The Papadopoulos case involved a man who broke his pelvis after slipping on ice in front of a Target store. While the lot had been cleared of snow, a pile had been plowed onto a median strip, and was the origin of the ice that caused his fall. A lower court judge dismissed Papadopoulos’s suit, stating that it did not matter whether the ice had fallen from the pile, or had melted and refrozen; either way, it was a natural accumulation for which the property owner could not be held liable.

In reversing the lower court’s dismissal, the SJC applied the same rule to snow and ice cases as exists for other property hazards—the duty to “act as a reasonable person under all of the circumstances including the likelihood of injury to others, the probable seriousness of such injuries, and the burden of reducing or avoiding the risk.” The Court remanded the case for reconsideration under the new standard, and said that the new standard will apply retroactively to pending lawsuits.

Both the plaintiff and defense bars agree that there will be an increase in litigation against property owners as a result of this new standard. Plaintiffs will now be able to pursue claims against property owners who did not reasonably clear their property of snow and ice, and property owners (generally through their insurer) will have to defend their actions to a jury, instead of getting cases involving natural accumulations dismissed early in litigation. This will undoubtedly translate to higher insurance premiums for property owners. The ultimate question of how a “reasonable” person would have responded to an accumulation of snow and ice on their property is one that will have to be developed over time, by juries, as the cases arise.

If you are a property owner, it is essential that you take steps to ensure prompt and thorough plowing or snow removal on your premises, and inspect the property regularly for maintenance. If you contract with a snow removal company, make sure that company is insured and keeps a record of when and how they remove snow and/or ice from your property. Finally, if there are areas of your property that are difficult or impossible to maintain in a safe condition, place warnings signs in the area to put visitors on notice of the hazards.

Massachusetts Courts have recognized the de facto parent doctrine to help address this situation. A de facto parent is literally a parent in fact, though not at law, and might have the right to establish visitation with the child if it is found to be in the child’s best interest (1). In order to establish de facto parentage, it must be proven that the adult lived with the child and participated in the child’s family with the consent and encouragement of the legal parent, performed caretaking functions at least as great as the legal parent, shaped the child’s daily routine and addressed his or her developmental needs, disciplined the child, provided for education and care, and served as a moral guide.

Once a party is found to be a de facto parent, then visitation may be sought; but the Court must still be convinced that such visitation is in the child’s best interest and that the child will suffer psychological harm if visitation is not permitted. Also, a de facto parent does not possess the same rights as a parent who possesses legal custody, such as the right to make important life decisions for the child or consent to medical treatment.

The burden of establishing de facto parentage and visitation is extremely high, and for good reason. An otherwise fit legal parent is afforded constitutional protections and extreme deference in determining what is in his/her child’s best interests, and may have compelling reasons for terminating a child’s relationship with an adult caretaker—reasons that may also have marked an end to the adults’ relationship.

If you have questions regarding the de facto parent doctrine or your rights as a parent, please contact us for a consultation.

(1) A de facto parent is never someone paid to provide caretaking functions.

The rule in Massachusetts to determine liability in cases where there has been a slip and fall on snow and ice has not changed in over one hundred years. The central question asked by the courts is whether the fall occurred due to a natural or unnatural accumulation of snow or ice. If the fall was caused by an unnatural accumulation, liability may exist. But while the rule appears straightforward, the large body of case law that exists on this topic shows that how the courts answer this question is somewhat unpredictable and confusing—Was the snow shoveled in a reasonable manner given the location and traffic around the premises? Did the ice form due to water dripping from a gutter or roof overhang? Should the owner have salted in addition to shoveling?

However, the Supreme Judicial Court recently heard arguments on a case that may alter the way these cases are evaluated. In accepting the case of Papadopoulos v. Target Corp., the Court specifically asked the parties to address the issue of whether the distinction between a natural versus unnatural accumulation of snow and ice should continue to be a factor in determining the negligence of the property owner. In Papadopoulos, the plaintiff fell on ice covered with dirt and sand when exiting a Target store in Danvers. He fractured his hip in the fall, and subsequently sued Target and the snow removal company that had cleared the parking lot that day.

