As today’s Globe reminds us (hat tip to Ted Frank at Point of Law for bringing the story to my attention), tonight’s blizzard will be the first large snowfall that we’ve seen since the Supreme Judicial Court abolished the so-called “natural accumulation” rule in a decision that was issued while we were enjoying the warmth of the July sun.
I’ve been meaning to blog about all the recent coverage that the case – Papadopoulos v. Target Corporation – has received in the local media. While Brian MacQuarrie’s Globe piece gets the law right, some of the coverage has bordered on the sensationalistic. For example, the other day I heard a teaser on my beloved WBUR (our local NPR affiliate) intoning that the case “eliminates virtually every excuse” that a landowner can offer to avoid liability in a slip-and-fall case involving ice and snow.
Not quite.
As I blogged in August, the case simply brings Massachusetts law into line with the common law of every other American jurisdiction by abolishing an archaic rule that lawyers called the “natural accumulation doctrine.” Prior to the Supreme Judicial Court’s decision in Papadopoulos, judicial opinions in other states referred to the natural accumulation doctrine as “the Massachusetts rule” because we were the only state to have a rule stating that property owners were not liable for injuries arising from the natural accumulation of snow and ice.
Under the new rule adopted in Papadopoulos, property owners will have a duty to use reasonable care in the removal of snow and ice from their property. That’s it. End of story. Finito. Henceforth we’ll follow the same legal rule as the other forty-nine states in our Union. That’s the big change that the local media are breathless about.
If you are the type of person who is interested in arcane developments in the law of slip-and-fall injuries in Massachusetts, you can read my original, more in-depth blog post about the changes in the law of snow-and-ice removal by clicking here.

Continue reading →

In what is being hailed as one of the most important Massachusetts premises liability cases in decades, the Supreme Judicial Court last week in Papadopoulos v. Target Corporation abolished the so-called “natural accumulation” rule that had long governed Massachusetts slip-and-fall cases involving snow and ice.
The so-called “natural accumulation” rule held that Massachusetts property owners were not liable for injuries resulting from the natural accumulation of snow and ice on their properties. So, for example, if a snowstorm dropped a foot of ice and snow on a Massachusetts property, the property owner could not be held liable if a visitor slipped and fell on that virgin snowfall because it was “natural accumulation.”
Of course what was natural accumulation and what was some artificial alteration of the natural accumulation was never really clear. As the Supreme Judicial Court noted in last week’s decision, the distinction between natural and unnatural accumulation, “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 the passage of time.” The natural accumulation rule had even resulted in the absurdity that property owners who shovel away a top layer of snow, revealing a bottom layer of ice, were not liable to individuals who slipped on the ice because the bottom layer of ice was considered “natural accumulation.” Barrasso v. Hillview West Condominium Trust, 74 Mass. App. Ct. 135 (2009).
The natural accumulation rule was such an outlier that, in other jurisdictions, it was referred to as the “Massachusetts rule.” All of the other courts in snowy New England had rejected it and imposed a duty of reasonable care on property owners.
In Papadopoulos, the Supreme Judicial Court finally joined those other jurisdictions, holding that a property owner will now owe the same duty of reasonable care regarding dangers arising from snow and ice on his property that he owes with regard to all other hazards to lawful visitors on his property. What exactly is that duty of reasonable care, what are its flesh and sinews? In last week’s opinion, the Supreme Judicial Court stated: “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.”
The new reasonable care standard is a far superior rule to the old “natural accumulation” rule. The natural accumulation rule was unclear and therefore difficult and expensive to apply. Furthermore, property owners did not rely on it. Because the distinction between what was “natural” accumulation and what was “unnatural” was so illusory, the legal standard made no difference to the way that businesses actually plowed their property. And regardless of the legal standard, any business owner who wanted to attract patrons would have to plow and shovel his property.
Next winter, we’ll get our first opportunity to see how this new legal rule will develop in Massachusetts.

