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HomeMy WebLinkAbout2011-04-12 Board of Selectmen Handout - Part 2TO: Board of Selectmen From: Peter I. Hechenbleikner, Town Manager Date: Tuesday, April 12, 2011 Re: Snow and Ice Removal - Sidewalks have received 4 emails from Fred VanMagness regarding questions/issues related to sidewalk snow removal. The following are sections of the emails copied and numbered, with responses from myself, Town Counsel, and staff. Some of the points are not questions, but opinions, and I have not attempted to answer these. 1. Liability ( A HUGE ISSUE) - I cannot purchase insurance to insure a liability for property that I do not own. And even if I could buy insurance, it would mean an extra out-of-pocket cost to me personally that -I do not pay for today. Will the town provide a written release of liability to each and every property owner that may be impacted by this article if it is passed? If a resident shovels/plows the snow from a neighbors sidewalk since they may be away or are elderly, who is liable for a claim due to negligent maintenance? Town Counsel does not recommend a release of liability/indemnification agreement. Generally, indemnification agreements are exchanged when each party releases the other from liability caused by the intentional or negligent acts of the other party's employees. It is inadvisable for the Town to release a property owner from liability unless it can be clearly demonstrated on every occasion after it snowed, that the property owner has exercised reasonable care in clearing the sidewalk. In my opinion, this would require the Town to verify not only that the property owner cleared the sidewalk, but that it was done with reasonable care. I can only speculate as to how the town would accomplish this. 2. Notice - How will the town notify each property owner of the requirements to implement this, article? The town just cannot issue a list of streets in the newspapers, since not everyone gets the newspaper in Reading and it would not constitute legal due notice. Also, not every property on a street would be impacted. For Main Street as an example, it is probably sections of the street, but not all. Will the town provide ANNUAL certified mail notices, return receipt required, to each property owner so that the town will have a record of notice being given should a claim for injury be made on an improperly maintained sidewalk? How will notice be handled to properties that changes hands during the winter due to home sales, foreclosures, etc.? Unless there is a deeded encumbrance, how would future owners know? The Town will use programmed mass communications (reverse 911 to notify residents annually. The system has the ability to be geo-coded to reach only the intended residents. We will not mail notices, nor is mailing required by bylaw or statute. 0 0 Page 1 3. Encumbrance - should this By-Law be passed, will the town require a recording at the Registry of Deeds mandating the required maintenance? Note, the Reading Conservation Commission requires deed restriction recordings to ensure compliance with the Conservation By- laws. So if this is the standard, why would the BOS not require a deed restriction be placed on the record to inform future potential owners? If a deed is to be recorded, who will pay for the cost to record same and who in town will maintain a file of recorded deed restrictions? . No. The obligation to record permits and approvals (which is required by the applicable statutes) at the Registry of Deeds is not even remotely similar to a requirement to follow 4. Certain areas of the town are no salt or low salt in the Aquifer Protection District. Will the town require the use of non-salt products for ice control on sidewalks and if so, at who's cost? There are no designated "no salt" areas of Reading. There are areas in the Aquifer Protection District where the Town uses no or limited salt on public streets. There are no restrictions on what material residents use on their own driveways and sidewalks, although it is certainly preferred that salt not be used in these areas. 5. Who will provide the sand, salt, or alternative chemicals to be used to control ice or snow accumulations? Will the town supplies be available to residents at the. DPW garage? Who from the DPW will load sand/salt for residents use? After all, we would not want a resident to be hurt at the DPW facility. Sand in limited quantities continues to be available to residents when the DPW yard is open. The Town does not and will not load sand for individuals. 6. Please provide specific examples of exactly when snow/ice must be removed in accordance with the time limits (i.e.: for residents, within eight hours between sunrise and sunset after such snow and ice have come upon the sidewalk.... for businesses, use the similar times in the By-Law) in the proposed By-Law, for the following: For sake of discussion, assume winter Sunset is 4:30PM and Sunrise is 7AM. Please provide separate times for clearance of snow/ice for Residents (8 Hours) and Businesses (3 hours) Snow stops at 7AM weekday.... snow cleared by : resident 3 PM, businesses 10 am Snow stops at midnight weekday- snow cleared by: resident 3PM, businesses 10 am Snow stops at 5PM weekday - snow cleared by: resident 3PM , businesses 10 am Snow stops at 5PM Saturday - snow cleared by: resident 3PM, businesses 10 am Snow stops at 1 PM Saturday - snow cleared by: resident 1 PM, businesses 4 PM Snow stops at noon on Sunday - snow cleared by: resident 10:30 am, businesses 3 PM Based on the By-Law wording and specific times that snow may stop falling, it is clear to me that all snow WILL NOT be removed from sidewalks in sufficient time for students to walk unencumbered to school. As a result, if sidewalks are only partially cleared, there is a safety issue for schools. Will schools have more delayed openings? Will students be forced into the road for added safety issues? This happens at times now, and the Superintendent of Schools makes the best decision on whether or not to have school based on the individual circumstances. 7. There are numerous places in Reading where there is not 36 inches of sidewalk area (specific criteria in By-Law). One in particular is about 500 north of Birch Meadow Drive on the west side of Main. Since this is on Main St. and is a school route, please advise how the resident will be able to comply, when even the Town cannot. Note, the only exclusion from compliance is due to the D demonstration of extreme hardship due to health and financial distress. There is no relief for unusual property configurations. The expectation is not that property owners would reconfigure their sidewalks, but plow or shovel a sidewalk wider that what exists in reality up to the minimum standards in the bylaw. 8. How will the town handle snow removal from sidewalks that the BOS has granted an exemption due to extreme health and financial distress? How will the exemption be granted... procedure, criteria, financial limits per household or per owner, etc.? Will people be required to disclose their financial tax returns? Will the Police Department, as the enforcement entity, have a list of exempted properties? Who will maintain the list? Will the DPW clear these exempted properties within the same time criteria as for residents? If there are waivers, and for sidewalks in front of Town owner property, the DPW will respond wit the appropriate equipment and plow the walks. The DPW will maintain a list of waivers, and since they will also be the ones doing the enforcement, no further coordination is required. 9. Section 5.19.5 specifically says that no person can cause snow, etc. to be placed on any street, sidewalk, etc. I believe this is the same as current By-Law. However, the requirement for businesses to shovel the full width of their sidewalk means they have no place to put the snow. What do you anticipate they will need to do with snow that falls on the sidewalks in front of their property that they must shovel off? Will they have to hire a contractor to haul the snow away? Remember, these are tough financial times for all, residents and businesses. Is this what our Economic Development Committee is endorsing as a pro-business initiative? This section of the bylaw is slightly modified from the current bylaw. The current bylaw says that you cannot put snow on a street or sidewalk after it has been plowed. This section of the bylaw says you cannot do it at any time. In downtown where we do snow removal we would allow snow to be placed on the curb line or in the gutter in windrows. In areas where the sidewalk is really wide we don't need them to clear the entire width. In other locations the owners would have to do the same as anyone else - put it on their own property or in the tree lawn not on the sidewalk. 10. In the supporting materials in the Town Warrant, it states the cost of sidewalk snow removal in the northerly and southerly areas costs $40 per mile. If I assume each residence has 100 ft of frontage, this works out to a cost of approx. $0.80/storm (80 cents) for each residence. For 18 storms (see calculation below), this amounts to $14.40 yearly per residential property impacted by the By- Law to have the town do the work. Using the figures in this manner is a little misleading. During a storm we may need to plow the walks several times. Every time we plow it averages $40 per hour per mile. This year at times the walks went unplowed - we had equipment breakdowns, and in some instances we needed to use that same equipment to widen out streets Is it really worth it to push this issue once again? If this revenue is so important to the town, then come up with a $5 fee to be tacked on to the Storm water fee for ALL Residents and businesses and continue to provide the service. After all, most residents walk on one sidewalk or another in town. No comment required. 11. Using data from the warrant article, assuming 43 miles @ $40/mile plus $658 for business area, this equates to $2378 per storm. The estimate of total cost of $44,000 divided by $2378 means we had 18 plowable storms this winter in the towns assumptions. A homeowner that would have to contract with a service to shovel a sidewalk would cost between $35-50/storm (FVM Estimate). On 0 18 storms, this represents an extra cost of $630 - $900 EXTRA costs for each homeowner that cannot do the work themselves or are away during the winter (added out-of-pocket costs to Seniors and retirees). Larger sidewalk areas would probably cost proportionately more. The town does not sand or salt sidewalks today but now requires in this By-Law that residents do this work, all at ADDED cost beyond the numbers above. Over 10 years, the cost for the town to plow residential sidewalks is $144 per property but $6300-9000 if residents pay for it individually. Am I missing something? No comment required. 