Is Slip and Fall Liability Expanding?
Plaintiffs’ Bar Sees Promise In SJC Case
By Eric T. Berkman
In the wake of a recent ruling by the Supreme Judicial Court, plaintiffs’ attorneys report a “chipping away” of — the “natural-accumulation” standard in slip-and-fall cases — a development that would expand liability in the area.
Under the “natural accumulation” or “no-duty” rule, property owners have no duty to remove ice and snow hazards unless they are the result of an unnatural accumulation.
But in this month’s McAllister v. Boston Housing Authority decision, first reported in Lawyers Weekly April 19, the SJC commented in the context of a natural accumulation case that state building and sanitary codes which require property owners to remove ice and snow from exterior steps and stairs could be introduced as evidence of a landlord’s negligence in failing to do so. McAllister is Lawyers Weekly No. 10-075-99.
According to plaintiffs’ lawyers, this means that in cases involving exterior steps, their clients can proceed to a jury on a negligence count without ever having to face the hurdle of showing unnatural accumulation a development that could add value to existing cases and move them more quickly toward settlement.
“This is a significant expansion [of liability],” said Dover personal-injury lawyer Chris A. Milne, who represented the plaintiff in McAllister. “In the past, no higher-level court ever indicated that you could go to a jury on straight negligence with a natural accumulation. Now you can, in a situation where there’s a code violation, if it occurs on exterior stairs and steps.”
Douglas K. Sheff of Boston added that, at least in stair-and-step situations, “lawyers will be able to more fairly represent injury victims based upon an evaluation of what is reasonable as opposed to what was natural versus unnatural.”
Defense lawyers, however, asserted that plaintiffs’ lawyers were misreading the SJC’s language.
“What they’re claiming is new law is not new law,” said Stephen J. Gill of Boston, noting that his client, the defendant landlord in McAllister, had actually stipulated to the duty to remove ice and snow in the lease. “[Milne] gets to a jury because [his client was] a tenant. The duty was created by her tenancy. If she was a visitor, there wouldn’t be any duty to remove a natural accumulation. That was never an issue.”
Incidentally, in McAllister the SJC ruled against the plaintiff on the merits of her negligence claim, as well as her warranty-of-habitability and quiet-enjoyment claims.
Harmless Error
Plaintiff Geraldine McAllister was a resident of property owned by defendant Boston Housing Authority.
She slipped and fell on ice which had accumulated on the exterior stairs of the property. The plaintiff sued the defendant in Superior Court alleging negligence, breach of the implied warranty of habitability, breach of the covenant of quite enjoyment and violation of the lease. The lease required the landlord to keep the premises free of ice and snow.
After the plaintiff presented her case, the defendant successfully moved for a directed verdict on all but the negligence claim, which went to a jury.
At trial, the defendant acknowledged its duty to remove snow and ice but contested its negligence with respect to the duty. The jury ultimately found for the defendant.
The plaintiff appealed the directed verdict on the warranty- and lease-based counts, as well as the jury verdict on the negligence count.
According to the plaintiff, while the trial judge instructed the jury on relevant portions of the codes, which require a landlord to keep all exterior stairways “free of snow and ice,” she erred by refusing to allow the plaintiff to introduce building- and sanitary-code violations as evidence of the defendant’s negligence.
The SJC agreed, stating that “the code provisions established a duty on the part of the defendants to remove snow and ice.”Nonetheless, the SJC termed this “harmless error” and refused to grant a new trial.
Expansion Of Liability?
Milne maintained that even though his client lost on the facts, the court’s language in acknowledging that the code provisions establish an independent duty for landlords to remove snow and ice is very significant.
“What this means is that a plaintiff can now get to a jury with a natural-accumulation case under the theory of negligence and violation of statute,” he said. “I have three or four snow-and-ice cases on steps and stairs, and after this decision, their value is substantially increased. Now they won’t be faced with a summary judgment motion on the basis that they can’t prove unnatural accumulation. That’s out the window.”
John J. St. Andre of Framingham, who submitted an amicus brief in McAllister on behalf of the Massachusetts Academy of Trial Attorneys, was not sure whether this concept extended beyond the landlord-tenant situation, but viewed it as a plaintiffs’ victory nonetheless.
“This case may very well have chipped away at the no-duty rule in the landlord-tenant context,” he said. “What the opinion does is give injured tenants something they can point to in a case which may very well reflect the court’s determination that the common law should adapt to the times and do away with the no-duty rule, at least in modern-day landlord-tenant housing situations.”
Boston premises-liability lawyer Jeffrey A. Newman added that “this has been long in coming because the state sanitary code and building code have been clear as crystal about the fact that premises owners have to make sure they clear away the means of egress. … So I think it’s a very sound decision and I think it means that when landlords don’t take care to clear away snow and ice from those areas whether natural or unnatural, they’ll be held responsible for injuries stemming from their not doing so.”
Patrick T. Jones of Boston agreed that this decision “clarifies” things and “will promote the resolution of these cases,” but cautioned that it’s limited to a small subset of cases.
“They’re still in the narrow area of exterior stairways,” he said. “It’s not as broad as finding a code violation that someone broke by not having a parking lot shoveled, or violation of a lease that says you should have the lot shoveled. I still think part of the inquiry will still be whether it was natural or unnatural accumulation [for most cases]. And I think the natural progression in this area of the law is clearly to limit and reject novel arguments of natural accumulation.”
But at least in the area of stairs and steps, said Newman, this decision should help bring about a quicker, fairer resolution of cases.
“I think [these cases] should be easier,” he said. “And those that don’t settle will get to a jury. What jurors will do depends on each and every case, but the fact that they get to a jury will enhance the probability of a settlement in many of them.”
Aniello F. Siniscalchi of Springfield agreed.“This is definitely something plaintiffs can raise in terms of attempting to settle a case,” he said. “Because if it does go in front of a jury, all factors being equal, the jury may find that [the stairs] weren’t properly cleaned up.”
Opposing View
Defense attorneys, however, were unpersuaded by plaintiffs’ lawyers’ reading of the case.
“This decision didn’t expand liability at all,” said Allan E. Levin of Quincy, maintaining that the defendant’s duty stemmed from the fact that it was stipulated in the lease. “If there’s no lease provision, you’re still going to have to show unnatural accumulation.”
Susan E. Sullivan of South Easton agreed.“I don’t think the court is too clear at all in making a separation between what’s in the sanitary and building code and the duty that the housing authority created for itself by putting the language in the lease,” she said. “If they hadn’t [stipulated to their duty] in the lease, there wouldn’t be this discussion at all. … So I don’t think [you’ll see more of these cases getting to a jury without a showing of unnatural accumulation]. I think the lease was the real problem for this defendant.”
Emil G. Ward of Boston, who represents landlords, had no real opinion on the no-duty debate, but was gratified to see the SJC decline to expand the warranty of habitability to cover snow and ice on exterior steps.
“For me, the warranty has dealt much more with the apartment and its facilities itself,” he said. “The SJC over the last couple of years has refused to expand it beyond those core concepts. … Here you do have the code provision requiring the cleaning of the steps, but I agree with the traditional view that the warranty is much narrower than the plaintiff wanted it to be.”
Milne accepted the SJC’s decision on the alleged warranty violation at face value, but disagreed with defense attorneys’ contentions regarding the court’s language on the codes.
“This case was presented to the jury as a natural-accumulation case,” he said. “At the trial-court level and in the plain language of the SJC’s decision, they clearly stated that the code itself created a duty. So I ask lawyers to look at the decision and if their position is otherwise, to just try and explain the plain language of the decision where the court says the code creates the duty.”
