A Primer on Snow Removal Law
Winter in the New England region can be a challenge for homeowners and businesses alike to keep up with snow removal. However, Massachusetts has certain laws and regulations surrounding shoveling the snow that must be followed. Failure to do so can lead to liability if someone injures themselves on your property as a result of your inaction.
Broadly, the issue of snow removal in Massachusetts is governed under G.L. c. 85 § 5. This statute places a duty on the owner/occupier of the property to use reasonable care in removing snow and ice that accumulates from natural causes. Ice that comes as a product of a melting snowstorm (known as "black ice") is entitled to greater protection than ice that results from the melting of ice or snow, and the property owner can be held liable to remove the black ice.
A common issue during the winter months is the accumulation of snow from plowing that blocks driveways and creates further liability. Section 17B provides some relief in that it clearly states that a party does not have an obligation to remove snow or ice that accumulates on a public way. In other words, you cannot be held liable if as a result of snow plowing or snow removal on a public road, snow is pushed into your driveway. However, if you voluntarily remove the snow and ice from your driveway you have a duty of reasonable care with respect to the public using the road .
While most towns have their own by-laws in place in order to make sure residents remove snow within a certain period of time, those by-laws are not legal authority to create liability. Under Title II of G.L. c. 85 § 5, section 1, there is no obligation to remove or reduce the natural accumulation of ice or snow unless there is an affirmative act to do so. If you decide that you will remove snow from your property, you have a duty to do so with reasonable care, or the same level of care that a prudent person would do when dealing with similar conditions. Whether or not a reasonable standard has been met depends on the specific facts of each case. The more the area is used by others and the more likely that it is a path to a public way, the more likely that a court will hold that the area should have been treated with a higher duty of care.
G.L. c. 85 § 5 was amended in 2015, adding section 3 which provides that a property owner who markets or actively maintains space for parking on their land is liable for injuries to persons on that space if the accident was caused by the owner’s intentional, reckless, or wanton conduct in maintaining the space. However, mere failure to comply with the removal of snow and ice under section 1(a) is insufficient for liability under (c). The burden is high and "requires that the conduct itself be intentional, reckless, or wanton." Estates at Norton, 472 Mass. 818, 821 (2015).
Duties of Landowners
Massachusetts law requires property owners to "cause snow and ice to be removed" from their sidewalks. This requirement covers slopes, steps, and ice that accumulates during a "storm." M.G.L. c. 84 §15. The term "storm" is a bit misleading as it not only covers snow and ice from a single storm, but also any snow or ice which falls or accumulates before or after a storm as well. So if a pedestrian is injured on a sidewalk during a snowstorm, the property owner can be liable if the snow/ice was not promptly removed. Similarly, if a pedestrian is injured on a sidewalk a week or two after a storm as a result of dangerous accumulations of ice or snow, the property owner can be found liable.
Liability of owners of public ways – Cities and towns have a duty to keep their sidewalks free from snow and ice, and are liable for any injuries suffered as a result of a breach of this duty. Thus, as a general rule, cities and towns must keep their sidewalks free of snow and ice, and can be held liable for injury.
Liability of non-owner abutters – It is well-settled law in Massachusetts that in the case of a private property which abuts on a public way, in the absence of an express or implied contract to the contrary, the owner of the property may be liable for injuries suffered by pedestrians as a result of snow and ice that the landowner has failed to remove or spread. "An abutting landowner who fails to remove or strictly to keep its premises free of snow or ice faces liability even if its actions did not cause the ice or snow to form, and even if the formation of the snow or ice constituted a natural accumulation." However, a homeowner is only liable for the dangers they themselves created or increased.
Property Owner’s Duty – Landowners can avoid liability for snow and ice by taking reasonable care to remove the snow and ice within an appropriate time period. The reasonableness is determined by the specific facts of each case; the nature and extent of accumulation, the conditions of the weather, the amount of time since the last storm, etc. The "storm in progress" rule protects landowners from liability for natural accumulations of snow and ice as long as the owner is not negligent in removing snow or ice once the storm has passed. For over half a century, no liability would attach in the case of snow and ice which naturally accumulated on the sidewalk while a storm was in progress. However, now, the Massachusetts Supreme Judicial Court has ruled that an abutting landowner "might become liable if the hazard is not remedied with reasonable promptness." Liability attaches when the owner fails to act reasonably swiftly in removing or spreading the snow or ice, or where the timing of the storm along with the plaintiff’s injury are such that the owner should have had a reasonable opportunity to remedy the hazard. There is no specific time limit imposed by law, and the timeframe must be determined by the "reasonableness" of the efforts, taking into account all surrounding circumstances. In City of Boston v. Lombardi, 346 Mass. 299 (1963), the Massachusetts Supreme Judicial Court held that members of the public could use an injured pedestrian’s testimony that the sidewalk had been impassable for more than three hours prior to the accident to create a jury question.
Penalties – A town by-law may impose a fine on an abutting landowner for failure to remove snow and ice; fines range from $50 to $200 by statute, depending on the town.
