found the defendant landlord negligent, so for a moment the plaintiff/tenant was happy. Unfortunately, his joy was short lived. The jury next announced that they found the plaintiff 53% comparatively negligent, which means he was 53% responsible. If a plaintiff is more than 50% responsible, he/she does not get anything. Undeterred, his attorney argued that the landlord had breached the warranty of habitability. This is important because with these contract claims, comparative fault does not apply. So, even if the injured person was partially responsible, he is still able to recover. This has been an open question in Massachusetts. The trial judge disagreed with the tenant. He appealed. The SJC avoided the issue of comparative negligence and its ramifications on breach of warranty of habitability. It determined instead that a slip and fall on snow and ice did not implicate the warranty even if the landlord unreasonably failed to clear snow and ice from a common area. Relief is available, therefore, only under a negligence claim. This is not such a blow to plaintiffs as it may appear. In 2010, the Supreme Judicial Court eliminated a nonsensical historical distinction between “natural” and “unnatural” accumulations of ice and snow that immunized even landowners who never shoveled. That means that even if a landlord didn’t shovel for weeks after a snowstorm, an injured person could not be compensated for an injury. So negligence cases for injuries from slipping on ice became easier. The SJC in Goreham noted that, “[T]he scope of the warranty of habitability includes only the physical maintenance and repair of a dwelling unit.” As a practical matter, a tenant can see conditions outside of the apartment, (for example ruts in paved areas, potholes, ice), but not hidden conditions inside the dwelling (slow roof leaks rotting the ceiling, poor quality construction that allows railings to give way). Therefore, this case simply makes sure that comparative negligence applies to snow and ice cases, or other injuries resulting from something that happens outside the building. And this also puts off consideration of applying comparative negligence to warranty of habitability cases. It would be hoped that the decision in Goreham will result in some lowering of insurance liability costs to landlords, and ease pressure on rents, but don’t hold your breath. There is an interesting and disturbing aspect of Goreham that gets lost in the legal issue. Plaintiff dislocated his ankle, fractured his fibula, underwent multiple surgeries, and still had pain. The jury assessed damages at $25,000.00. This is low and unless Mr. Goreham had the most charitable medical providers in the history of the world, probably barely covered medical costs.