Premises liability and slip-and-fall in Massachusetts — including snow and ice

Massachusetts premises law changed in one decision. Before 2010, a landowner was liable for "unnatural" accumulations of snow and ice and not for natural ones — a distinction that turned cases on whether a plough had touched the parking lot.

Papadopoulos v. Target Corp., 457 Mass. 368, 370 (2010), ended it: "We now abolish the distinction between natural and unnatural accumulations of snow and ice, and apply to all hazards arising from snow and ice the same obligation of reasonable care."

The second thing to know about these cases is the 30-day notice statute — and the fact that, for snow and ice, it is not the hard bar it is usually described as.

What the claim is

You were hurt on someone else's property because it was in an unsafe condition.

Where the right comes from

Common law negligence, with the snow-and-ice standard from Papadopoulos and the notice provisions in G.L. c. 84.

What a plaintiff has to prove

1. The defendant owned or controlled the property;
2. A duty of reasonable care to a lawful visitor;
3. An unreasonably dangerous condition, which the defendant knew of or should have known of;
4. Breach — failure to remedy it or warn of it;
5. Causation; and
6. Damages.

Massachusetts abolished the old invitee, licensee and social guest categories: a landowner owes reasonable care in the circumstances to all lawful visitors. Only trespassers are treated differently, and to a trespasser the duty is to refrain from wilful, wanton or reckless conduct.

Notice of the condition is the element that decides most cases. The plaintiff has to show the defendant knew or should have known — through evidence of how long the hazard had been there, a recurring problem, or the absence of any inspection routine.

The 30-day notice, and what it does

G.L. c. 84, § 18 requires a person injured by a defect in a way to give notice within thirty days to the county, city, town or person obliged to keep the way in repair, stating the injured person's name and residence and the time, place and cause of the injury. Suit must then be brought within three years.

Section 21 extends that regime to actions against private property owners where the injury arose from a defective condition of their premises or an adjoining way "when caused by or consisting in part of snow or ice." Notice may be given by posting it conspicuously on the premises and leaving it with an occupant.

Now the part that is routinely stated wrongly. Both sections end with the same sentence:

Failure to give such notice for such injury or damage sustained by reason of snow or ice shall not be a defense under this section unless the defendant proves that he was prejudiced thereby.

For a snow-and-ice claim, missing the 30 days is not an automatic bar. The defendant must prove it was prejudiced by the lack of notice. That is a burden, and it is often not met where the condition was documented, photographed, reported to the property manager, or recorded on video.

Two qualifications. The prejudice escape applies to snow and ice, not to a claim founded on some other defect in a way. And § 18 forgives inaccuracies in the notice — a wrong address or an imprecise time does not invalidate it where there was no intention to mislead and the recipient was not in fact misled.

None of that makes the notice optional. Send it inside 30 days. But a claimant told their case is dead because the letter went late should read the last sentence of the statute.

The public-way damages cap

Section 15 allows recovery against a county, city, town or local water and sewer commission for injury from a defect or want of repair in a way — but caps it at one fifth of one percent of the entity's state valuation, or $5,000, whichever is less.

Five thousand dollars is the practical ceiling on a municipal sidewalk claim. It is also why the identity of the responsible party matters so much: a fall on a sidewalk abutting a private business may be a § 21 claim against the business, uncapped, rather than a § 15 claim against the city.

Section 15 also bars any action by a person whose vehicle and load together exceeded six tons.

How long you have to file

Three years under G.L. c. 260, § 2A.

Thirty days for the c. 84 notice.

Two years for presentment against a public employer under G.L. c. 258, § 4, with suit within three.

What has to happen before you file

The 30-day notice, for snow, ice or a way defect. Presentment, against a public defendant. Nothing else.

What the claim pays

Medical expenses, lost earnings, pain and suffering, disfigurement and impairment.

Twelve percent prejudgment interest from the date of filing, under G.L. c. 231, § 6B.

Reduced by comparative negligence under G.L. c. 231, § 85, and barred entirely past 50 percent — which matters here because defendants argue the plaintiff chose to cross an obvious patch of ice.

