According to the National Weather Service, the average snow fall in Framingham for the month of February is 9.1”. The snow precipitation that we’ve encountered in the past few days has left approximately 10”-12” in towns throughout the metro west area. This one storm has left accumulations that are more than the average total for the entire month of February. While individuals plow their driveways, shovel their steps, and make areas of travel safe for guests and household members, a hidden danger lurks in areas most individuals are unable to remedy with ease- icicles hanging from rooftops. While many may laugh at the idea of an icicle posing a danger, the length and width of icicles falling from great heights transform these frozen wonders into frozen missiles capable of exacting injury, and in some cases, even death.
In Gosselin v. Colonial Shoping Center, Inc., a Plaintiff was injured while walking to get a cup of coffee from the Defendant’s store. As she approached the entrance she heard a sound of thunder from up above on the roof of the establishment. Before she knew it, she was hit unexpectedly by snow and icicles that fell from the roof. The Plaintiff brought suit against the store owner due her significant injuries that necessitated the intervention of an orthopedic doctor, claiming that the store owner failed to exercise a duty of reasonable care by failing to guard against the falling snow and ice. The lower court judge found in favor of the Defendant store owner. On appeal, the court held that there was no evidence suggesting any breach of the duty of reasonable care on the part of the Defendant. Additionally, the court held that the Plaintiff failed to present any expert testimony suggesting a design defect in either the roof or the awning where the snow fell. Finally, the court held that the Plaintiff presented no evidence that the Defendant was aware of the defect.
In formulating it’s decision, the Court of Appeals relied on previously decided cases that held a landowner’s duty to protect against dangerous conditions ordinarily does not extend to dangers that are obvious. However, it appears as though courts in the Commonwealth have adopted a newer, different approach. In the landmark decision of Papadopoulos, the court held, “a landowner, though, is not relieved from remedying an open and obvious danger where [the landowner] ‘can and should anticipate that the dangerous condition will cause physical harm to the [lawful visitor] notwithstanding its known or obvious danger.” Papadopoulos v. Target Corp., 457 Mass. 368.
The issue becomes whether icicles hanging from a rooftop are an open and obvious danger and whether this danger can be remedied with ease. On one hand, most individuals do not look up toward a roof when traveling to the entrance of a home or store way, especially when they are focusing their attention to make sure their feet don’t slip on any potential icy surfaces. On the other hand, should it be expected that in the winter months in New England that there’s always the chance of snow or ice falling from overhead surfaces? It appears as though the court has not had the opportunity to opine on this specific issue since the landmark case of Papadopoulos (mentioned above). Situations like the above can present complex questions of law and fact regarding the obviousness of the danger, the ability of a land owner to warn, and whether the accumulation of ice on a roof constitutes a defect should a person be unfortunate victim.
In the winter months, it is a necessity to be mindful of the lurking dangers caused by snow and ice. In the event you are injured, our office can help you. For more information, please refer to the section on our website on slip and fall accidents. To schedule a free consultation with lawyer Daniel Cappetta, call our office today at (508) 969-9505 or fill out or contact form available on the right side of this page.