12. Enforcement - for residents who may be away, what is the specific ticketing procedure that the Police will use. For properties that are vacant or owners are away, how will they know they have been ticketed? Once a ticket has been issued for a storm, will the Police automatically revisit the property every day (remember the penalty is $25 PER DAY) and issue another ticket each.day the violation remains? If not, why not? Where will they place the ticket? Will it be mailed? Will they ring the bell? Ticket will be issued in hand if possible. If not it will be mailed. Remember, the intent is not to ticket, but to get compliance. 13. Looking at the comparable community statistics provided, you should note that 8 out of the 11 communities have no regulations or the town clears some selected sidewalks. Of the 6 communities that Reading touches, in 4 of the 6 the town clears selected sidewalks. No comment required. 14. Specifically concerning Main Street (Route 28), Lowell Street and Salem Street (Route 129), all being State numbered highways, I assume (but maybe incorrectly) the sidewalks along these roads are in the current state road right of way. Question #1 - please confirm who owns the fee under the area where the sidewalks on these roads are located... is it the Reading or is it the State? On Main Street south of the RR tracks, and north of Salem Street, the State owns the right of way including the sidewalks. The Town owns the right of way on Route 129 - Salem and Lowell Streets. Question #2 - if the State owns the fee, can a By-Law of the Town of Reading mandate property owner removal of sidewalk snow on sidewalk land that is not owned by the town? You may need a legal opinion on this. Yes 15. Section 5.19.1 requires "the owner or occupant......" to cause snow, etc. to be removed. How can the town require renters (occupants) to perform this maintenance? The law allows it. Isn't the town's sole remedy against property owners? No In the case of a fine or ticket being issued, will the police ticket the owner or the occupant? The proposed motion would have the DPW Director or designee(s) be the enforcing agent. The occupant has the responsibility to clear the sidewalk under the bylaw. How will they know the difference? It doesn't matter - it is the occupant How much time will it take for them to get the name and address of the owner to issue the ticket and will the tickets be mailed so as to be sure the owner is noticed? It doesn't matter - it is the occupant's responsibility. Will a ticket to the'occupant constitute a lien on the property? As a last resort it could be, and there is a due process required. If a ticket is unpaid, will the enforcement be through the Registry of Motor Vehicles like normal police tickets? The enforcement through the RMV is only for MV citations. The Police and other local officials enforce a variety of local bylaws through tickets through the Woburn District Court. How will unpaid tickets be processed? Ticket is issued, needs to be paid to the Town Clerk, and if not paid within 21 days it goes to the Woburn District Court for enforcement. 16. Section 5.19.1 requires snow removal on paved sidewalks designated as "walking routes". Is there a specific distinction between a walking route and all sidewalks? That is up to the Board of Selectmen to designate. I would assume for this time that the map showing the plow areas would be considered the walking routes. The map is on the web site. The background material accompanying the article in the very first sentence says "This article would require all property owners to clear snow and ice from sidewalks abutting their property". It therefore appears to be the intent of this proposed By-Law to encompass ALL sidewalks, not just walking routes. Please confirm. That has been corrected from the draft warrant report that you reference. 17. Businesses are required to remove all snow from the entire width of the sidewalk. In the downtown, some sidewalks are maybe 20-30 feet wide ...such as in front of CVS and Walgreens. Therefore, it appears these businesses will have more sidewalks to plow and sand vs. others because of the new downtown alignments. Please confirm. In downtown where we do snow removal we would allow it to be placed on the curb line or in the gutter in windrows. In areas where the sidewalk is really wide we don't need them to clear the entire width. In other locations the owners would have to do the same as anyone else - put it on their own property or in the tree lawn not on the-sidewalk. 18. Have the schools been notified that snowstorm snow/ice removal may not happen to allow all school walking routes to be open for walking until the end of the day after snow stops falling? For example, if a storm ends at 5PM, snow does not have to be removed until sunset the next day. In today's world, the DPW would usually have the school sidewalk routes open by 7AM the next day and school could open on time. This is not always true. School walking routes are a priority but depending on the timing of storms and the amount of snow, DPW cannot always guarantee that walks are cleared. The Superintendent is informed as tot the status of sidewalks when he confers with DPW prior to making a decision on whether or not to cancel school. With this requirement passed on to residents if this By-Law passes, the schools could be adversely impacted by potentially having students walking in the streets since sidewalks might not be cleared by 7AM, representing a substantial safety issue. Is the School Committee and Superintendent on board and understand this new By-Law? If a student is hit by a car walking on the street because the sidewalks are not shoveled AND the By-Law does not require removal until 8 hours after a storm between sunrise and sunset, who would be liable in a suit ? How many extra snow days might be needed in next years school calendar? No comment required. 19. 1 found the following in a slip opinion of the Papadopoulos case. Most of the case was devoted to natural vs. unnatural accumulations of snow/ice on private property. It was interesting to read the comments. Seems the case law is not all that clear. I'm sure Town Counsel can clear this up. Seems like if it got there naturally, no liability, but if you cleaned it up, you could be liable. Seems a little murky to me. SJC-10529 EMANUEL PAPADOPOULOS & anotherlvs. TARGET CORPORATION2 & another.3 Suffolk. February 8, 2010. - July 26, 2010. 0 11 There was a third legal track, not relevant here, for injuries suffered by a plaintiff on a public way, including a sidewalk and roadway, that abutted a defendant's property. "The owner or occupant of premises abutting on a public way is under no obligation to keep the sidewalk free of snow or ice which came there from natural causes." Bamberg v. Bryan's Wet Wash Laundry, Inc., 301 Mass. 122,123-124 (1938). The owner of land abutting a sidewalk on which the injury occurred, even if the owner had an easement of travel on the sidewalk, was liable only if the dangerous condition was created by the owner or its employees, or by "the physical state of its abutting land or of structures thereon under its control." Id. at 124. See Mahoney v. Perreault, 275 Mass. 251, 253-254 (1931), and cases cited. The impact of the Papadopoulos v. Target case was the elimination of the distinction between natural and unnatural accumulations of snow and ice for purposes of determining civil liability for personal injuries/property damage occurring on both private and public property. Prior to Papadopoulos, property owners were not liable if someone was injured on a natural accumulation of snow/ice. Examples of what are considered to be unnatural accumulations are tire ruts, improper shoveling, draining off water to an area where it would freeze, etc. This distinction no longer exists and now, a property owner will be liable if they do not use "reasonable care" in maintaining their property. Now, leaving walkways covered with natural accumulations of snow and ice is arguably evidence that reasonable care was not used. No cases have been decided since the Papadopoulos decision and therefore, it cannot be said with certainty how the courts will define "reasonable care" in these situations. 20. Concerning the fine for non-compliance, the draft article #21 states "Violations of this section shall be punishable by a fine of $25 per day......." This fine applies to all sections of the proposed By- Law.. residences, businesses, and apartments/condominiums. In researching various aspects of this program, I discovered that the Massachusetts General Laws, Chapter 85, Section 5 titled "Removal of snow and ice from sidewalks by abutting landowners penalties" states as follows: "Cities by ordinance and towns by by-laws may provide for the removal of snow and ice from sidewalks within such portions of the city or town as they consider expedient by the owner or occupant of land abutting upon such sidewalks. Such ordinances and by-laws shall determine the time and manner of removal and shall affix penalties, not exceeding fifty dollars in the case of a city or ten dollars in the case of a town, for each violation thereof." The above citation of the Chapter 85, Section 5 MGL was obtained on-line yesterday, April 2, 2011, and I could find nothing to supersede it. As you can see, there is a difference in the town violation penalty of "not exceeding" $10 that the MGL sets vs. the $25 contained in the draft by-law. Please review so we can have a clear answer as to what forms the legal basis of the variation on the 12th. Attached hereto is a copy of M.G.L. c.40, sec. 21 which in subsection (3) specifically authorizes the enactment of a bylaw for the removal of snow and ice, with a maximum penalty of $300.00. Chapter 85, sec.5 says what it says, but it is also an older statute (the legislature no longer distinguishes between cities and towns for purposes of establishing fines) and in my opinion is not applicable when there is a more specific statutory authority. In determining which statute applies, it is always the more specific statute that controls. 21. Please follow the email string below and snow shoveling implications. Interesting response or sidewalks on North Main St. and Franklin. I did not ask about the recent downtown renovations or what might happen on West St. during the upcoming reconstruction of that historic roadway but there may be implications there as well. I expect a significant turnout for the selectmen's meeting on April 12th to discuss this warrant article Representative Jones asked me to respond to your recent e-mail regarding the maintenance of sidewalks in Reading on North Main Street and Franklin Street that were funded through a state grant. 