Condo Media - February 2011 - 26

FEATURE

by Nena Groskind

The End of the “Natural Accumulation” Defense
he Massachusetts Supreme Judicial Court (SJC) last year struck down the “natural accumulation” (of snow and ice) defense — a legal theory that Massachusetts community associations have long used to fight slip and fall suits filed against them. As a result of this decision, association attorneys predict, many suits that wouldn’t have been filed in the past (because the plaintiffs’ chances of prevailing were slim) will be initiated. And, many suits that would have been dismissed summarily will go forward, increasing the liability risks of condominium communities. We offer two perspectives on how this new legal framework is affecting contract negotiations between association boards, which want to reduce their liability exposure, and snow removal contractors, who don’t want to increase theirs.

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Andrew Brooslin, Esq. and John Shaffer, Esq., associates Marcus, Errico, Emmer & Brooks, PC Like many community association attorneys, Brooslin and Shaffer are advising their clients to add language to their snow removal contracts limiting as

much as possible their potential liability for slip-and-fall claims. “There is no way you can contract yourself out of all liability,” Shaffer emphasizes. “The goal is to protect [yourself] as much as you can,” by detailing the contractor’s responsibilities, monitoring the company’s performance, and requiring the contractor to indemnify the association for any claims resulting from the contractor’s failure to fulfill the contract provisions. Indemnification provisions aren’t popular with contractors, to say the least, and Shaffer acknowledges that the protection they provide communities “is only as good as the assets of the contractor.” With or without indemnification, Shaffer and Brooslin emphasize, the critical point for association boards is to make sure their contractor is adequately insured and that the association is named as an additional insured on the contractor’s policy. In addition, the attorneys suggest: • Make the contract language specific and detailed; itemize the contractor’s responsibilities and clearly describe the scope of the work.

• Establish clear benchmarks against which the contractor’s performance can be measured. • Create “triggers” in the contract, requiring the contractor to respond automatically within a specified time (and without a request from the association) when snowfall accumulation reaches a specified level. • Include language making it clear that the contractor will provide additional snow removal and ice treatment services (for an added fee) at the association’s request. • Require the contractor to notify the association if the company is unable to provide the contracted services for any reason, and make the contractor responsible for paying for the substitute service the association obtains from another source. • Monitor conditions on the ground during a storm and the contractor’s performance. Document when the plow arrives, how often it returns and how effectively the snow is cleared and the ice treated. Shaffer

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CONDO MEDIA • FEBRUARY 2011
Condo Media - February 2011

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