Continue reading →

Last week, I was breezing through some blog posts over at Concurring Opinions and I saw that law professor Lawrence Cunningham had posted a link to a new law review article that he had written. The post invited criticism of the article and its conclusions.
Since the article was on a topic of great interest to me – the intersection of personal injury law and economics – I took the time to read it and offer my criticisms and feedback here.
In the article, Professor Cunningham compares two approaches to personal injury law – the “traditional” approach taken by most judges and the so-called “law and economics” approach that attempts to apply the insights of economics to cases. The article compares these two different approaches – as embodied by Judge Richard A. Posner and Judge Cardozo (Posner an alive-and-kicking disciple of economics; Cardozo an influential early twentieth century judge).
The “traditional” approach to negligence, at least as described by Cunningham, is law not necessarily informed by the insights of economics. What Cunningham calls the “traditional” approach to the law of negligence is an “open-textured” approach, where juries’ determinations of negligence draw upon social norms, ethics and personal experience.
The “traditional” approach to the law of negligence differs from the approach of the “law and economics” school, which is headed up Judge Posner and which strives to apply some of the insights of economics to the law. Instead of thinking about negligence in terms of abstract legal principles, someone like Judge Posner is likely to assess whether an action was negligent through a sort of cost-benefit analysis.
Ultimately, Cunningham finds the approach of Judge Posner and others in the “law and economics” school to be lacking for several reasons, including the lack of flexibility in a cost-benefit analysis, the difficulty of assigning dollar values to certain course of action and the failure of the economic approach to yield clear outcomes. Cunningham also takes the “law and economics” school to task for its neglect of people’s personal experience and moral values.
As a practicing personal injury lawyer, I don’t see things as black-and-white as a legal academic like Cunningham does. While I agree that an economic approach to the law is necessarily incomplete, I’m not such a big fan of the “traditional” approach either. The traditional approach can every bit as arid as cost-benefit analysis and can lead to jurors giving disproportionate attention to legal doctrines that were better-suited for other times and places. (I just finished trial lawyer Rick Friedman’s book The Rules of the Road, which warns that plaintiffs always lose when they let defense lawyers frame negligence issues in terms of the (traditional) “reasonable person” standard). So far as I am concerned, an economic approach at least encourages juries to weigh things for themselves, instead of giving them some pre-assigned weight of legal importance. It frees them up to consider all aspects of social welfare and not just principles the law tells them are germane. And, I have had success in applying some of the principles of economics to personal injury actions.
Herewith, then, some criticisms of Cunningham’s article:

• At times Cunningham attacks a straw man, when he assumes that an economic approach to the law requires that we believe that people behave as rational, computer-like value maximizers, as homo economicus. Cunningham argues that the merits of a cost-benefit approach are particularly suspect when we are dealing with “spontaneous decisions,” and decisions that are made by drowsy, hungry and basically all-too-human people.
  In fact, however, it seems likely that economics can be stretched to be more forgiving of human fallibility. One of the most vital fields of economics right now is “behavioral economics.” Behavioral economics does not assume that humans behave as super-rational value maximizers; instead it understands that we are subject to committing certain errors because of our limited cognitive faculties. The insights of behavioral economics have turned economists like Dan Ariely into best-selling authors. In fact, some legal scholars, like Cass Sunstein, are right now applying the insights of behavioral economics to “humanize” the field of regulatory law.

• Another shortcoming to Cunningham’s analysis is that it does not credit the role that economics can play for us when resort to our moral intuitions or tradition fails. This week a federal judge invalidated a patent on a breast cancer gene, upsetting long-standing belief that such genes were patentable. Obviously, with this sort of legal question, it’s difficult to draw upon traditional community standards for answers. It may also be difficult to rely on morals for guidance. I don’t like the idea of someone owning a patent on a human gene, but if patents on genes are necessary to incentivize pharma companies to do the R&D on better treatments, they may be a necessary evil. I’d look to economists for guidance about whether such a patent actually encourages R&D that could lead to us finding a breast cancer cure, rather than basing my opinion on traditions and personal ethics. (To be fair to Cunningham, however, his article dealt with the impact of law and economics in tort law, and not its suitability for work in fields like antitrust law or intellectual property).

…..This post is getting pretty long, so if you’d like to read the rest, you can find it below the fold…….

Continue reading →

The Massachusetts Supreme Judicial Court is poised to reconsider a longstanding rule in premises liability cases – the so-called “natural accumulation rule” – leading some defense lawyers to fear that the SJC’s decision could pave the way for a tidal wave of new premises liability lawsuits.
Under the “natural accumulation rule,” which has been a part of Massachusetts law for more than a century, property owners are not liable if someone slips on a “natural accumulation” of snow or ice that is on their property. So, to oversimplify a bit, if someone slips on virgin snowfall or naturally occurring ice, the property owner will not be held liable. But if the snow or ice is altered from its natural state – for example, by water flowing from a gutter pipe – the property owner may be held liable.
The natural accumulation rule has led to a raft of precedents that are difficult, if not impossible, to reconcile with one another. After years of complaints about the inconsistent application of the rule and the lack of any underlying public policy rationale, the Supreme Judicial Court recently agreed to hear arguments in the case of Papadopoulos v. Target Corporation and to consider the question of “whether, in a premises liability action involving snow and ice, the distinction between natural and unnatural accumulations of snow and ice should continue to be a factor under Massachusetts law.”
In the Papadopoulos case, Mr. Papadopoulos slipped in the parking lot of a Target department store that had recently been snowplowed, resulting in a hip injury that required surgery. However, a trial court judge threw out his case, ruling that the ice he slipped on was “natural accumulation.”
Hopefully, the Supreme Judicial Court will abolish the natural accumulation rule. The rule gives property owners and commercial tenants no incentive to properly shovel, plow and sand their property. It is an outlier in Massachusetts law because landlords are responsible for keeping their property in safe condition in virtually all other areas. As Mr. Papadopoulos’ lawyer argues, Target has a duty to “repair defective walkways, fix the cracks in their parking lot [and] clean up spills in their stores.” There should be a corresponding duty to keep their property free of snow and ice.
Check back here for updates on the Papadopoulos case. There will be a post about the case’s outcome and posts about new rules the Supreme Judicial Court might consider.

Continue reading →