1 just heard back from the Executive Office of Transportation regarding this matter and was informed that once a state funded project like the one you inquired about is completed the state signs over responsibility of the maintenance to the town. At that time, the maintenance duties that the town becomes responsible for are snow and ice removal, potholes and other surface repairs that are necessary. No comment required. 0 Item 20 - Effective: July 9, 2008 Massachusetts General Laws Annotated Currentness Part I. Administration of the Government (Ch. 1-182) r,Title VII. Cities, Towns and Districts (Ch. 39-49A) r,u Chapter 40. Powers and Duties of Cities and Towns (Refs & Annos) § 21. By-laws of towns; purpose Towns may, for the purposes hereinafter named, make such ordinances and by-laws, not repugnant to law, as they may judge most conducive to their welfare, which shall be binding upon all inhabitants thereof and all persons within their limits. They may, except as herein provided, affix penalties for breaches thereof not exceeding three hundred dollars for each offense, which shall enure,to the town or to such uses as it may direct. Notwithstanding the provisions of any special law to the contrary, fines shall be recovered by indictment or on complaint before a district court, or by noncriminal disposition in accordance with section twenty-one D. (3) For providing for the removal of snow and ice from the sidewalks, within the limits of the public ways therein to such extent as they deem expedient. The penalty for the violation of such by-laws shall apply to the owner of abutting property or his agent having charge thereof. CREDIT(S) Amended by St.1941, c. 346, § 1; St.1949, c. 98; St.1951, c. 352; St.1952, c. 594; St.1953, c. 319, § 8; St.1953, c. 402; St.1954, c. 213; St.1955, c. 24; St.1956, c. 509; St.1957, c. 436; St.1959, c. 220; St.1961 c. 383; St.1965, c. 316; St.1967, c. 870; St.1969, c. 383; St.1970, c. 470; St.1971, c. 83; St.1973, c. 317; St.1973, c. 806, § 1; St.1974, c. 424, § 1; St.1975, c. 107; St.1977, c. 401, § 1; St. 1981, c. 109; St.1981, c. 644, § 1; St.1985, c. 632, § 1; St.1986, c. 251, § 1; St.1990, c. 326, § 1; St. 1991, c. 468; St.2000, c. 384, § 9; St.2002, c. 450, 1,_2; St.2008 c. 76 1, 2, eff. July 9, 2008. Current through the 2010 2nd Annual Session (C) 2011 Thomson Reuters. No Claim to Orig. US. Gov. Works. END OF DOCUMENT Motion under ARTICLE 21 2011 Annual Town Meeting Move that the Town vote to amend the General Bylaws of the Town of Reading by deleting Section 5.2.4, and by adding a new section 5.19 as follows: 5.19 Snow and Ice Removal 5.19.1 Residences. The owner or occupant of any residentially zoned land abutting a paved sidewalk that has been designated by the Board of Selectmen as a walking route in the Town shall cause all snow and ice to be removed from said sidewalk by plowing, shoveling, scraping or otherwise so as not to damage such sidewalk, and within eight hours between sunrise and sunset after such snow and ice have come upon the sidewalk. At a minimum, only so much of said sidewalk that meets the Americans with Disabilities Act (ADA) requirements for a minimum cleared width of thirty six inches (36') shall be required. Violations of this section shall be punishable by a fine of $25 per day that the snow and ice are not so removed. The provisions of this- bylaw may be enforced through the non-criminal disposition method as provided in M.G.L. c. 40, § 21D and Section 5.11 of this Bylaw. For the purpose of non-criminal disposition, the following shall be enforcing persons: Director of the Department of Public Works or his designee. The Board of Selectmen is authorized to exempt citizens from the requirements of this section upon petition showing demonstrable extreme hardship due to a combination of health and financial duress. 5.19.2 Apartments / Condominiums. The owner of any residential property utilized for apartment house or multi unit condominium use that abuts a paved sidewalk in the Town shall cause all snow and ice to be removed from the entire width of such sidewalk by plowing, shoveling, scraping or otherwise so as not to damage such sidewalk, and within the first three hours between sunrise and sunset after such snow and ice have come upon such sidewalk. Violations of this section shall be punishable by a fine of $25 per day that the snow and ice are not so removed. The provisions of this bylaw may be enforced through the non-criminal disposition method as provided in M.G.L. c. 40, § 21 D and Section 5.11 of this Bylaw. For the purpose of non-criminal disposition, the following shall be enforcing persons: Director of the Department of Public Works or his designee. 5.19.3 Businesses. The owner or occupant of any land abutting upon a paved sidewalk of a public way in this Town, which said property is zoned or used for business purposes shall cause all snow and ice to be removed from the entire width of such sidewalk. Such snow and ice shall be so removed by plowing, shoveling, scraping or otherwise so as not to damage such sidewalk, and within the first three hours between sunrise and sunset after such snow and ice has come upon such sidewalk. Violations of this section shall be punishable by a fine of $25 per day that the snow and ice are not so removed. The provisions of this bylaw may be enforced through the non-criminal disposition method as provided in M.G.L. c. 40, § 21 D and Section 5.11 of this Bylaw. For the purpose of non-criminal disposition, the following shall be enforcing persons: Director of the Department of Public Works or his designee. 5.19.4 In extreme circumstances such as a major blizzard or declaration of a State of Emergency, the Town Manager or his designee may waive the requirement for removal of snow from sidewalks or may vary the time frame for removal of snow from sidewalks, and shall make every effort to inform residents of this waiver. 5.19.5 In addition to the remedies provided above, the Board of Selectmen may, in its discretion, after due notice to the owner of the real property and an opportunity to be heard, perform or 2011 Annual Town Meeting - Motions 8 otherwise cause the clearing or treating of snow and/or ice to be performed and recover from said owner the expense therefore which shall riot exceed $500.00 per occurrence. Such expense shall constitute a municipal charge lien against the real property as provided in M.G.L. c. 40, § 58. 5.19.6 No person shall move or remove snow or ice from private lands upon any public street, sidewalk or common land of the Town in such a manner as to obstruct or impede the free passage of vehicular or pedestrian traffic upon the street, sidewalk or common land of the Town, unless he has first obtained a permit therefore issued by the Director of Public Works. No person shall lay, throw, place, or cause to be placed any ice or snow on any portion of any street, sidewalk, or .common land within the Town. Board of Selectmen 2011 Annual Town Meeting - Motions 9 (DO SIDEWALK PLOW ROUTES BY SCHOOL DISTRICT ...SN4DOCN UI ESw e 1 N"V ~ ` lY OpR0Ex0E R wmvt ia6i e:. IA NELaaN ~ R~NwA>;. - N ~I 61 3 ~ceA.r4 f,e % 00 ~I y./flE nO. C` ?nN F~Ff '.L AU9Ti LN 0?~,C~~ O - f VAN i(ROEII POD I aaG W~ T _ ; 91. f 11 ~ E ~yf ~r~/MNFA (~A•IARO-„'~G ~ AP,% oo~~ OPEN 1' "65~',J~ ~11 AuE~ ~ QO 1' jp o~ip~ ~t Y1k ~v! w £ 0'1$ y5e1 RQ OAItEn RD \ tY wma 1 y f 1 "TROY may, j WPE ~~DN s• e4 . n,>~fAAf4r ~T ~k 5 `wA°n Tw,yn,In E~2~Es' .l M~ T 3.A 1 'Aran 4unE~3 no" 2n \ ';i fat' Sr'• a a~ ~ xvE T.rlu' Nap'.;; _ Y' " \ }i ~,aJi ~ !a L SM1 f~, '~4W RNERS Wn~'1f Torun, d, 4 l RSaaCARe \ PN ~S pl ^ / 9 ~~e5t.. \ \ \ f8, .fig p ~xg W P l1 q? I rnreRU,J afAw.~3 ° ) NoTr` a{`~~ , 9 roNa L"~~$ (pu \ ~eapo "S6°4'°C°r(d . ~'vea~a~//)~ p o ..rw ee Ap g'.•.~(CNBT 4',A\ ~'~De, J\ ~ 1 1 lei EuA~~ n~'"°+ _ ~wEW AV[ ap " ~ ' g ~rt`e'~o ( ~ ~ \ ~ pgrAor'c+ % $ eN'~' ovr AP qd~ $ I ~R0 / ~EVALE.. uu a~g ~49 , N RN °441 WEP b. Le , gend P4 ~^IREEJ ! s I a1NURD ( BUSINESS AREA (Town Boundary Sidewalk Plow Routes \,°T fi~ w ~g ; Reo E w ' vro ~(wms YMREHkE .aMMLERp Ems, tG~ ,1 ~DUI.~ -Business Area. DD~~1: Sl l.i^ y M, '"li ~mip ag, LMECOO AVE Vf.~""~~~ ICySAT10N -Northam Route pysoxxo g If:8 k -LID -Southern Route 1 i 8°9'. cT a dam, c sltoPAxv osD School Districts m ~ A EiYaP WaEY St _ ~ ~ TCWNN ~~ON Nm`~3y Barrows Birch Meadow e I\- ~.p fr \ \ ~Appp wAV: r Im yERx N - Eaton Iallam p wke Wood End Buildings ] School ' , Tax N OtherTown Building ~ EEysL `~a Other T Map eTwit . 1/n 11 Reading i `Sidewalk Mep da agile:' Trzsm J Raads, bu idings, a sidewalks Irom aerial Roads photos taken spring 20Oa. bA T °vyAaNx N 3ndge EOT highways from M-GIS. : N EL NIL~+R=~YRp OpLTONST_.._.- Paved 400 WO 1 Unpaved o z 3 ME 1,M ao F..1 -~`3 °aW ~'ppo . i SWE ' 11 oAdaevE td Page 1 of 4 Schena, Paula From: Hechenbleikner, Peter Sent: Monday, April 11, 2011 5:05 PM To: Schena, Paula Subject: FW: liability issues - Article 21 snow and ice removal - Town of Reading (Time Sensitive) To Board of Selectmen tomorrow Peter I. Hechenbleikner Town Manager Town of Reading 16 Lowell Street Reading MA 01867 Please note new Town Hall Hours effective June 7, 2010: Monday, Wednesday and Thursday: 7:30 a.m - 5:30 p.m. Tuesday: 7:30 a.m. - 7:00 p.m. Friday: CLOSED phone: 781-942-9043 fax 781-942-9071 web www.roadingma_gav_. email town manager cr ci._reading_maus Please let us know how we are doing - fill out our brief customer service survey at http;//readingma- surv_e~!.v._irtualtownhall.net/su_r.~/sid/8 87434dd9e2 l 3Ob7/ From: Laura Peckham [mailto:Laura.Peckham@cabotrisk.com] Sent: Friday, April 08, 20117:44 AM To: Hechenbleikner, Peter Cc Ellen Callahan Doucette; Patricia Sullivan; Robert Marinelli MMA Subject: RE: liability issues - Article 21 snow and ice removal - Town of Reading (Time Sensitive) Good Morning Peter, The following is a response from our Loss Control Manager Bob Marinelli with respects to Snow Removal: The recent SJC case (Papodolous vs Target) essentially eliminates what was known as the "Massachusetts Rule", which protected property owners from liability of natural accumulating snow. We now are bound by what is known as the "Connecticut Rule," which essentially requires property owners to apply "reasonable care" much.like they should with any other premisis liability hazard. Property owners are now expected to have snow and ice removed within a "reasonable" time frame regardless of whether the accumaulation is natural or unnatural. Unnatural being the moving (plowing/shoveling) of snow into a walkway, or the melting or falling of snow off banks into walkways (also melted runoff that refreezes). Many towns have bylaws that require homeowners to shovel sidewalks adjacent to their homes. Some don't. MIIA hasn't provided direction in this area as each town is different. It can be argued that sidewalks are public property with the clearing responsibilities placed upon the 4/11/2011 Page 2 of 4 abutting home owner, therefore the town should implement some procedure for investigating complaints and notifying homeowners of the need to clear the sidewalk. Perhaps even conduct inspections after a "reasonable" amount of time from the end of the snowfall. As long as the town can show it's due diligence, defending the town should be fairly straightforward. Homeowners should be advised of the town's bylaws, as that is where the responsibility is transferred. If they homeowner is cited for violating the bylaws, more than likely they can be held liable for injuries. We are actually awaiting cases to see how this is interpreted in the courts. So, my best advise is to be proactive in educating citizens and following up after a show event. I have cc'd Bob in on this e-mail and will ask if he has any other recommendations and/or thoughts on the Town's new By-Law. Thank you, Laura Laura J Peckham Account Manager Direct Number: 789-939-6864 Fax Number: 781-376-9907 Confidentiality Notice: The information in this e-mail message, including any attachments, is for the sole use of the intended recipient(s) and may contain confidential and privileged information. Any unauthorized review, use, disclosure of distribution is prohibited. If you are not the intended recipient, and have received this communication in error, please contact the sender by reply e-mail and destroy all copies of the original message. Thank you help make the earth a greener place. 