Bed Bugs Are Biting Again

By Jeffrey Turk, Esq.

I have become something of an expert on bed bugs. This was by no means a career ambition; I did not grow up wanting to know everything there was to know about bed bugs and would be happily ignorant about them today. But they have become a major problem for the owners and managers of residential and commercial properties, and the problem is worldwide.

“We are on the threshold of a bed bug pandemic,” the National Pest Management Association warned recently.

That we are talking about bed bugs at all, let alone a bed bug “pandemic,” is surprising. Until recently, these pests were encountered only in history books and old sayings, as in “don’t let the bed bugs bite.” But the banning of pesticides that had virtually eradicated the bugs has given them new life and international travel has given them wings.

The bugs themselves don’t have wings, but they attach themselves invisibly to the luggage and clothes of travelers, who have transported them via airplanes, buses, trains and cars to hotels, office buildings, shopping malls, schools, theaters and, of course, beds all over the world.

Bed bugs are small – less than an inch long – and resilient. They reproduce enthusiastically, spread rapidly and can live for up to a year without food, their food of choice being the blood of the sleeping humans they bite. Good housekeeping isn’t a factor; the bugs will infest the most pristine of dwellings, and they reside as comfortably in offices as in homes, hiding in desks, chairs and couches as well as mattresses, and hunkering down in the tiniest cracks and crevices, making them hard to find and, once embedded, harder still to dislodge. A measure of the difficulty: Pest control companies in Ohio and Kentucky have asked for a waiver to use chemicals the Environmental Protection Agency has banned, to deal with infestations they haven’t been able to cure otherwise.

Cover Story

There is no question bed bugs are getting more attention. They haven’t appeared on Oprah yet, but they did make the cover of a recent issue of the New Yorker magazine, under the headline, “Bed Bugs and Beyond.” The New York Times reports that the number of Google searches for bed bugs increased by 83 percent in the past year, and there is even a web site (Bedbugger.com) devoted to the topic. A housing agency in Toronto recently sponsored an all-day seminar on bed bugs and what to do about them, while in New York, a newly enacted ordinance requires landlords to disclose prior bed bug infestations to rental applicants and existing tenants. I have been lecturing on bed bugs at conferences around the country and these sessions are always filled. I have no illusion about the reason: It’s the topic (bed bugs), not the speaker that is the draw.

Pest management companies reported revenues of $258 million for bed bug extermination last year, compared to $98 million in 2006. That probably counts as good news for pest control companies, but not so much for the residents whose homes become infested or for the landlords, property managers and association boards that have to deal with their complaints.

Although bed bugs aren’t known to carry communicable diseases, their bites trigger an allergic reaction in many people – resulting in itchy, painful welts. And the bugs are gross. Just the thought of them makes people twitchy and angry – and inclined to sue the landlords, or community associations, or hotels in which the bugs appear.

One couple sued a Catskill hotel for $20 million after the wife was hospitalized for treatment of an allergic reaction she suffered from 500 bug bites she received. A singer, similarly, sued a Hilton hotel for $6 million, claiming permanent psychological damage from the more than 150 bed bug bites inflicted on her during a stay at the facility. The hotel’s offer to waive the fee for one night was not adequate, the singer said.

In one of the few cases that has produced an appellate decision, the Seventh Circuit upheld a jury award of $5,000 for compensatory damages and $186,000 in punitive damages for a bed-bug-bitten Motel 6 guest, who charged that the hotel ignored complaints about the bugs, failed to address the problem and continued renting rooms to unsuspecting guests. The Appellate Court agreed that the hotel’s failure to take corrective action and failure to warn guests about the problem “amounted to fraud and probably to battery as well.”

Landlord’s Obligation

Most of the reported bed bug cases to date have involved hotels. The relatively few cases involving rental properties have produced mixed decisions about the liability of the landlords, depending on their knowledge of the problem and the steps they took to deal with it. In one particularly egregious case, a tenant complained endlessly about bed bugs, to no avail. His unit became so infested that the tenant first slept on the balcony, then got an air mattress, then covered everything in plastic and finally tried sleeping on a metal cot in his bathtub. The court found the landlord’s refusal to respond unacceptable and his liability significant.