The trial court granted summary judgment to the Defendants, stating that the ice either had fallen from a pile of plowed snow, or had melted and refroze. In either case the Court said that the plaintiff fell on a natural accumulation. In accepting this case for review, the SJC has struck fear in the hearts of some property owners that a change in the law may increase their exposure to liability.

Indeed, if the natural versus unnatural accumulation rule is abandoned, Massachusetts could adopt a “reasonable care” standard, as advocated by the Massachusetts Academy of Trial Attorneys in an amicus brief filed in this case. This analysis would place a greater burden on property owners to continuously inspect their property and to ensure employees or agents regularly address any accumulation of ice or snow. While, of course, safety is a goal everyone should strive for, such a burden would be complicated, subjective, and expensive, particularly in this part of the United States. Such a rule would also expose such property owners to much greater liability. The defendants in this case rightfully argue that adoption of a “reasonable care” standard in snow and ice cases would impose an unreasonable maintenance burden on many property owners. The Defendants cite the example of a plowed strip mall parking lot—the snow must go somewhere, and asking property owners to monitor the freezing, melting and refreezing of snow piles, the change in their shape due to tumbling or third party interference, is unreasonable.

How the Court rules in this case may impact your obligations with respect to the maintenance of your property. Whether you are a business person, a landlord, or simply a homeowner, this decision is one to watch.

Of course, as a good teacher, I answer these questions with one of my own: Were you issued a student handbook upon orientation? The answer: Yes. Next question: Did you read it? The usual answer: Not really.

Perhaps it is unsurprising that an eighteen-year-old would care little about the information conveyed in a student handbook. However, the handbook governs the students’ relationship with the university, and contains provisions that impact their freedom of speech and congregation, right to privacy and due process rights in disciplinary proceedings. In addition, the handbook typically explains the rights of students (and their parents) to access, inspect and request changes to their educational records under the Family Educational Rights and Privacy Act.

The student handbook of your child’s university or college may very well be the first “contract” they enter into as adults. Most schools today require students to sign a document at freshman orientation indicating that they have read and understand the student handbook. In Massachusetts, courts have held that the student handbook has the force and effect of a contract.

More likely than not, your child will never have to worry about the provisions set forth in the student handbook—but what an excellent opportunity for parents to teach their kids—now adults—an essential tenant of contract law: read before you sign.

In taking these necessary actions, however, both employers and landlords should be careful not to expose themselves to potential liability, particularly in the area of discrimination law. Discrimination cases can yield very large awards, and are more prevalent during difficult times such as these.

While no strategy can prevent all lawsuits, sound planning is vital to avoiding and winning discrimination cases. While it may be tempting to rely on boilerplate anti-discrimination policies and procedures found on the Internet or created by in-house counsel at corporate headquarters in Nevada, Massachusetts has some of the strongest anti-discrimination and sexual harassment laws in the country. In fact, the courts have strengthened the rights of employees and tenants in several recent cases.

For example, employers with fewer than six employees, who are exempt from the provisions of M.G.L. c. 151B (the Massachusetts anti-discrimination statute), nonetheless can now be sued for discrimination under the Massachusetts Equal Rights Act under a recent court case involving pregnancy-based discrimination. In another recent ruling, the court held that a landlord’s economic interest is not a legitimate, non-discriminatory reason to refuse to rent to a prospective tenant who is the holder of a housing subsidy, even if the subsidy requirements create a greater economic burden on the landlord. Subsidy holders are considered a protected class under M.G.L. c. 151B.

Even if your business has adopted policies and procedures in accordance with Massachusetts law, have they been updated recently to reflect these recent rulings? Perhaps more important, have your employees been sufficiently trained to understand and comply with these policies? In the event your business is sued for discrimination, being able to distance yourself from an employee’s actions by showing they are not in compliance with your company’s policies and procedures will be helpful.

If you need assistance understanding the requirements of Massachusetts anti-discrimination laws and how they impact your business practices, please feel free to contact me.