As reported in this week’s Massachusetts Lawyers Weekly, the Massachusetts Appeals Court rejected the “open and obvious danger” defense in a “snow and ice case”.  The case is Soederberg v. Concorde Greene Condominium Association et al., (Mass. App. Ct. Docket No. 09-P-380).

The case involved an elderly resident of the condominium complex who broke her hip when she slipped and fell on frozen slush while trying to walk to the parking lot.

The trial judge instructed the jury that it should issue a defense verdict if the it determined that the icy condition was an “open and obvious danger”.  The jury responded affirmatively to that special question and issued a defense verdict pursuant to the trial judge’s instructions.

In rejecting the “open and obvious danger” defense, the Massachusetts Appeals Court held:

“We conclude that the open and obvious danger rule does not operate to negate a landowner’s duty to remedy hazardous conditions resulting from unnatural accumulations of ice and snow, at least where, as here, those hazards lie in a known path of travel.”

It remains to be seen who extensive the impact of the decision will be.  Presumably, defense counsel will continue to use the “open and obvious danger” defense in order to argue that the plaintiff was comparatively negligent.  It may not, under the Soederberg case, be used bar to recovery absolutely.

Copyright © 2010 John J. Sheehan

How often have we all experienced trudging through banks of trampled, dirty snow and streams of frozen ice walking on a sidewalk in our neighborhood or local downtown shopping area? It’s like walking through an obstacle course!

What if you were elderly? A slip and fall on snow or ice could result in a broken hip or other serious injury.

Under current case law, a property owner in Massachusetts is not legally responsible for injuries caused by slip and fall accidents due to snow or ice on the owner’s property unless the slip and fall was caused by an unnatural accumulation of snow or ice. What is and is not an unnatural accumulation of snow or ice is decided on a case by case basis.

The overwhelming case law in Massachusetts is decidedly against the injury plaintiff. Massachusetts judges regularly dismiss cases under the so-called natural accumulation doctrine.

As reported in Massachusetts Lawyers Weekly, this may all change. In Papadopoulos et al. v. Target Corporation et al., the Massachusetts Supreme Judicial Court is ready to consider whether Massachusetts will continue to apply the natural accumulation doctrine.

If the Court abandons the natural accumulation doctrine, this could be a real game changer. Instead of simply dismissing cases because the snow or ice was not created by snow making equipment, Courts will actually look at the conduct of the property owner. Like any other defective condition causing injury, an accident does not mean that the property owner is automatically negligent. If a property owner fails to maintain his property in a reasonable manner — including keeping the walkways and entrance free from snow and ice — then the property owner should be liable if a person lawfully on the property is injured as a result of the defective condition even if the defective condition is snow or ice.

I’ll let you know what the Supreme Judicial Court decides. Until then, be careful out there trudging through the snowy streets of Massachusetts. Remember, Spring Training is only a few weeks away.

Copyright © 2010 John J. Sheehan