The state Sanitary Code in Massachusetts (and in many other states) requires landlords to keep dwellings free of insects and other pests, so there is little question about their obligation to respond to an infestation, once they become aware of it. But bed bug infestations are complicated for two reasons:

• Unlike most other pests – spray once and they’re gone – bed bugs often require multiple treatments; and
• Successful treatment requires the cooperation of tenants, who must bag virtually everything in their units, eliminate clutter, and wash and/or dry all their clothes. Without those steps, some bugs will survive and reproduce, continue to infest the targeted apartment and, inevitably, spread to others. For this reason, landlords can’t (and shouldn’t) simply throw up their hands if a tenant refuses to cooperate; they should seek a court order, if necessary, to compel cooperation in order to prevent a building-wide infestation that would be more complicated and more difficult to cure.

Bed bug infestations in rental properties raise another tricky question ¾the landlord’s potential liability (if any) for damage to personal property. This question arises because exterminators sometimes recommend disposing of furniture or clothing that can’t be effectively purged of bugs; and because, even when exterminators don’t recommend disposal, tenants sometimes “freak out” over bed bugs, jettison everything in sight, and then insist that the landlord compensate them for the loss.

Although we haven’t seen any court decisions on this question yet, we don’t think landlords have any liability for personal property lost or damaged in connection with a bed bug infestation, regardless of whether the exterminator recommends the disposal of the property or not. An infestation might constitute a breach of the warranty of habitability, justifying a temporary reduction in the tenant’s rent as long as the problem persists. But landlords would be responsible for property damage only if their negligence caused the infestation, which is unlikely to be the case. Nothing landlords do or fail to do will bring bed bugs into an apartment. More often than not, it is tenants who cause an outbreak, bringing in bed bugs attached to their luggage after a trip or in used furniture or used clothing that they purchase – one of the major sources of infestations.

At least thus far, no courts have found that the mere presence of bed bugs creates a claim for monetary damages for the loss of personal property. Our advice to landlords: As long as they respond prudently to bedbug complaints, we don’t think they will have any serious liability risks in this area.

The question thus becomes, what does it mean to respond prudently? The answer, unfortunately, is neither clear nor simple. Some experts believe the only proper response is a chemical treatment. Others insist that heating machines and other non-invasive, non-chemical technologies are the best treatments. My suggestion, which appears to be accepted by courts, is to follow the recommendations of your professional exterminator. If the exterminator says treating the infested unit alone with a single application is sufficient, fine. If he/she advises treating all the adjacent units with multiple applications, do it. Just make sure your exterminator has experience ¾ and a successful track record ¾ eradicating these pests.

It appears that following the recommendations of a licensed “professional” will demonstrate to a court that you were acting prudently and reasonably, thereby avoiding a negligence claim. In fact, in the cases in which courts have assessed actual and punitive damages against landlords and property owners have usually resulted from findings that they failed to comply with the directions of the exterminator.

A Common Area Problem

Although the ownership structure of condominiums is different, the concerns are similar to those of rental property owners and so is our advice to community associations. Condominium owners, who are responsible for maintaining their own residences, also arguably should be responsible for dealing with bed bugs individually as well. But because the pests spread so quickly, and because building-wide infestations are so difficult to control, unless an infestation clearly originated in a particular unit and is wholly contained there, we recommend that associations deal with bedbug extermination as a common area expense.

At least one association we know of is insisting that one owner pay the cost of exterminating the entire complex, claiming that this owner was responsible for introducing the bugs. We think this assertion will be difficult, if not impossible, to prove. While this owner’s unit may be less well kept than others, and the owner himself may be “unclean” (as the board alleges), bed bugs aren’t related to housekeeping skills or personal hygiene, or income. Just because one owner is first to notice or report bed bugs in his/her unit doesn’t prove conclusively that the problem originated there.

For landlords and community associations dealing with bedbug complaints (and if you haven’t yet, the odds are you will at some point in the future), we recommend the following:

1. Respond quickly and prudently to tenant/owner complaints and keep a detailed written record of the complaints and your responses.
2. Bring in a professional, licensed exterminator who has experience eradicating bed bugs, and follow the expert’s recommendations. Court cases to date suggest that obtaining and following an expert’s advice can provide something of a safe harbor from liability claims.
3. Obtain a court order, if necessary, to secure the cooperation of individual tenants and owners in treating their units. As noted earlier, a tenant’s refusal to cooperate with the bed bug treatment will not eliminate a landlord’s obligation to deal with the problem. The same logic applies to community associations; if one owner fails to exterminate or doesn’t exterminate successfully, treating all the other units and the common areas will be futile.
4. Consider adding a lease addendum or amending your condominium documents to proactively confirm the obligations of tenants and owners to report bed bugs and remediate infestations. Lease provisions could require, for example, pre-move in inspections of the tenant’s personal property, prohibit tenants from bringing furniture in from the street, and specify their obligation to permit access for inspections and treatments, etc.
5. Educate apartment tenants and condominium owners about the bed bug problem and the precautions they should take ¾inspecting luggage and clothes after trips, the risks of buying second-hand clothing and furniture ¾ and the need to report any sign of bed bugs immediately. The best strategy by far for dealing with bed bugs is to avoid infestations in the first place.

