The first big snowfall of the year dumped historic amounts of the white stuff on a large part of the country in February 2010, leaving many to contend with the cold, messy, nightmare of shoveling, shoveling, and shoveling some more.
Oh, but the beauty of the powder glistening in the moonlight! The flakes dancing so delicately across the earth! So lovely, so magical ... and so wet, slippery, and dangerous. As an insurance person, I see snow as representing icy roads, wet floors, and snow-concealed hazards. Consequently, I also think of accidents, injuries, and claims.
Natural Accumulation or Neglect?
While there are an abundance of snow- and ice-related auto accidents during the winter months, there are quite a few people-related accidents, as well. Slick surfaces on sidewalks, outdoor steps, and parking lots can be very hazardous for pedestrians, and snowy conditions are some of the most common causes of slip-and-fall accidents. Fortunately, most of these mishaps result in little more than a sore backside and a red face.
Sometimes, though, a fall can lead to devastating injuries. In such cases, many injured people look to the owner of the property on which they fell, stacks of hospital bills in hand. Most kinds of negligence will be covered under a homeowner's insurance policy, and, if the negligent acts causing injury take place at a business, liability is likely to be covered under a business liability policy. So surely the neighbor who failed to shovel his sidewalk for three days straight or the store owner who didn't bother to mop up his storefront slush should be on the hook for such negligence, right? Well, no. In fact, it is quite possible the property owner will not be found legally liable for any such fall on his property.
In many states, this is due to the so-called "natural accumulation" rule, under which a property owner has no duty to remove or warn of the dangers of natural accumulations of snow, ice, and freezing rain. He also is not liable for injuries caused by natural accumulations of snow. Generally, this rule applies to private homeowners, business owners, and municipalities alike.
The duty to clear ice and snow varies by state, and there are those states in which a property owner has a responsibility to clear the snow at least enough for reasonably safe passage for anyone who might walk onto their property (except a trespasser). But in those states that follow the natural accumulation rule, a property owner can virtually eliminate liability entirely by simply leaving the snow as is.
One basis for the natural accumulation rule is that natural accumulation of ice and snow is open and obvious. Thus, owners or possessors of property should have a right to expect that anyone who enters will recognize the danger and proceed accordingly. There is an exception to the natural accumulation rule, however, when a property owner knows or should know that ice and snow could create a more dangerous condition than what the entrant could anticipate. In that situation, the owner is negligent if he fails to remove the ice and snow.
Under the rule, a person seeking to prove liability must show that a defect in the condition of the property -- say, a blocked drain or poor grading around the building -- was the source of the accumulated snow or ice. A property owner also may be liable if he creates an "unnatural accumulation" in his efforts to remove the snow or ice. For instance, if a store owner piles the snow in the store parking lot in the course of removing it from the store entrance, the pile of snow becomes an unnatural accumulation. Therefore, if that pile of snow later melts and forms ice, the owner can become liable for any injuries that result.
The impact of the natural accumulation rule does not cease when one moves indoors. In fact, a property owner has no duty to remove snow or water tracked inside a building from natural accumulations of snow, water, or ice outside. Property owners and business operators may still be liable, however, for injuries resulting from an accumulation of ice, water, or snow if it can be shown that the means of ingress or egress to the store was unsafe for any reason other than a natural accumulation. So, if a customer can establish that a property owner did not properly illuminate the premises and the customer fell on ice because he could not see it beneath his feet, the owner still could be liable.
Liability could also exist if a customer can establish that the accumulation of water, snow, or ice was unnatural because of the design, construction, or maintenance of the building or premises. Courts have held businesses liable for injuries resulting from water that was tracked in where the materials used in the floors at issue were deemed particularly slippery and dangerous when wet.
One should keep in mind that although there may not be liability in these states for injuries of others caused solely by natural accumulation, some cities and villages still have ordinances in place that require residents to make every attempt to keep sidewalks clear and impose subsequent fines on those who do not. While such ordinances are certainly valid exercises of a municipality's police power, they do not actually impose a legal duty on the property owner to clear snow and ice, and violating the ordinance is not evidence of an owner's negligence.
In those states that do not follow the natural accumulation rule, one who injures himself on a natural accumulation of ice or snow will still need to establish that the property owner knew -- or at least should have known -- of the dangerous condition and that the owner's actions or inaction created an unreasonable risk of harm. This notice requirement does not apply if the dangerous conditions are reasonably foreseeable given the nature of the owner's business, or if the owner himself actually caused the condition. Also, the property owner will not be liable for snow- or ice-related injuries if he does not have notice of the condition or if he has not had a reasonably sufficient time to address it. Of course what amount of time is "reasonably sufficient" will be a factually-based determination.
So, it seems the question remains: To shovel or not to shovel? Knowing whether one's state is a natural accumulation state is a good place to start. After that, it is truly a property owner's choice. Risk being the "bad neighbor" who doesn't shovel? Risk inadvertently making things more dangerous by shoveling? Risk being fined for not shoveling? It may be a tough call to make. To be sure, though, shoveling is not without its own risk of liability, and that is the cold/hard/messy/wet/slippery truth.
Kelly B. Maheu is the assistant editor for FC&S. She can be reached at firstname.lastname@example.org.