11,111 all Possible resist printing this c-mail add join ns in saviagy paper. From: Hechenbleikner, Peter [mailto:phechenbleikner@ci.reading. ma.us] Sent: Thursday, April 07, 20113:55 PM To: Laura Peckham Cc: Ellen Callahan Doucette Subject: FW: liability issues - Article 21 snow.and ice removal Laura Please see the email from our Town Counsel. We are considering a bylaw requiring residents to remove snow and ice from their sidewalks - see the following. I have this on the Board of Selectmen for discussion Tuesday evening so if there is any information you can get me between now and then I would appreciate it. Motion under ARTICLE 21 2011 Annual Town Meeting Move that the Town vote to amend the General Bylaws of the Town of Reading by deleting Section 5.2.4, and by adding a new section 5.19 as. follows: 5.19 Snow and Ice Removal 5.19.1 Residences. The owner or occupant of any, residentially zoned land abutting a paved sidewalk that has been designated by the Board of Selectmen as a walking route in the Town shall cause all snow and ice to be removed from said sidewalk by plowing, shoveling, scraping or otherwise so as not to damage such sidewalk, and within eight hours between sunrise and sunset after such snow and ice have come upon the 4/11/2011 i3 Page 3 of 4 sidewalk. At a minimum, only so much.of said sidewalk that meets the Americans with Disabilities Act (ADA) requirements for a minimum cleared width of thirty six inches (36) shall be required. Violations of this section shall be punishable by a fine of $25 per day that the snow and ice are not so removed. The provisions of this bylaw may be enforced through the non-criminal disposition method as provided in M.G.L. c. 40, § 21D and Section 5.11 of this Bylaw. For the purpose of non-criminal disposition, the following shall be enforcing persons: Director of the Department of Public Works or his designee. The Board of Selectmen is authorized to exempt citizens from the requirements of this section upon petition showing demonstrable extreme hardship due to a combination of health and financial duress. 5.19.2 Apartments/ Condominiums. The owner of any residential property utilized for apartment house or multi unit condominium use that abuts a paved sidewalk in the Town shall cause all snow and ice to be removed from the entire width of such sidewalk by plowing, shoveling, scraping or otherwise so as not to damage such sidewalk, and within the first three hours between sunrise and sunset after such snow and ice have come upon such sidewalk. Violations of this section shall be punishable by a fine of $25 per day that the snow and ice are not so removed. The provisions of this bylaw may be enforced through the non-criminal disposition method as provided in M.G.L. c. 40, § 21D and Section 5.11 of this Bylaw. For the purpose of non-criminal disposition, the following shall be enforcing persons: Director of the Department of Public Works or his designee. 5.19.3 Businesses. The owner or occupant of any land abutting upon a paved sidewalk of a public way in this Town, which said property is zoned or used for business purposes shall cause all snow and ice to be removed from the entire width of such sidewalk. Such snow and ice shall be so removed by plowing, shoveling, scraping or otherwise so as not to damage such sidewalk, and within the first three hours between sunrise and sunset after such snow and ice has come upon such sidewalk. Violations of this section shall be punishable by a fine of $25 per day that the snow and ice are not so removed. The provisions of this bylaw may be enforced through the non-criminal disposition method as provided in M.G.L. c. 40, § 21D and Section 5.11 of this Bylaw. For the purpose of non- criminal disposition, the following shall be enforcing persons: Director of the Department of Public Works or his designee. 5.19.4 In extreme circumstances such as a major blizzard or declaration of a State of Emergency, the Town Manager or his designee may waive the requirement for removal of snow from sidewalks or may vary the time frame for removal of snow from sidewalks, and shall make every effort to inform residents of this waiver. 5.19.5 In addition to the remedies provided above, the Board of Selectmen may, in its discretion, after due notice to the owner of the real property and an opportunity to be heard, perform or otherwise cause the clearing or treating of snow and/or ice to be performed and recover from said owner the expense therefore which shall not exceed $500.00 per occurrence. Such expense shall constitute a municipal charge lien against the real property as provided in M.G.L. c. 40, § 58. 5.19.6 No person shall move or remove snow or ice from private lands upon any public street, sidewalk or common land of the Town in such a manner as to obstruct or impede the free passage of vehicular or pedestrian traffic upon the street, sidewalk or common land of the Town, unless he has first obtained a permit therefore issued by the Director of Public Works. No person shall lay, throw, place, or cause to be placed any ice or snow on any portion of any street, sidewalk, or common land within the Town. Board of Selectmen 4/11/2011 Page 4 of 4 Peter I. Hechenbleikner Town Manager Town of Reading 16 Lowell Street Reading MA 01867 Please note new Town Hall Hours effective June 7, 2010: Monday, Wednesday and Thursday: 7:30 a.m - 5:30 p.m. Tuesday: 7:30 a.m. - 7:00 p.m. Friday: CLOSED phone: 781-942-9043 fax 781-942-9071 web www.readingma_.gov email townmanager@ci,reading.ma,us Please let us know how we are doing - fill out our brief customer service survey at http://readingma- survey.virtualtovmhall.net/surve~ /sid,/g 87434dd9e2.1 07/ From: Ellen Doucette [mailto:ecdoucette@brackettlucas.com] Sent: Thursday, April 07, 20113:44 PM To: Hechenbleikner, Peter Subject: liability issues - Article 21 snow and ice removal Peter, Have you or anyone from your office checked with MIAA regarding the snow and ice removal bylaw specifically, whether or not they have issued any advisories as to how they would handle an injury claim on the town's behalf. In my opinion, the town will remain liable for any injuries which occur upon their sidewalks (the town is liable only if the ways have an underlying defect, snow and ice alone will not suffice). However, in defending a case, I cannot say that MIAA would not attempt to seek recovery, in whole or in part, from an abutting homeowner if the injury were caused by snow and ice that they (homeowner) shoveled. I would also not recommend that the town enter into indemnification agreements with any homeowners, but I think it would be important to get input from MIAA on that issue as well. Kindly advise. Ellen Ellen Callahan Doucette, Esq. Brackett & Lucas 19 Cedar Street Worcester, MA 01609 (508) 799-9739 (508) 799-9799 Facsimile 4/11/2011 (,9 NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us SJC-10529 EMANUEL PAPADOPOULOS & another' vs. TARGET CORPORATION2 & another.3 Suffolk. February 8, 2010. - July 26, 2010. Present: Marshall, C.J., Ireland, Spina, Cowin, Cordy, Botsford, & Gants, JJ. Snow and Ice. Negligence, Snow and ice. Civil action commenced in the Superior Court Department on December 22, 2005. The case was heard by Merita A. Hopkins, J., on motions for summary judgment. After review by the Appeals Court, the Supreme Judicial Court granted leave'to obtain further appellate review. c Emmanuel N. Papanickolas (Paul R. Moraski with him) for the plaintiffs. James T. Scamby for the defendants. Martin J. Rooney & James C. Wood, for Massachusetts Defense Lawyers Association, amicus curiae, submitted a brief. J Michael Conley & Chris A. Milne, for Massachusetts Academy of Trial Attorneys, amicus curiae, submitted a brief. GANTS, J. The plaintiff Emanuel Papadopoulos was injured 1 Annie Papadopoulos. 2 Doing business as The Target Stores. 3 Weiss Landscaping Company, Inc. 01(42 2 when he slipped and fell on a patch.of ice in the parking lot of the Liberty Tree. Mall in Danvers in front of a Target department store.' He filed suit in the Superior Court against the defendants Target Corporation, which controlled the area of the parking lot where the plaintiff fell, and Weiss Landscaping Company, Inc., the contractor retained to remove snow and ice from the parking area. The judge allowed the defendants' motions for summary judgment as to all claims.' The plaintiff appealed and, in an unpublished memorandum and order pursuant to its rule 1:28, the Appeals Court affirmed. Papadopoulos v. Target Corp., 74 Mass. App. Ct. 1104 (2009). We granted the plaintiff's application for further appellate review and directed the parties to brief the question whether, in a premises liability action involving a slip and fall on snow and ice, the distinction between natural and unnatural accumulations of snow and ice should continue to be a factor under Massachusetts law in determining whether a property owner or other person responsible for maintaining property has been negligent.' We now abolish the A The plaintiff's wife, Annie Papadopoulos, joined in the suit, claiming loss of consortium resulting from her husband's injuries. Because her claim is entirely dependent on the viability of her husband's underlying claim, see Sena v. Commonwealth, 417 Mass. 250, 264-265 (1994), we refer to a single plaintiff in the discussion that follows. ' The judge later denied the plaintiff's motion for reconsideration. ' We acknowledge the amicus brief submitted in support of the plaintiff by the Massachusetts Academy of Trial Attorneys, as well as the amicus brief submitted in support of the defendant by the Massachusetts Defense Lawyers Association. I (V 3 distinction between natural and unnatural accumulations of snow and ice, and apply to all hazards arising from snow and ice the same obligation of reasonable care that a property owner owes to lawful visitors regarding all other hazards. 