Condo Media - December 2009 - 32

COVER STORY But when you factor in the minimal clean-up costs, Churchill says, coated salt is actually less expensive than the sand-salt mixture. His company uses a street sweeper to clean up the sand residue in communities using the sand/salt mix. In communities using the liquid de-icer or salt coated with it, he says, “We don’t even bring the sweeper out; the roads are that clean.” As a result, Churchill often offers a reduced price for spring clean-up to communities using the liquid and coated-salt products. More boards are beginning to understand that the cost-benefits analysis tilts toward liquid and coated-salt de-icers, Churchill says, but many can’t get past the initial perception that the sand-salt mix appears to be the least expensive alternative. “I’ll go to a community to make a presentation and park my truck next to rows of Lexus and Mercedes [vehicles]. But when I get inside, everyone is pounding on the table, demanding [the lowest price.] I don’t understand it,” Churchill admits. “This is the most valuable asset they own; safety ought to be a paramount concern, but they’re still demanding Kia prices.” Churchill finds this mindset as bewildering as it is short-sighted. While the financial and environmental advantages of liquid de-icers and coated salt are significant, he believes, risk management considerations alone argue forcefully for those alternatives. “Everyone is concerned about slip-and-fall” litigation, he says. “So anything you can do to reduce those risks is for the better.” (see sidebar at right.) The bottom-line, for him: “If you get down to black pavement or sidewalk (which is what the liquid and coated-salt de-icers can do), no one is going to slip on that surface.” CM Nena Groskind is vice president of eContentplus, providing editorial content for Web sites, print and electronic newsletters and magazines. Slip-and-Fall Liability Is Limited in Massachusetts — for Now It is hard to talk about snow or even think about it without also worrying about the liability risks related to it. While some may dream of a White Christmas, community association boards and their attorneys are more likely to have nightmares about being sued by residents who slip and fall. Although Massachusetts is known for its aggressive (and some contend, lopsided) consumer protection laws, community associations and landlords enjoy something of an edge in the slip-and-fall arena over owners and tenants. Massachusetts recognizes the “natural accumulation of snow” as a defense against slip-and-fall claims — one of the few states to do so. The basic idea, supported by many Bay State court decisions, is this: Snow falls in New England. Anyone who lives or visits here should be aware of that and should recognize the obvious risks involved in walking on snow-covered or icy surfaces. What this means, explains Andrew Brooslin, an associate in the Massachusetts law firm Marcus, Errico, Emmer & Brooks, is that even if a community association has an affirmative obligation to clear snow and ice, the failure to do so does not always translate automatically into liability if someone slips and falls. association has exercised a “reasonable standard of care” in responding to a snowfall. An owner who slips on an unplowed driveway during a raging snowstorm could not easily hold the association responsible, Brooslin explains; but if the driveway had not been plowed several hours after the storm ended, the association would have a harder time defending against that claim. The Massachusetts courts applied this legal framework recently in Barrasso v. Hillview West Condominium Trust. Taking his garbage out after a major snow storm, the plaintiff, Barrasso, found access to the dumpster blocked completely by a mound of snow a plow had pushed against the receptacle. In trying to climb over the snow bank, Barrasso fell and broke his wrist. A lower court, citing the “natural accumulation of snow,” granted summary judgment to the association, but the Appeals Court reversed, finding that the hazard was created by the snowplow. “We conclude that under any reasonable interpretation, when snow is compacted by a plow, it is not a ‘natural accumulation’ within the meaning of relevant cases,” the court concluded. “The law of the Commonwealth recognizes that snow falls in Massachusetts and that it is no person’s fault,” the court agreed. “But the law does not immunize from the requirement to take reasonable care those who, while removing snow, create conditions in their property that may be dangerous.” A concurring opinion noted that the court might have ruled differently had the association raised in its defense the obligation of the owner to exercise reasonable care in avoiding an obvious hazard. “Several facts suggest that the danger of climbing over such a snow bank immediately after a major snowstorm was an obvious one to persons of average intelligence,” wrote Justice R. Marc Kantrowitz. “While it is difficult to imagine how, once raised, [this argument] would not prove successful,” Justice Kantrowitz added, “I leave that for another day.” Two-Part Test Massachusetts courts use a two-step analysis in assessing liability. The first question is whether the snow “accumulated naturally” or was altered in some way, creating a man-made rather than a natural hazard. A patch of ice formed by snow that melts and re-freezes might qualify as “natural,” Brooslin says; if the water came from snow that melted in a broken or misdirected downspout, however, the “natural accumulation” argument would be harder to defend. The second question courts ask in their two-part liability analysis is whether the CONDO MEDIA • DECEMBER 2009

Condo Media - December 2009

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