Security Concerns Are Understandable but a
Community Association’s Obligations Are Limited

By Patrick Brady

Community association boards and managers spend a lot of time worrying about legal liability, and with good reason. Multi-million-dollar awards to residents who sue their associations for failing to provide adequate security are hard to ignore. So are statistics such as these: The cost of settling a negligent security claim averages between $500,000 and $600,000, according to some industry estimates; the average jury award to plaintiffs who allege security breaches by property owners is more than $1 million; and the cost of just defending these claims is $100,000.

Those are scary numbers, to be sure. But they shouldn’t scare boards into doing more than they are required to do to provide security in their communities.

This is not to suggest that board members shouldn’t be concerned about security; they clearly should be both because they don’t want to see their neighbors robbed, injured, or worse and because they don’t want the association to be liable for the damages resulting from those injuries. But the key liability question for boards is: What must they do to reduce the risk that judges or juries will find them to have been negligent in addressing the community’s security needs? How extensive are the association’s security obligations? The answer, in most cases, is not nearly as extensive as many boards assume.

A plaintiff alleging that a community association’s security measures were inadequate must demonstrate that:

• The association had a duty to provide security; and
• It failed to take reasonable steps to fulfill those obligations.

Maintenance Obligations

Courts in different jurisdictions set different standards, but a community association’s security obligations are generally similar to those of a landlord, which is to say, they are primarily maintenance obligations, for example: making sure common area doors and locks are functioning properly and that common area windows are secure and replacing light bulbs in hallways, stairwells, garages, parking lots and laundry rooms. Neither community associations nor landlords are required to guarantee the security of residents and their guests. Unless the condominium’s governing documents include security on the list of association responsibilities, boards have no obligation to hire security guards, install cameras and motion detectors, or implement any other specific high- or low-tech security measures.

Where community associations will and do get into liability trouble is by promising protections they don’t provide, failing to maintain security-related equipment they have installed, or failing to continue security measures they have implemented. If an association hires security guards and then fires them because of budget constraints, a resident who is subsequently robbed or assaulted will almost certainly claim the board was negligent, and the odds are good that a judge or jury will agree. An association usually incurs greater liability risks by eliminating a security-related service than by never providing the service in the first place.

Managing Expectations

Managing a community association’s security liability risks has much to do with managing the expectations of owners. While the association has no specific security-related obligations, it can acquire those obligations and the liability related to them if board members tell owners the association is responsible for protecting them or allow them to believe that to be the case.

This is one reason, although not the only one, we advise boards that install cameras to describe their purpose as “surveillance,” not “security.” Security implies that the camera provides a measure of protection. In fact, cameras simply record crimes; they do little, if anything, to prevent them. And they may actually do more harm than good by creating a false sense of security that makes residents less vigilant and less cautious than they should be.

A California case dramatically illustrates that point. The owners of an office building in California installed several fake cameras in their garage, ostensibly to deter crime. A woman leaving late in the evening was assaulted on her way to her car and fought her assailant vigorously until they reached a point in front of one of the cameras. Unaware that the cameras were just for show and assuming help would be forthcoming, she stopped struggling and was brutally raped. A jury found the building owners negligent and awarded the victim more than $1 million in damages.

The key points for community associations: Don’t install fake cameras, ever. Make sure any cameras, motion detectors, or other security-related devices you do install are always working. And most important – explain carefully to owners that the cameras provide surveillance only; they can’t prevent crime and do not reduce the need for owners to remain vigilant, to take common sense precautions (locking their cars and not leaving valuables in them) to protect themselves, and to report any suspicious individuals or activity – not to the board, but to the police.

Call the Police

The latter point (call the police) is perhaps most important. Many condominium owners assume that when they move into a condominium community, they enter a world completely different from the one they inhabited as owners of detached single-family homes or apartment tenants. If single-family homeowners are robbed, assaulted, or fear for their safety, they call the police. If a crime wave envelops a neighborhood, single-family owners don’t (usually) hire private security guards; they demand more police protection. They don’t hire a private fire brigade to deal with fires – they expect the local fire department to take care of those emergencies.