Capped at $20,000 if the defendant is a charity under G.L. c. 231, § 85K, unless the activity was primarily commercial in character. A fall at a non-profit hospital, university or church runs straight into this.

Capped at $5,000 on a public-way defect claim under § 15.

No punitive damages, and no attorney's fees, absent a statute.

Who can be sued

The owner. A tenant or occupier in control of the area where the fall happened — which the lease usually allocates. A property manager. A snow-removal contractor, on its own negligence, and this defendant is often the one with the useful insurance. A municipality, subject to presentment and the § 15 cap.

Identifying who was responsible for the specific area is the first task in any Massachusetts slip-and-fall, because the answer changes both the defendant and the ceiling.

Common defenses

• Reasonable care was taken — the modern standard after Papadopoulos, which asks what the owner did, not what kind of accumulation it was.
• The storm-in-progress doctrine, which gives an owner a reasonable time after a storm ends before removal is required.
• Open and obvious danger. In Massachusetts this negates the duty to warn, but a landowner may still owe a duty to remedy a hazard it should anticipate people will encounter anyway.
• No notice of the condition, actual or constructive.
• Comparative negligence.
• Lack of the c. 84 notice, subject to the prejudice requirement for snow and ice.
• The charitable cap, or the § 15 cap.
• Limitations.

What people get wrong

"Natural accumulation" is no longer a defence. Papadopoulos abolished it in 2010, and older advice still circulates.

Missing the 30-day notice does not automatically kill a snow-and-ice claim. The defendant has to prove prejudice.

Open and obvious is not a complete answer. It removes the duty to warn. It does not always remove the duty to fix.

A fall is not proof of negligence. The plaintiff must show an unreasonable condition the owner knew or should have known about.

A charitable defendant may cap the case at $20,000 — which changes the value of the claim far more than any liability argument.

Where it came from

For over a century Massachusetts distinguished natural from unnatural accumulations of snow and ice. The theory was that New England weather is a common hazard and a landowner should not answer for what the sky delivered. In practice it produced litigation about whether a snowbank had been moved, how many freeze-and-thaw cycles had passed, and whether a plough's pattern made a natural drift into an unnatural one.

Papadopoulos swept that away and replaced it with the ordinary duty of reasonable care, noting that the distinction was difficult to apply and produced results with no relation to whether the landowner had behaved reasonably. The decision applies to conduct before and after it was issued.

The c. 84 notice provisions are older still, written for a world of horse-drawn carriages and town highway surveyors — which is why § 15 still bars claims by anyone whose vehicle and load exceeded six tons, and why the damages cap sits at a figure fixed long ago. The Legislature softened the notice requirement for snow and ice by adding the prejudice clause, leaving a trap that is real but not absolute.

Common questions

How long do I have to sue after a slip and fall in Massachusetts?

Three years. But send the 30-day notice for snow, ice or a defect in a way.

Is the property owner responsible for natural snow and ice?

Yes. Papadopoulos abolished the natural-versus-unnatural distinction in 2010 and applies the ordinary duty of reasonable care.

What if I missed the 30-day notice?

For a snow-and-ice claim, the failure is a defence only if the defendant proves it was prejudiced by it.

The hazard was obvious. Do I still have a claim?

Possibly. Open and obvious removes the duty to warn, but a landowner may still owe a duty to remedy a danger it should expect people to encounter.

Can I recover attorney's fees?

No, absent a statute.

I fell at a non-profit hospital. Is my claim limited?

It may be capped at $20,000 under the charitable immunity statute, unless the activity was primarily commercial in character.

Where these rules live

• Mass. R. Civ. P. 8 — General rules of pleading
• Mass. R. Civ. P. 26 — General provisions governing discovery
• Mass. R. Civ. P. 34 — Producing documents and entering onto land for inspection
• Mass. R. Civ. P. 36 — Requests for admission
• Mass. R. Civ. P. 56 — Summary judgment
• Summary judgment in Massachusetts