Law Office of Michael B. Mangano

We Can Help (978) 416-0121

Monthly Archives: November 2011

You are browsing the site archives by month.

The Elimination of the “Natural” Accumulation Defense in Massachusetts Slip and Falls

Massachusetts has finally joined the other New England states and eliminated the long-held standard of “natural” and “unnatural” accumulations in determining landowner negligence in slip and falls caused by ice and snow.  In determining landowner negligence, liability would be assessed only by determining whether accumulation of snow and ice was a “natural” or “unnatural.” If the accumulation was a “natural” accumulation, the landowner was not liable for the resulting injury. If the accumulation was an unnatural accumulation, the landowner was responsible for the resulting injury. In Papadopoulos v. Target, 457 Mass. 368 (July 26, 2010), the Massachusetts Supreme Judicial Court abolished the long-held, “archaic” rule. The court ruled that the all landowners have a duty to “act as a reasonable person under all of the circumstances” and completely eliminated the distinction of “natural” and “unnatural” accumulations of snow and ice.

Under the old rule, the landowner had no obligation to remove or warn of “natural” accumulations of snow and Ice.  Now, however, the Supreme Judicial Court concludes that the standard of care in snow and ice cases should be no different than the standard of care owed by a landowner in any other premises liability action. This means that a landowner owes a duty to maintain its premises in a reasonably safe condition given the circumstances.

This decision does not create a new standard of care; rather, it seeks to apply the reasonable person standard to the existing rule. It does not change the need for the plaintiff to prove negligence, nor does it reduce the defense of comparative negligence. The main purpose is to make landowners responsible for making their property reasonably safe for lawful visitors, regardless of the source of danger, and whether the condition was an act of nature or an act of another person.

This makes the rule more uniform. It seeks to apply the same standard whether the condition occurred in rain, snow, summer, fall, whatever. The court states that “if a property owner knows or reasonably should know of a dangerous condition on its property, whether arising from an accumulation of snow or ice, or rust on a failing, or a discarded banana peel, the property owner owes a duty to lawful visitors to make reasonable efforts to protect lawful visitors against the danger.”

The court will now balance the expense of removing the snow and ice with the likelihood and seriousness of foreseeable harm to visitors, and consider the following:

  1. The amount of foot traffic to be anticipated on the property;
  2. The magnitude of the risk reasonably reared; and
  3. The burden and expense of snow and ice removal.

Although the standard that is applied to snow and ice slips and falls has changed, the rule that is applied to these matters is no different from what would be applied if an accident happened on a landowner’s property any other time.

Lead Paint: Landlord’s Duty

Lead paint is toxic, dangerous to children, and can be found in almost all homes built before 1978. The Commonwealth of Massachusetts knows this and has developed numerous laws to protect tenants from exposure to lead paint and to help those tenants who have lead poisoning seek compensation. This article will discuss the dangers of lead paint, notice requirements, when an apartment needs to be delead, the requirements for lead abatement, and an owner’s liability.

Dangers of Lead Paint: children are the ones who are most often affected by lead poisoning, and this is why the lead paint laws center around their best interest. Children are typically affected by lead poisoning more than adults because – hopefully – adults know enough not to eat paint chips. Although this is not the only way to get lead poisoning, it is probably the most common. When excessive amounts of lead enter a child’s system, a child can develop a decreased IQ, shortened attention span, experience speech delays, hyperactivity, regression of recently acquired skills, irritability, or loss of appetite.  These impairments can result in inpatient or outpatient therapy to help treat the lead poisoning, which even after treatment can leave the child with lasting physical and/or mental impairments. The Department of Public Health and the Center of Disease Control have set standards to determine what is considered safe blood levels.

Notice Requirements: Mass. General Law Chapter 111 § 197A(d) sets forth a notice requirement upon a landlord who is renting a property with lead paint. A landlord must inform prospective tenants about the hazards of dangerous levels of lead in a home and how they can protect themselves from exposure. This is done, in part, by giving the tenant a standard notification brochure that informs them about the hazards of lead. It must outline the symptoms indicative of lead poisoning, medical treatment used to combat lead poisoning, and precautionary measure that can be used to reduce the risk of exposure for young children (it also includes other important parts of the law and gives contact numbers for lead poisoning. Please see a brochure for a complete understanding). This brochure can be found online and is designed to provide the tenant with a clear illustration of the law. In addition to having to provide this brochure, the landlord must tell the tenant where lead paint located on the premise. A failure to comply with these laws can result in a fine that cannot exceed $1,000.00.

When a Premise Must be Delead: The OWNER of a property containing dangerous levels of lead must obtain a letter of compliance or interim control in the following circumstances (meaning, remove the lead/abate):

  1. If a child under age six resides in the home, regardless of whether there has been a lead inspection; or
  2. The owner receives an order to delead because a child under six years of age resides there or a child under six, who is lead-poisoned, has resided there within the past 12-months; or
  3. The owner receives an order to delead because a child under six years of age who is lead poisoned resides there, in which case the owner will be required to abate the issue.

Requirements of Lead Abatement: All abatement procedures must be completed by an authorized person, usually a licensed deleader. An owner or agent can perform some of the work, but not until the premises is inspected by a licensed lead inspector and the owner received the proper licensing to remove the lead himself. Abatement usually requires that five feet from the floor up be properly treated. This five-foot area is called the “accessible, mouthable surface.” The inspector will tell you what will need to be done for a proper abatement and, you must know, this never means simply painting over the area with non-lead paint. This can be an expensive process for the landlord, but it is required by law.

Owner Liability: An owner is liable for all damages caused to a child under the age of six who resided in a unit with lead violations that causes the child’s blood to exceed the levels that the Department of Public Heal defines as lead poisoning.

No landlord wants to have to pay for a costly deleading, but doing so can prevent a costly suit that can come about from a child getting lead poisoning. In addition, there is not much that can be done to prevent the state from forcing you to delead. This is true even if you rent to a person that does not have a child and then he/she has a child. Also, stating that you will only rent to people without children is an entirely different issue, and it is also illegal to do in Massachusetts.