The “natural accumulation” rule meant that Massachusetts property owners were not liable for injuries resulting from the natural accumulation of snow and ice on their properties. For example, if a snowstorm dropped a foot of ice and snow on a Massachusetts property, the property owner could not be held liable if a visitor slipped and fell on that snow because it was a “natural accumulation.”

Despite over 100 years of litigation, determining what was natural accumulation and what was some artificial alteration of the natural accumulation was difficult. Indeed, in the Target case, the Court explained that the distinction between natural and unnatural accumulation, “has proved difficult to apply because virgin snow that falls on a heavily trafficked walkway, driveway, or parking area is soon changed by the tramping of feet, the rolling of tires and the passage of time.”

The natural accumulation rule was such an outlier that, in other jurisdictions, it was referred to as the “Massachusetts rule.” All of the other courts in New England had rejected it and imposed a duty of reasonable care on property owners.

In Papadopoulos, Massachusetts finally joined those other jurisdictions.  Now, a property owner owes the same duty of reasonable care regarding dangers arising from snow and ice on his property that he owes for all other hazards to lawful visitors on his property.  What is reasonable depends on the circumstances of each case, but the Court described the duty of reasonable care in this way:  “The snow removal reasonably expected of a property owner will depend on the amount of foot traffic to be anticipated on the property, the magnitude of the risk reasonably feared, and the burden and expense of snow and ice removal. Therefore, while an owner of a single-family home, an apartment house owner, a store owner and a nursing home operator each owe lawful visitors to their property a duty of reasonable care, what constitutes reasonable snow removal may vary among them.”

The new reasonable care standard is a much clearer rule than the old “natural accumulation” rule. The natural accumulation rule was unclear and therefore difficult and expensive to apply. Furthermore, property owners seldom did not rely on it, given the requirements of the State Building Code, and the consensus that one should keep one’s property accessible to visitors.

Now, property owners and homeowners must take care to keep their properties reasonably accessible to all visitors under all weather conditions – and not treat snow and ice differently from other hazards on their property.

Attorney Sherwood Guernsey represent Glenn Gardens Associates, and together with local counsel , attorneys Peter Neger and Gillian Epstein from Bingham McCutchen in New York, they were successful in convincing the Federal Court that the whistleblower’s complaint should be dismissed. 

The whistleblower sought over $10 million dollars from Glenn Gardens, claiming that it had improperly obtained housing voucher payments from the Department of Housing and Urban Development (“HUD”).  Agreeing with Glenn Gardens’ arguments, the court threw out the complaint, concluding that the false claims act barred the whistleblower’s claims, and that the whistleblower was not an “original source” under the False Claims Act.

The Guernsey firm has represented Glenn Gardens since 2002  and  is very familiar with the issues facing landlords of major residential real estate.  Please contact Mr. Guernsey for further information: <sherwood@sglawoffice.com>.

We focus on adding value to your decisions. Just regurgitating a contract is not sufficient. If the issue is a new transaction, we are “deal-makers” not “deal breakers”. We know that strategic thinking is key, an attribute we call “forward thinking”. We review your facts and help you think forward to protect you against issues that might arise in the future, with common sense, practical solutions. It is this “forward thinking” that will reduce tomorrow’s problems, protect your interests and save you money and aggravation after the documents are signed.

Where a small business is involved, we will also be protective of the interests of the majority owners, preparing stockholder agreements and, where necessary, estate plans to ensure continuity of the business and a distribution of the family assets in a meaningful way.