1. The summary Judgment decision. Based on the undisputed facts in the summary judgment record, at some time around 11 A.M. on December 20, 2002, the plaintiff drove to the Liberty Tree Mall in Danvers to shop at the Target department store. The temperature was below freezing, but it was not snowing or raining. The parking lot outside the store had been plowed and was essentially clear, although the plaintiff did notice scattered snow and some areas of ice. The plaintiff parked his automobile in a "handicapped space" close to the store entrance and immediately beside a raised median strip that separated the parking area from the traffic lane running between the lot and the store. In clearing the lot, the snowplow had deposited a pile of snow on the median, but in doing so, the plow -left some , remaining snow on the ground by the edge of the median. The plaintiff left his automobile, entered the store, and made a purchase. As he proceeded toward his automobile after leaving the store, he slipped on a piece of ice that had frozen to the pavement. The ice on which the plaintiff tripped either had fallen from the snow piled on the median or had formed when snow melted and ran off the pile and then refroze to the pavement of the parking lot. The judge concluded that, whether it was a chunk of ice that 4 had fallen from the median or a patch of refrozen runoff from the snow pile, the ice that caused the plaintiff's fall was a "natural accumulation." Because our existing case law holds that a property owner does not violate the duty of reasonable.care by failing to remove natural accumulations of snow and ice, see Sullivan v. Brookline, 416 Mass. 825, 827 (1994), the judge concluded that, as a matter of law, the plaintiff could not prevail on his claims of negligence; therefore, the judge.allowed the defendants' motions for summary judgment. 2. Discussion. The rule that a property owner is not liable in tort for failing to remove a natural accumulation of snow and ice has come to be known in the treatises and the courts of other jurisdictions as the "Massachusetts rule."' We now revisit this rule. To do so requires a brief review of traditional common-law rules that governed the tort liability of property owners in the Nineteenth Century and approximately the first two-thirds of the Twentieth Century, because the natural accumulation rule derived from, and is a relic of, that earlier case law. During this time period, the standard of liability of a property owner for injuries suffered on his property depended on See, e.g., 2 N.J. Landau & E.C. Martin, Premises Liability Law and Practice § 8A. 04 [2] [c] (2010) ; W.L. Prosser & W.P. Keeton, Torts § 61, at 427-428 n.11 (5th ed. 1984); G. Weissenberger & B.B. McFarland, Premises Liability § 9.15 (3d ed.. 2001) (applying term only in context of landlord-tenant law); Woods v. Prices Corner Shopping Ctr. Merchants Ass'n, 541 A.2d 574, 576 (Del. Super. Ct. 1988); Makeeff v. Bismarck, 693 N.W.2d 639, 642 (N.D. 2005); Iwai v. State, 129 Wash. 2d 84, 91 (1996). 0 S the status of the plaintiff, that is, whether the plaintiff was a tenant, an invitee, a licensee, or a trespasser. See Young v. Garwacki, 380 Mass. 162, 164 (1980). See generally Vertentes v. Barletta Co., 392 Mass. 165, 171-174 (1984) (Abrams, J., concurring); Mounsev v. Ellard, 363 Mass. 693, 694-697 (1973) (Mounsev). If the plaintiff was a tenant, the landlord had no duty to the plaintiff to maintain any area under the tenant's control in a safe condition: the lease was treated as a transfer of property, and the landlord was only potentially liable for failing to warn the tenant of hidden defects that the landlord was aware of at the time of the lease. See Young v. Garwacki, supra at 165, and cases cited. If a tenant (or a guest of the tenant) slipped and was injured in a common area that remained under the landlord's control, the landlord could be found liable in tort only if he failed to use reasonable care to keep the common area in a condition no less safe than it was when the tenant first commenced the lease. See Lowe v. National Shawmut Bank, 363 Mass. 74, 77 (1973), and cases cited. See also Woods v. Naumkeag Steam Cotton Co., 134 Mass. 357, 359 (1883) (Woods) ("A tenant who hires premises takes them as they are, and cannot complain that they were not constructed differently"). This limited obligation of the landlord also included a duty not to wantonly or negligently place a dangerous obstruction in the common area. See Watkins v. Goodall, 138 Mass. 533, 536 (.1885). As to the latter duty, the court explained: "[The landlord] is liable for obstructions negligently 9 6 caused by him, but not for not removing obstructions arising from natural causes, or the acts of other persons, and not constituting a defect in the passageway itself. He would be liable for negligently leaving a coal scuttle in a dangerous position, but not for not removing one so placed by another person." id. If the plaintiff was an invitee, defined as a person invited onto the property by the property owner for the property owner's benefit, see Mounsey, supra at 695-697, the property owner owed a duty to use reasonable care to keep the premises "in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk." Id. at 708, quoting Smith v. Arbaugh's Restaurant, Inc., 469 F.2d 97, 100 (D.C. Cir. 1972). This duty required a property owner to make reasonable efforts to repair or remove any dangerous conditions, or at least to warn against any dangers not either known to the invitee or obvious to any ordinarily intelligent person and of which the property owner knew or reasonably should have known. See Kelley v. Goldberg, 288 Mass. 79, 81 (1934). If the plaintiff was a licensee, defined as a person who entered onto the landowner's property for the licensee's "own convenience and pleasure," Mounsev, supra at 697, quoting Sweeny- v. Old Colony & Newport R.R., 10 Allen 368, 373 (1865), the property owner owed a duty only to forbear from inflicting wilful or wanton injury on him. Mounsev, supra at 696-697. If the plaintiff was a trespasser, the property owner's only v` 7 duty was to refrain from wanton and wilful misconduct. Soule v. Massachusetts Elec. Co., 378 Mass. 177, 180 (1979). During a period of "reconsideration and reform" between 1973 and 1980, this court abandoned what it characterized as the "obsolete machinery of the common law," Young v. Garwacki, supra at 166, as it applied to premises liability, eradicated most of these differences in the standard of liability based on the status of the plaintiff, and applied the standard of reasonable care previously applied only to invitees to all but adult trespassers. See id. at 166-169; Soule v. Massachusetts Elec. Co., supra at 184 (applying reasonable care standard to child trespassers); King v. G & M Realty Corp., 373 Mass. 658, 660-661 (1977) (applying reasonable care standard to tenants); Lindsey v. Massios, 372 Mass. 79, 82 (1977) (applying reasonable care standard to persons visiting tenants); Mounsey, su ra at 707-708 (applying.reasonable care standard to licensees and all lawful visitors). As we will demonstrate, the rule that a property owner owes no duty to remove natural accumulations of snow and ice derived from the limited duty a landlord owed to a tenant, but somehow survived after the court concluded that a landlord owes a tenant and his guests the same duty of reasonable care owed to an invitee. Many commentators and out-of-State courts declare, although we have not done so, that the Massachusetts rule that property owners owe no duty to remove natural accumulations of snow and ice originated with this court's 1883 decision in Woods, supra. 91 8 See note 7, supra. In the Woods case, a tenant brought suit against her landlord for injuries she sustained when she fell on a set of ice-covered granite steps located in a common passageway in the yard,of the tenement house she occupied. Id. at 358-359. This court affirmed the trial judge's order directing a verdict in favor of the defendant. Id. at 361. As discussed earlier, under the landlord-tenant law that prevailed at that time, a landlord could be held liable only for failing to exercise reasonable care to prevent the common area from becoming less safe than it had been when the tenant first entered into the lease, or for negligently placing a dangerous obstruction in the common area. Where the obstruction was snow or ice on stairs or a walkway, a landlord could be held liable to the tenant only if he placed the snow or ice there,.or was otherwise responsible for it being there, which he would not be if the snow and ice were a natural accumulation. Therefore, in declaring that the landlord in Woods had no duty to the plaintiff "to remove from the steps the ice and snow which naturally accumulated thereon," id., the court simply applied the general legal principle prevailing at the time that a 'landlord was not responsible to remove an obstruction he did not cause or create.8 e In fact, perhaps because this legal principle was so well known, the.plaintiff did not claim that the landlord had any duty to clear the snow and ice from the steps in the passageway. Rather, the plaintiff alleged that the landlord was liable for failing to place a railing on either side of the steps, and for constructing the steps in such a manner that "they occasioned the accumulation of ice and snow thereon improperly." Woods v. Naumkeag Steam Cotton Co., 134 Mass. 357, 361 (1883) (Woods). 0 9 In Watkins v. Goodall, 138 Mass. 533, 537 (1885), decided two years after the Woods case, the court applied this same principle of landlord-tenant law to another slip and fall case where a tenant fell on an ice-covered walkway in the common area of a tenement block. In that case, however, the court affirmed judgment in favor of the plaintiff because the accumulation of ice that had caused the tenant's fall had come from a broken water pipe, which the landlord was negligent for having not repaired., Id. at 537. "We think it was an artificial formation of ice, resulting directly from the negligent omission of the defendant, for which he was as much responsible as if he had placed the water there by his voluntary act." Id. This legal distinction between "natural" and "artificial" accumulations of snow and ice, because it was used to determine whether the landlord had placed a dangerous obstruction.in a common area, was limited to slip and fall claims brought by tenants, and did not apply to slip-and fall claims brought by invitees, such as employees of a business, because a property owner owed a duty of reasonable care to invitees. In Urquhart v. Smith & Anthony Co., 192 Mass. 257, 263 (1906), for instance, the Applying the governing legal principle of landlord-tenant law of the time, the court held that the plaintiff's claim failed because there was no evidence that, when she began the tenancy, there had been railings along the steps or steps of different construction. Id. at 359 ("A tenant who hires premises takes them as they are, and cannot complain that they were not constructed differently"). See Hawkes v. Broadwalk Shoe Co., 207 Mass. 117, 122 (1910) (explaining Woods under landlord-tenant law). 