Regulations by Towns
Although the common law governs the majority of issues with snow removal in Massachusetts, many towns and cities have their own snow removal laws, ranging from simple ordinances to detailed regulations with specific rules and requirements. Many municipalities even levy fines for violations. For example, the town of Andover, like many other Massachusetts communities, has a bylaw requiring snow to be removed from sidewalks abutting businesses. Some towns, like Quincy, have regulations prohibiting obstruction of public ways with snow removed from abutting property, and other towns, like Bedford, regulate the time when snow may be removed. Still other towns, like Cambridge, have comprehensive regulations on snow removal, requiring, among other things, that snow be removed from sidewalks within 24 hours after the precipitation has stopped, and maintaining a log of such removal. Some towns, like Brookline, prohibit snow from being pushed onto any sidewalk or into any street, parking lot, or other public way, while others, such as Arlington, have similar provisions but apply them specifically to snow removal in residential parking lots. Many towns even go so far as to impose fines on property owners for non-compliance. It is not uncommon for towns to implement a snow removal policy. The town of Wrentham enforces a snow emergency policy, which prohibits parking on any town owned or funded road or lot within the town during any snow emergency. Like many other town ordinances and regulations, this provides a civil enforcement mechanism for the town to clear streets of snow and ice.
Clearing Sidewalks and Roadways
All persons owning or occupying land where a public way in the Town of Westwood is adjacent shall, when any precipitation causes accumulated snow or ice to become hardened, remove or cause the removal of such snow and ice therefrom to the full width of the sidewalk, provided that such snow and ice has ceased falling by 12:00 noon. The snow and ice shall be removed as soon as possible but in no event later than 8:00 p.m. (unless the precipitation has ceased by 5:00 p.m., in which event, snow and ice should be removed no later than 5:00 p.m.). This section does not apply to Sunday or a legal holiday, provided that any snow or ice which accumulates on such holidays shall be removed not later than 8:00 p.m. of the following day.
The owner or occupant, if not the tenant thereof, shall be subject to the penalty provided in Soft Density Option for Traditional Neighborhood Development (TND) Sections 4.1-Roadway Density. This penalty shall not apply to any owner of a space in a driveway. The driveway shall be deemed to be the same as a roadway.
Liability for Snow and Ice Conditions
The common law rule concerning snow and ice in Massachusetts is that it generally cannot give rise to liability for accidents. This is summarized succinctly by the SJC in Mounsey vs. Ellard (1977), where the Court clearly states that "a property owner or possessor need not remove accumulations of snow or ice from its abutting sidewalk or driveway or from its own premises." Furthermore, the Court held that in the absence of a statute or ordinance, a property owner cannot be liable for injuries even if the snow or ice was not "reasonably safe" if it was not removed.
However, this all changed in 2010 with the passage of G.L. c. 86 § 16. This statute holds abutters to a public way responsible for all personal injuries and damages to property resulting from snow and ice conditions on an adjoining public street if that individual failed to remove such snow and ice within three hours of daylight after the end of a snow storm. Abutters are presumed liable for any alleged personal injuries or property damage caused by snow and ice conditions upon the street unless it can be proven that the abutter, "using reasonable care, took the necessary steps either to remove fallen snow and ice or treat the fallen snow and ice so that it was reasonably safe for persons passing on foot or by vehicle." Abutters are shielded from liability if the "storm-in-progress" exception applies. This exception states that an abutter can only be found liable if he or she fails to meet the required standard within three hours after the snow or ice has stopped falling.
This statute creates a clear right of action against abutters for personal injuries or property damage, and significantly alters the obligations to abutters. Importantly, however, the statute is written in such a way that the whole burden is placed upon abutters, and there is no possibility of joint liability.
The SJC has clarified the liability created by G.L. c. 86 § 16 in White v. Spencer (2011). After White, it is substantially easier for injured plaintiffs to bring successful claims against abutters under G.L. c. 86 § 16. The key question established by White is whether the plaintiff’s injuries, or some aspect of them, were caused by the snow and ice on the public way. If the plaintiff falls and is injured while walking on the sidewalk, any injuries or damage caused by the fall are covered by G.L. c. 86 § 16. If the plaintiff slips and falls on an unsafe driveway that is no longer cleared properly, the fact that the unsafe condition is the cause of the injury makes the abutter liable under G.L. c. 86 § 16.
It is important to note that there are two important limitations to G.L. c. 86 § 16. First, there is no liability under G.L. c. 86 § 16 for injuries caused by an abutter’s failure to remove an accumulation of snow and ice from their driveway. There is similarly no cause of action for plaintiffs who slip and fall on their abutter’s driveway while exiting their motor vehicle. When the plaintiff exits the vehicle, takes two steps and slips and falls, that is not covered by G.L. c. 86 § 16. There is also no liability under G.L. c. 86 § 16 for injuries caused by an abutter’s failure to remove an accumulation of snow and ice from a driveway that is no longer functional.
