July 28, 2009
By: Sally Roberts
Natural accumulations of ice and snow occurring outdoors on various steps and walkways present several different issues relating to the landowner's liability for slip and fall injuries. Currently, there is split of authority as to whether the occupier of premises owes any duty whatsoever to invitees with respect to the removal of purely natural accumulations of snow and ice. The "no duty" position was originally favored by courts regarding the landlord's duty toward tenants and invitees injured on leased property. Known as the "Massachusetts rule," this doctrine continues to be applied today, not only with respect to landlords, but to ordinary landowners and occupants as well. The apparent rationale for this rule is that hazards created by such natural accumulations are equally as open and obvious to the entrant as to the landowner or occupant of the premises, as well as the sheer impracticalities of enforcing such an affirmative obligation.
In contrast to the "Massachusetts rule," the so-called "Connecticut rule" establishes an affirmative duty on behalf of all landowners to keep their premises reasonably safe from natural accumulations of ice and snow with respect to all areas held open for use by tenants and invitees.[1] This rule, presently incorporated into the Restatement (Second) of Torts,[2] has been generally adopted in a majority of jurisdictions.
The justification for the "Connecticut rule" is that even though an invitee may have knowledge of a dangerous accumulation of ice and snow on the premises, the landowner, by virtue of extending an invitation for entry by the public, should reasonably anticipate that persons may attempt to enter the premises regardless of the presence of such natural hazards. Even if the "Connecticut rule" is applied, the plaintiff must establish that the defendant had either actual or constructive knowledge of the hazardous condition.
Even in those jurisdictions that do not initially impose any duty on the occupant of premises with respect to injuries caused by natural accumulations of ice and snow, there are numerous exceptions that may still produce liability for negligence. For example, whenever the defendant voluntarily undertakes the removal of snow and ice from the premises, he must exercise reasonable care in doing so, and may become liable for any subsequent danger which is created. Thus, if the defendant clears ice and snow from a parking lot or walkway by piling it nearby where it subsequently melts and refreezes back onto the cleared surfaces, the new hazard may be regarded as an unnatural accumulation for which the defendant remains responsible.[3]
[1] See Reardon v. Shimelman, 102 Conn. 383 (1925). In imposing liability against the defendant in a slip and fall injury which occurred upon an icy sidewalk on the defendant's property, the court concluded that an accumulation of ice and snow upon a common approach to a tenement house may imposed 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.
[2] Restatement (Second) of Torts § 343A. "A possessor of land is not liable to the possessor's invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness."
[3] See, e.g., Smith v. Town of Greenwich, 278 Conn. 428, 448-49 (2006). The plaintiff was injured when she slipped and fell on a patch of ice that had accumulated on the defendant municipality's sidewalk and in front of the defendant landowner's property. The ice had allegedly melted from a pile of snow on the defendant's property as warmer temperatures had partially melted and then re-frozen the snow. The court held that the jury was properly allowed to consider photographic evidence to determine whether the pile of snow on the sidewalk was due to natural accumulations of snow, or had been artificially created.