2`~ 9 10 court affirmed judgment for a plaintiff who had been injured after slipping and falling on a plank walkway covered with ice and frozen snow that his employer had allowed to become "uneven and ridgy" and."unpassable," without any sand or ashes having been placed on the walkway. Id. at 258, 260. The court held that, because the walkway was a part of the defendant's business establishment, it was "the duty of.the defendant to maintain the walk in suitable condition for the convenience of the plaintiff, and if snow and ice were accumulated in such quantities that upon being trampled and then frozen the surface was rendered uneven and dangerous, and so continued for several days before the accident, there was evidence that by reason of its negligence this duty had not been discharged." Id. at 260. The court did not discuss in the Urquhart decision.wh.ether the snow and ice that caused the plaintiff's fall were the result of natural or artificial accumulation because the distinction was irrelevant: the defendant owed its employee a duty reasonably to keep the walkway safe regardless of the source of the snow and ice.'," 9 Because the plaintiff was an invitee rather than a tenant, the court's decision in Urquhart v. Smith & Anthony Co., 192 Mass. 257 (1906), did not cite Woods, supra; Watkins v. Goodall, 138 Mass. 533 (1885); or any other landlord-tenant decision involving slip and falls on snow and ice, no doubt because landlord-tenant law had no relevance to the duty owed by a business property owner to its employee for injuries suffered on the property. io The court also rejected the defendant's contention that, as a matter of law, the plaintiff contributed to the negligence or assumed the risk because he "voluntarily exposed himself to any danger that might be incurred by attempting to use the walk," concluding that these issues were reserved to the Jury. Urquhart 0 11 Our case law in premises liability claims involving snow and ice for many years proceeded on two separate legal tracks, with tenants entitled to relief only where the landlord was negligent in depositing or otherwise causing hazards or obstructions of artificial snow or ice on a passageway within the common area of the premises, and invitees entitled to relief where the property owner acted unreasonably in failing to keep the walkway on the property in a safe condition. Compare Karp v. Boott Mills, 348 Mass. 768, 768 (1964) ("relationship of landlord and tenant,does not impose upon the landlord the duty to remove snow and ice naturally accumulating upon areas provided for the common use of tenants"); O'Donoughue v. Moors, 208 Mass. 473, 475-476 (1911) (no evidence of breach of duty owed by landlord to tenant because "defect upon the walk on which she fell was due entirely to natural causes, the combination of rain and snow with freezing weather"), with Willett v. Pilotte, 329 Mass. 610, 613 (1953) (property owner may be liable for invitee's injuries where it "could be found that the ice was there long enough so that [defendant] knew or ought to have known of its existence, and that he should have removed it, sanded it, or taken some other measures to protect the customers . . . who might unknowingly encounter the danger"); Mansfield v. Spear, 313 Mass. 685, 687 v. Smith & Anthony Co., supra at 261. "It manifestly could not have been ruled as matter of law that because the plaintiff observed the icy surface, he fully appreciated the probability of being injured and then voluntarily exposed himself to any danger that might be incurred by attempting to use the walk." Id. 0 12 (1943) (business property owner could be found liable for invitee's injuries where "[i]t could have been found that the ice was in plain view for sufficient time to enable the defendant and his servants, in the exercise of reasonable care, to make it safe"); Collins v. Collins, 301 Mass. 151, 152 (1938) (homeowner not liable for invitee's injuries where no evidence that homeowner had reasonable opportunity "to remove [ice] or to warn against it or even to ascertain its presence").11 In 1977, in.Kina v. G.& M Realty Corp., 373 Mass. 658, 661 (1977) (King), the court abandoned the common-law distinction between a property owner's duty of care with respect to a tenant and an invitee, and imposed on a landlord a general duty to keep the common areas of a leased premises in a reasonably safe condition. 12 After abandoning this distinction., this court did 11 There was a third legal track, not relevant here, for injuries suffered by a plaintiff on a public way, including a sidewalk and roadway, that abutted a defendant's property. "The owner or occupant of premises abutting on a public way is under no obligation to keep the sidewalk free of snow or ice which came there from natural causes." Bamberg v. Bryan's Wet Wash Laundry, Inc., 301 Mass. 122, 123--124 (1938). The owner of land abutting a sidewalk on which the injury occurred, even if the owner had an easement of travel on the sidewalk, was liable only if the dangerous condition was created by the owner or its employees, or by "the physical state of its abutting land or of structures thereon under its control." Id. at 124. See Mahoney v. Perreault, 275 Mass. 251, 253-254 (1931), and cases cited. 12 The court noted in King v. G & M Realty Corp., 373 Mass. 658, 660 (1977) (King), that the limited duty of a landlord to exercise reasonable care to maintain the common areas in a condition not less safe than they were when the premises were leased to the tenant was "a singular Massachusetts rule; the 'weight of authority'', held otherwise and imposed on the landlord a general, continuing duty to keep the common areas safe. Id. at 660 & n.4, 662 n.8, quoting Reporter's note to Restatement p0) 7i 13 not decide a case where the standard of liability was at issue for a slip and fall injury caused by ice or snow on property owned by a defendant until 1992. In Aylward v. McCloskey, 412 Mass. 77, 80 (1992) (Aylward), the court affirmed the judge's grant of summary judgment for the defendant on the plaintiff's complaint that she had been injured by slipping on snow and ice that had been left unshovelled and unplowed in the defendants' driveway. The defendants had been away from the area at the time of the snowfall and did not know that there was snow or ice on their driveway. Id. at 78. The court recognized that the duty owed by the defendants was one of "reasonable care in the circumstances." Id. at 80, citing Mounsey, supra at 707. It noted that "the simple fact that a person slips on ice on another's property.does not subject the property owner to liability," and concluded that there was no evidence in the record that the defendants had failed to exercise reasonable care in the circumstances. Id. at 80-81. The court also declared, however, that landowners are liable only for injuries caused by defects existing on their property and that "the law does not regard the natural accumulation of snow and ice as an actionable property defect, if it regards such weather conditions as a defect at all." Id. at 79. There was no evidence, the court said in affirming the judgment, that the (Second) of Property Landlord & Tenant § 17.3, at 209 (1977). See 5 F. Harper, F. James, Jr., & O. Gray, Torts § 27.17, at 332 (3d ed. 2008). 0 14 defendants had "created a defective condition on their property" (emphasis added). Id. at 81. In this manner, a relic of abandoned landlord-tenant law was resurrected as an exception to the governing standard of reasonable care. The court then limited this.harsh standard by stating: "To be sure, in circumstances where some act or failure to act has changed the condition of naturally accumulated snow and ice, and the elements alone or in connection with the land become a hazard to lawful visitors, then a defect may exist, creating liability in the owner or occupier." Id. at 80 n.3.13 The court therefore created in Aylward, for the first time in our jurisprudence, a standard of liability specific to slips and falls on snow or ice that depended on a fact finder's determination whether the snow or ice was a natural or unnatural accumulation. Two years later, in Sullivan v. Brookline, 416 Mass. 825, 827-828 (1994), the court reinforced the rule announced in 13 Aylward v. McCloskey, 412 Mass. 77 (1992), cited in support of this limitation Phipps v. Aptucxet Post #5988 V.F.W. Bldg. Assn, 7 Mass. App. Ct. 928 (1979), where the Appeals Court affirmed a judgment for a plaintiff who had slipped on ice on a parking lot controlled by the defendant. In concluding that the defendant knew or should have known of the hazardous condition of the parking lot, the Appeals Court noted that a member of the defendant's board of directors had seen that the parking lot "was like a sheet of ice" eight or nine hours earlier, that the temperature during that time period never exceeded sixteen degrees Fahrenheit, and that the "rutted condition of the parking lot" had been caused by the coming and going of'vehicles. See id. at 929. The Appeals Court did not discuss whether the accumulation of ice and snow was natural or unnatural; it focused only on whether the defendant had reasonable notice of the dangerous condition of the parking lot and could have taken reasonable precautions for the safety of its visitors. 