Landowners’ Duty of Care is Not Negated By “Open and Obvious” Winter Hazards: Soederberg v. Concord Greene Condominium Assoc., 76 Mass. App. Ct. 333 (2010),
In Soederberg v. Concord Greene Condominium Association, the Appeals Court recently clarified that the “Open and Obvious Danger Rule” does not provide a defense to claims of negligent failure to remove unnatural accumulations of snow and ice, where those hazards lie in a known path of travel. Closing the door on any potential reversal of this holding, the Supreme Judicial Court denied the defendants’ Application for Further Appellate Review on April 28, 2010. Municipalities should take note of this recent clarification because it effectively forecloses the use of an often relied upon defense to unnatural accumulation of snow and ice claims. The Appeals Court’s message was clear – it is the property owner’s responsibility to remove all potential hazards from “known paths of travel.” A property owner cannot rely upon the “Open and Obvious Danger Rule” as a defense in these cases, regardless of how obvious the potential danger may be.
In October 2004, the plaintiff, a seventy-four-year-old retiree, moved into a condominium unit at the Concord Greene Condominium complex. The following January, the Concord area experienced significant snowfall, and it snowed again on February 3 and 4. On the morning of February 5, 2005, a Saturday, the plaintiff left her unit, and went down the walkway to the parking lot to her car. The walkway itself had been cleared of snow and ice, as had much of the parking lot. In the area where the walkway joined the parking lot, however, the plaintiff encountered frozen slush with deep footprints. The plaintiff testified that she recognized the danger and knew that she “had to be especially careful.” Seeing that “it was just a few more steps” before she “got out of the danger zone,” she concluded that she could navigate the patch safely if she used care. Despite these intentions, she fell and broke her hip. The plaintiff testified that there was no alternative route to her car. In response, the property owner suggested that the plaintiff could have returned to her unit and called the twenty-four-hour number listed in the tenant handbook.
The Appeals Court ruled that the property owner could not rely upon the open and obvious nature of the danger to negate its duty of care based on the long-held law in Massachusetts that a property owner owes a duty of reasonable care to all persons lawfully on his premises, including an obligation to maintain the property in a reasonably safe condition, in view of all the circumstances. The Court noted that this duty has long extended to remedying hazards caused by “unnatural” accumulations of snow or ice, despite the fact that unnatural snow or ice hazards are readily apparent. The Appeals Court found it “entirely foreseeable” that people will engage snow or ice hazards lying in well-traveled pathways, even if those hazards are open and obvious. lthough the Court clarified that the “Open and Obvious Danger Rule” cannot be relied upon to preclude liability in unnatural accumulations of snow or ice cases, it is important to note that comparative negligence is still available as a defense to such claims. In that regard, the reasonableness of the plaintiff in encountering the hazard, despite its obviousness, may be considered in weighing any negligence on the part of the plaintiff to diminish liability.