Best Approaches to Snow Removal
Effective snow removal involves planning ahead and implementing best practices to ensure the sidewalks are clear, pedestrians are safe, and you are compliant with Massachusetts’ somewhat unusual snow removal laws (please see above). Failure to comply with the state laws will not get you sued. However, failure to clear sidewalks and/or otherwise maintaining your property properly and reasonably may. In order to avoid the liability associated with falling on your improperly maintained property/driveway/parking lot, it is best to adopt some simple best practices that everyone can follow:
- You should adopt a snow removal plan in advance of a storm that will involve all applicable employees. You should have at least two staff members responsible for snow removal. If all employees will be responsible, then staff should be assigned specific sidewalks to remove snow. This way, you are always prepared. For example, Sally is responsible for street-side sidewalk and zoon dogs are responsible for the back sidewalk. Bob is responsible for the front of the building. Sue is responsible for the two front-sidewalks. Ordered and organized snow removal will greatly reduce the risk of accidents and injuries.
- Make sure that all employees know the snow removal plan well in advance of storms.
- Invest in snow rakes, shovelers, or blowers. Many people think that a snow blower can replace shoveling. Many times it cannot . You should consider investing in a snow shovel and a snow blower. A snow thrower is better than a snow shovel, but not as good as a snow blower. A snow shovel inevitably leaves ice and snow which can promote falls. Accordingly, you should shovel first, then snow blow.
- Be aware of the type of snow you will be dealing with. In general, in the Northeast, snow tends to fall in one of three forms: fluffy (or extremely wet), slush, or ice. The best method of snow removal is fluff snow. Fill up the shovel and throw it. The goal is to not allow the snow to have any time to melt or to harden.
- Slush snow removal requires constant attention throughout the storm. The best method is to shovel some of the snow, then level it. Even if you get only an inch of snow and it is slushy and icy, it has to be removed because people will slip and fall. A proper snow removal plan bears this in mind.
- Ice removal is similar to slush removal. It needs constant attention throughout the storm. Make sure to consider the use of salt (if you chose to begin salting) or other anti-ice chemicals as the weather warms in the late winter.
- In order to effectively use a snow blower on ice, you need to use the snow blower while it is snowing. Do not wait for the snow to build up, but rather keep the sidewalks and driveways free of snow as it falls. It is hard work, but it is the best way to avoid icy sidewalks.
When to Use a Snow Removal Contractor
Hiring professional snow removal services can be a viable option for both businesses and individual property owners. These professional services bring a depth of experience and assure that your property is cleared of snow at the desired point in time. For a business it offers the additional peace of mind that the snow removal team is properly insured in the event of an accident. Contracts with professional snow removal teams should address the following:
Timing
If you have a contracted snow removal provider, one question you will want answered is "When will they be on my property?" Over the years I have had numerous clients call me to report damage to their property because the snow removal services did not come by to clear the snow or they started too early. It is a difficult balance to strike because while the goal is to clear snow so that no ice builds up, there is always a possibility that a fresh snow removal will be followed by new snow or ice from sleet or freezing rain. Your contract should discuss this timing.
Liability Issues
Your contract should address the issue of liability. Who will be held responsible in the event that one of the snow removal services workers causes injury to someone else while on your property? What if a car drives into the parking lot and hits the snow removal apparatus causing an accident?
Waiting List
In severe storms it is possible that your professional snow removal team has too many clients to get to in a timely fashion. Your contract should discuss whether the snow removal team will put you on a waiting list, how you will be notified when it is your turn and how long you will have to wait before getting service.
Effects of Weather on Snow Removal
It is important to note that there are many factors that can impact your duty to remove snow and ice, including this winter, where conditions change almost daily. Heavy wet snow in the early fall is much different than the dry powdery snow in the late winter, but both can create concern for snow removal. Law of the Commonwealth offers some relief from liability for injuries caused by natural accumulation, but does not stop here. G.L. c. 231 § 85, by its express language, only protects you from natural accumulations. If it is your business to maintain passageways, driveways, walkways, paths or sidewalks, you are liable to someone who slips and falls, no matter the weather conditions that caused the hazardous condition to form. Even the greatest snow removal effort will still fall short if the weather conditions go from thaw to freeze. Puddles, small puddles or sometimes a sheet of black ice can form as conditions fluctuate from above freezing to below. Black ice is often the most dangerous ice because it is easy to miss. If you clear a walkway and believe you are done, you will often notice problems only when someone comes to use the area. The black ice formed as a result of your snow-removal efforts. If you have questions about what you should be doing in your business, now is the time to start snow removal plans and take note of snow and ice accumulation on your property. If you have questions about what that means in your situation, now is the time to contact one of our attorneys to sort out your potential liability.
Keeping Abreast of Legal Developments
Keeping up to date with the changes in state or local laws that affect snow removal requirements and liability is important. You can start by regularly checking the websites of your community’s local government or check with the local Chamber of Commerce or Board of Trade. It is also a good idea to consult with an experienced Massachusetts property litigation lawyer.