9 15 Aylward by.expressly declaring, as the sole basis for its decision, that the town was not liable-for the plaintiff's injuries arising from his slip and fall on an icy ramp leading to the:town's health center because the plaintiff had provided no evidence that the ice was anything but a natural accumulation. The town, the court said, had no obligation to remove or to apply sand to the ice because "naturally accumulated snow and ice on property does not per se constitute a defective condition." Id. at 829, quoting Aylward, supra at 79. Like the long-standing distinctions among tenants, licensees, and invitees now discarded, the reliance on a distinction between natural and unnatural accumulation has sown confusion and conflict in our case law. we now discard the distinction between natural and unnatural accumulations of snow and ice, which had constituted an exception to the general rule of premises liability that a property owner owes a duty to all lawful visitors to use reasonable care to maintain its property in a reasonably safe condition in view of all the circumstances. See Mounsey, supra at 708. "Complexity can be borne and confusion-remedied where the underlying principles governing liability are based upon proper considerations, but the . . . distinction and the specious guidelines it generates obscure rather than illuminate the relevant factors which should govern determinations of the question of duty. ,14 Id. at 70.6, quoting 14 The court also said: "The problem of allocating the costs and risks of human injury is far too complex to be decided 0 16 Rowland v. Christian, 69 Cal. 2d 108, 117 (1968). Determining liability for a slip and fall injury based on whether the plaintiff fell on a natural rather t)aan an unnatural accumulation of snow or ice is not "based upon proper considerations." The only rationale the decisions.of this court have offered in support of this rule is that a property owner owes a duty to repair or warn of defects on the property, and a natural accumulation of snow or ice is not a defect. Sullivan v. Brookline, supra at 827, quoting Aylward, supra at 79. Implicit in this rationale is that a dangerous condition on one's property can be a defect only if it is created or caused by the property owner.. We do not accept this rationale where a property owner knows or has reason to know that a banana peel has been left on a floor by a careless customer; we have long held that the property owner has a duty to keep the property reasonably safe for lawful visitors regardless of the source of the danger. See Anjou V. Boston Elevated Ry., 208 Mass. 273, 274 (1911). See also Sheehan v. Roche Bros. Supermarkets, Inc., 448 Mass. 780, 791-792 (2007). The rationale has no greater force when the source of the danger is an act of nature rather than an act of another person. Nor do we find the two justifications for the natural accumulation rule offered by contemporary authorities persuasive. solely" by this single consideration of whether the plaintiff is an invitee or licensee, especially where it "often prevents the jury from ever determining the fundamental question whether the defendant has acted reasonably in light of all the circumstances in the particular case." Mounsey v. Ellard, 363 Mass. 693, 707 (1973). P 17 First, it is suggested that the rule reflects a judgment that hazards created by accumulations of snow and ice are in general equally open and obvious to a visitor as to a property owner, and that a property owner owes no duty because a visitor charged with such knowledge can be counted on to look after his or her own safety. See 2 N.J. Landau & E.C. Martin, Premises Liability Law and Practice § 8A.04[2][c], at 8A-120 8A-122 (2010), and cases cited. The open and obvious doctrine provides that a property owner has no duty to warn of an open and obvious danger, because the warning would be superfluous for an ordinarily intelligent plaintiff. O'Sullivan v. Shaw, 431 Mass. 201, 206 (2000). Implicit in the open and obvious doctrine, however, is the assumption that the warning provided by the open and obvious nature of the danger is by itself sufficient to relieve the property owner of its duty to protect visitors from dangerous conditions on the property. See id. at 204. A property owner, however, is not relieved from remedying an open and obvious danger where it "can and should anticipate that the dangerous condition will cause physical harm to the [lawful visitor] notwithstanding its known or obvious danger." Soederbera v. Concord Greene Condominium Ass'n, 76 Mass. App. Ct. 333, 338 (2010) (Soederbera), quoting Restatement (Second) of Torts § 343A comment f, at 220 (1965). "[O]ne of the specific circumstances where harm to others is foreseeable is 'where the [property owner] has reason to expect that the [lawful visitor] will proceed to encounter the known or obvious danger because to a 18 reasonable man in his position the advantages of doing so would outweigh the apparent risk.'" Soederbera, supra, quoting Restatement (Second) of Torts, supra. It is not reasonable for a property owner to leave snow or ice on a walkway where it is reasonable to expect that a hardy New England visitor would choose to risk crossing the snow or ice rather than turn back or attempt an equally or more perilous walk around it. See Soederbera, supra at 338-339, and cases cited ("Our case law is replete with examples of people who, upon encountering snow or ice hazards, nevertheless continued to venture forward in the belief that they could do so safely if they proceeded with care"). Therefore, even if snow and ice were properly viewed as an open and obvious danger, this fact alone will not always relieve a property owner of the duty to use reasonable care in making the property reasonably safe for lawful visitors. In addition, the openness and obviousness of snow and ice have nothing to do with whether such accumulations are natural rather than unnatural, so the open and obvious doctrine cannot justify the distinction we now abandon. The second justification offered for the natural accumulation rule is that enforcement of an affirmative obligation to remove natural accumulations of snow and ice would be impractical, if not impossible, given the nature of the winter climate in the Commonwealth. See 2 N.J. Landau & E.C. Martin, Premises Liability Law and Practice, supra, and cases cited. See also Aylward, supra at 80-81. This argument has proven 33 19 unpersuasive to every other Supreme Court in New England, which have all rejected the so-called Massachusetts rule of natural accumulation.11.16 The Supreme Court of Rhode Island cogently defeated this argument by stating: "We believe that today a landlord, armed with an ample supply of salt, sand, scrapers, shovels and even perhaps a snow blower, can acquit himself quite admirably as he takes to the common passageways to do battle with the fallen snow, the sun-melted snow now turned to ice, or the frozen rain. We fail to see the rationale for a rule which grants a seasonal exemption from liability to a landlord because he has failed to take adequate precautions against the hazards that can arise from the presence of unshoveled snow or unsanded or salt-free ice found in the areas of his responsibility but yet hold him liable on a year round basis for other types of defects attributable to the workings of mother nature in the very same portions of his property." Fuller v. Housing Auth. of Providence, 108 R.I. 770, 773 (1971). Perhaps because the distinction between natural and unnatural accumulations was not based on "proper considerations," the "distinction and the specious guidelines it generates obscure rather than illuminate the relevant factors which should govern determination of the question of duty.!'. See Mounsey, su-pra at 706. The distinction forces judges and juries to focus not on whether the property owner acted reasonably to keep the property 15 See Reardon v. Shimelman, 102 Conn. 383, 388-389 (1925); Isaacson v. Husson College, 297 A.2d 98, 104 (Me. 1972); Dubreuil v. Dubreuil, 107 N.H. 519, 522 (1967); Fuller v. Housing Auth. of Providence, 108 R.I. 770, 773-774 (1971); Smith v. Monmaney, 127 Vt. 585, 589 (1969). 16 While Maine relies on a general negligence standard for a slip and fall on snow or ice where the plaintiff is a business invitee of the defendant, Isaacson v. Husson College, supra, Maine has not abandoned the natural accumulation rule as a limitation on a landlord's liability to a tenant. See Rosenberg v. Chapman Nat'l Bank, 126 Me. 403, 405 (1927). 3~ 20 safe, but on whether the accumulation of snow and ice was natural or unnatural, which depends on whether the property owner, by its act or failure to act, changed the condition of the naturally accumulated snow and ice so that the unnatural accumulation, either alone or in connection with some other defect on the property, became a hazard to lawful visitors. See Sullivan v. Brookline, 416 Mass. 825, 829 (1994); Aylward, supra at 80 n.3. This distinction 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 even the passage of time. Consequently, the court suggested that large ruts in the snow.created by tire tracks and footprints frozen in ice in a parking lot constituted an unnatural accumulation that could form the basis for liability. Aylward, supra, citing Phipps v. Aptucxet Post #5988 V.F.W. Bldg. Ass' n, 7 Mass. App. Ct. 928, 929 (1979). The court also suggested that the passage of time alone may be sufficient to transform a natural accumulation into an unnatural one. Sullivan v. Brookline, supra at 829.n.3, and cases cited. Therefore, while we have said that a property owner has no duty to clear a natural accumulation of snow or ice, we have also recognized the possibility that, if the property owner were to fail to do so over a considerable period of time, the natural accumulation may become an unnatural accumulation, which the property owner then has a duty reasonably to clear to make the area safe for lawful visitors. 3~. 21 The difficulties of applying the distinction were not diminished where a property owner undertook efforts at removal. In Sullivan v. Brookline, supra at 827-828, the court reversed a jury verdict for a plaintiff injured by slipping on an icy entrance ramp to a municipal building because, while the evidence showed that town employees had shovelled snow from the ramp to expose an underlying layer of ice, the court held there was no evidence that the shovelling had actually created the ice on the ramp. "Liability does not attach . . . when a property owner removes a portion of an accumulation of snow or ice and a person is injured byy'slipping and falling on the remainder because the [unremoved] snow or ice remains as a natural accumulation." Id. at 828. The court thereby drew a distinction between removal efforts that alter the natural state of accumulated snow and ice, which if negligently conducted may expose the property owner to liability, and efforts that merely clear a top layer of snow to expose a remaining natural accumulation, which could not provide a basis.for liability even if they increase the risk of injury. See id. at 827-828. See also Barrasso v. Hillview W. Condominium Trust, 74 Mass. App. Ct. 135, 137-138 (2009) (Barrasso). While the shovelling of snow inevitably alters any natural accumulation of snow, the uncertain distinction between a natural and unnatural accumulation of snow has led the Appeals. Court to conclude that all snow shovelled into a snowbank does not thereby become an unnatural accumulation, but it can become so in certain circumstances. For instance, in Barrasso, supra at 136, the 9 . 22 motion judge found that a three-foot wide snowbank created by the defendant's plowing was a natural accumulation of snow, which dictated a grant of summary judgment against a plaintiff who had been injured while trying to navigate it. The Appeals Court, relying on evidence that the plaintiff had been injured by a large piece of compacted snow and ice contained within the snowbank, reversed the allowance of the defendant's motion for summary judgment, concluding, "Even if the movement of naturally accumulated snow into a snowbank by a plow still left it a 'natural accumulation' and that would not be an ordinary usage of the word 'natural' we conclude that under any reasonable interpretation, when snow is compacted by a plow it is not a 'natural accumulation' within the meaning of the relevant cases." Id. at 138. See, e.g., Reardon v. Parisi, 63 Mass. App. Ct. 39, 46 (2005) (reversing grant of summary judgment to defendant property owner where question of fact remained whether ice that formed on parking lot as result of runoff from snow plowed to edge of lot was unnatural condition created or heightened by manner of construction of parking lot). The Appeals Court has concluded from our precedents that even snow removal efforts that "foreseeably increase the risk of mishap" may not transform a natural accumulation of snow and ice into an unnatural one, so as to permit a finding of liability. Goulart v. Canton Hous. Auth., 57 Mass. App. Ct. 440, 443 (2003). If this interpretation of our precedents is correct, it would at a minimum contravene the general rule of tort law that, once a 9 23 person acts to mitigate a potential hazard to another, he will be liable for harm resulting from a failure to exercise reasonable care, even where no preexisting duty to act was owed. See Davis v. Westwood Group, 420 Mass. 739, 746 & n.12 (1995) (adopting principle set forth in Restatement [Second] of Torts. § 323 [1965] that "a duty voluntarily assumed must be discharged with due care"). More important, if the law of natural accumulation yields this result, we may fairly question what socially beneficial purpose the rule serves. We now will apply to hazards arising from snow and ice the same obligation that a property owner owes to lawful visitors as to all other hazards: a 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." Young v. Garwacki, 380 Mass. 162, 169 (1980), quoting Sargent v. Ross, 113 N.H. 388, 397-398 (1973). See Reardon v. Shimelman, 102 Conn. 383, 388 (1925) ("The duty of the landlord being to exercise reasonable care to prevent the occurrence of defective or dangerous conditions in the common approaches, the fact that a particular danger arose from the fall of snow or the freezing of ice can afford no ground of distinction"). This introduces no special burden on property owners. 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 railing, or a discarded banana peel, the property owner owes a 0 24 duty to lawful visitors to make reasonable efforts to protect lawful visitors against the danger. See Sheehan v. Roche Bros. Supermarkets, 448 Mass. 780, 782-784 (2007); Restatement (Second) of Torts § 343 (1965). See also Reardon v. Shimelman, supra at 389 ("an accumulation of ice or snow upon a,common approach to a tenement house may impose upon the landlord a liability for injuries due to it, provided he knew, or in the exercise of a reasonable oversight ought to have known, of the existence of a dangerous condition and failed to exercise reasonable care to provide against injury by reason of it"). Under this traditional premises liability standard, a fact finder will determine what snow and ice removal efforts are reasonable in light of the expense they impose on the landowner and the probability and seriousness of the foreseeable harm to others. Mounsey, supra at 709. The duty of reasonable care does not make a property owner an insurer of its property; "nor does it impose unreasonable maintenance burdens." Id. 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. See Restatement (Second) of 301 25 Torts, supra at 343 comment e.l' 'The defendants have urged that, if we were to abolish the, rule of natural accumulation, we should apply our new rule only prospectively. We conclude that. the circumstances do not warrant an exception from the normal rule of retroactivity. "In general, changes in the common law brought about by judicial decisions are given retroactive effect." Halley v. Birbiglia, 390 Mass. 540, 544 (1983). See Tamerlane Corp. v. Warwick Ins. Co., 412 Mass. 486, 489 (1992); Schrottman v: Barnicle, 386 Mass. 627, 631 (1982). See also Tucker v. Badoian, 376 Mass. 907, 918-919 (1978) (Kaplan, J., concurring). "[T]he class of decisions given 17 The reasonable care standard we adopt is sometimes referred to as the "Connecticut rule," because of the Supreme Court of Connecticut's decision in Reardon v. Shimelman, 102 Conn. 383 (1925), rejecting the Massachusetts rule of natural accumulation' and adopting instead a rule requiring a landlord to exercise reasonable care in preventing dangerous conditions in common areas due to accumulations of snow and ice. See, e.g., Makeeff v. Bismarck, 693 N.W.2d 639, 642 (N.D. 2005); 2 N.J. Landau & E.C. Martin, Premises Liability Law and Practice 8A.04[2][c] at 8A-122 8A-125 (2010). The majority of States have followed the Connecticut rule rather than the Massachusetts rule of natural accumulation. See id. at 8A-122 8A-123. See also G. Weissenberger & B.B. McFarland, Premises Liability § 4.6, at 102-104;,§ 9.15, at 259-261 (2001), and cases cited. In 1989, however, the Supreme Court of Connecticut added a new variant to the so-called Connecticut rule, providing that "in the absence of unusual circumstances, a property owner, in fulfilling the duty owed to invitees upon his property to exercise reasonable diligence in removing dangerous accumulations of snow and ice, may await the end of a storm and a reasonable time thereafter before removing ice and snow from outside walks and steps." Kraus v. Newton, 211 Conn. 191, 197-198 (1989). Because the plaintiff here did not slip on snow or ice during a snow storm, we need not and do not decide today whether we agree with this interpretation of the duty of reasonable care. The decision whether to adopt.such an interpretation should await our review of a case that presents such facts, where the issue may be fully briefed. 0 26 only prospective application is usually limited to contract and property law cases, in which reliance upon existing judicial precedent often influences individual action.- Hallev v. Birbiglia, supra at 545, and cases cited. Reliance plays a much smaller part under tort law than under contract and property law, because it "would be unreasonable to assert that potential tortfeasors often reflect upon possible tort liability before embarking on a negligent course of conduct." Id., quoting Payton v. Abbott Labs, 386 Mass. 540, 565-566 (1982). Therefore, changes to the common law that have the potential to expand tort liability should be limited to prospective application only where it is likely that decisions involving insurance coverage have been made in substantial reliance on the previously existing common law. See Payton v. Abbott Labs, supra at 566-567.18 Consistent with this practice, we did not limit to prospective application those decisions where we abolished the common-law. distinctions in premises liability among licensees, invitees, tenants, or guests of tenants. See Young v. Garwacki, 380 Mass. 162, 172 (1980); Kin v. G & M Realty Corp., 373 Mass. 658, 663 n.9 (1977); Bouchard v. DeGagne, 368 Mass. 45, 49 (1975); Jordan " Such reliance was a significant consideration, for instance, where the court changed the method of computing time in insurance cancellation cases, see Tamerlane Corp. v. Warwick Ins. Co., 412 Mass. 486•, 490-491 (1992), and where a decision of the court or an act of the Legislature eliminated the immunity from suit previously held by a large class of defendants. See Whitney v. Worcester, 373 Mass. 208, 225 (1977) (governmental immunity); Ricker v. Northeastern Univ., 361 Massa 169, 171-172 (1972) (charitable immunity). 27 v. Goddard, 14 Mass. App. Ct. 723, 730 (1982). See also Soule'v. Massachusetts Elec. Co., 378 Mass. 177, 184-185 (1979) (applying retroactively new common-law rule imposing on property owners duty of reasonable care to child trespassers). We see no reason to limit our holding today to prospective application, where it is based on similar considerations.19 Retrospective application of our decision is unlikely to result in hardship or inequity for property owners for two reasons. See Schrottman v. Barnicle, supra at 631-632; Bouchard v. DeGagne, supra. First, because the distinction between natural and unnatural accumulation was so difficult to define, and because a natural accumulation could so easily become an unnatural accumulation, a property owner would not likely rely on the natural accumulation rule in deciding whether to clear walkways, stairs, and parking lots, or in procuring insurance coverage for slip and fall injuries arising from snow and ice. The defendants here plowed and cleared the parking lot even under the theoretical protection of the natural accumulation rule;. there is no reason to believe they would have acted.differently under the reasonable care standard. Second, most property owners have long been required by State regulations to keep all means of access and egress free of snow and ice at all times. See 105 " our holding today is not to be regarded as in any way benefiting or reviving the action of a plaintiff whose claim for physical injuries has been concluded by judgment or settlement.or by the running of the statute of limitations. Bouchard v. DeGa cne, 368 Mass. 45, 49 (1975). 0 28 Code Mass. Regs. § 410.452 (1997) (applying requirement under State sanitary code governing human habitation); 527 Code Mass. Regs. § 10.03(13)(d) (2009) (requiring clear egress from buildings, free of snow and ice, under State fire code); 780 Code Mass. Regs. § 1001.3.2 (2008) (requiring all exterior stairways and fire escapes be kept free of snow and ice under State building code). The reasonable care standard we impose is less demanding than these regulatory requirements. Conclusion. Because we now abolish the distinction between the natural and unnatural accumulation of snow.and ice, and because we apply the premises liability standard of reasonable care retroactively to injuries from slips and falls arising from accumulations of snow and ice, we vacate the allowance of summary judgment in favor of the defendants, and remand the case to the Superior Court for reconsideration of the defendants' motion for summary judgment in light of this opinion. So ordered.