The response of condominium owners should be the same. Condominium owners pay property taxes and are equally entitled to police and fire protection and other municipal services. They don’t relinquish those rights – and transfer those obligations – to their community association. A community association board is not a police force, it is not a fire department, and it is not required to provide those services.

Association boards cannot ignore security concerns, however. In addition to maintaining common areas, as noted earlier, boards must respond reasonably to security risks that are identified or reasonably foreseeable. If someone reports a missing bulb or broken light, the board should make sure it is repaired or replaced. If shrubs become overgrown (providing cover for assailants), boards should make sure they are trimmed. And they should inform owners of security risks in the condominium community or surrounding neighborhood.

In some cases – if criminal activity is escalating in the community or surrounding area — the board might request additional police patrols or ask the department to send an officer to talk to owners about safety precautions. Forming a volunteer “community watch” group is another option if owners are concerned and willing to undertake that effort. The board can also ask the police department to provide a basic risk assessment for the community, or hire a professional security firm to provide a more comprehensive risk evaluation. Reviewing area crime statistics (available from the police department) is another easy way for the board to identify any security concerns that should be communicated to owners. With the exception of a security firm’s risk assessment, none of these measures involve any out-of-pocket costs and all can go a long way toward demonstrating to a court (should this become necessary) that the board has taken reasonable steps, within the limits of its obligations and authority, to address security concerns.

Don’t Just Say No

While boards are not required to implement specific security measures, they should approve reasonable requests from owners to implement security measures of their own. A 20-year-old California case (Frances T. v. Village Green H.O. Association), still cited today, highlights the importance of this advice.

The plaintiff homeowner, concerned about a rash of burglaries and thefts in the area, asked the board repeatedly for permission to install additional lighting near her unit. The board had been discussing security concerns for several months, but hadn’t acted on them and didn’t respond to this owner’s request, so she installed the lighting on her own. That drew an immediate response from the board, which ordered the owner to remove the unauthorized lighting and rejected her request to leave it in place until the board could propose an alternative.

The owner complied, but because her supplemental lights were wired into the same circuit as the association’s existing lighting (which the owner felt was inadequate), disconnecting the owner’s lights left the area without any lighting at all. Shortly after that, the owner was raped in this darkened area, and a court found the association as an entity and the board members individually to have been negligent and liable for damages as a result.

A 1991 Massachusetts case (Hawkins et. al. v. Jamaicaway Place Condominium) produced a contrary result. In this case, the association’s board determined that the bars an owner wanted the association to install on the outside of her windows represented an architectural improvement requiring the approval of 75 percent of the owners – a benchmark the owner was unable to meet. When she was subsequently raped in her unit, the owner sued the association for negligence, but the state Supreme Judicial Court rejected her claim, ruling that the owner could have installed the bars on the inside of her unit without permission, albeit at her own expense.

While this decision affirms the consensus view – that an association’s security obligations are limited ¾ it does not eliminate the need for boards to take owners’ security concerns seriously and to approve reasonable security measures (stronger locks on their doors and additional lighting around their units, for example), as long as those measures don’t harm or create a nuisance for other owners.

If, as in the Jamaicaway Place case, owners refuse to approve a reasonable request, the board might want to seek a court opinion either upholding the owners’ decision or overruling it. The association would have to foot that legal bill, but the costs involved would be miniscule compared to the damages for which the community could be liable if it loses a negligent security claim.

LEGAL BRIEFS

KEY PEOPLE

Real estate attorneys take note: The most important employee in your firm may be a proofreader. Buyers who committed to purchase units in a newly constructed New York condominium development say a typographical error in the offering documents entitles them to rescind their offers and recoup their deposits. New York Attorney General Ander Cuomo agrees, and has ordered the developers ¾ Carlyle Realty Partners and Extell Development ¾ to refund a total of $16 million to the buyers. The developers, in turn, have sued Cuomo, insisting that the error was meaningless and did not justify the rescission of the buyers’ offers.

The error, as described by The Am Law Daily Blog on AmericanLawyer.com, occurred in the 732 offering document for the 41-unit Manhattan development, in a clause specifying that buyers could demand the return of their deposits if the first closing did not occur by September 2008. Right month, wrong year; it was supposed to be 2009. The first closing actually took place in February 2009 – before the intended deadline but after the erroneous one, and, notably, in the middle of a severe real estate downturn. Some buyers now want to withdraw because their financial circumstances have changed; others want to negotiate a lower price, reflecting market changes since they agreed to buy. Either way, the buyers contend, while the erroneous date may be insignificant to the developer, it is significant to them and enforceable; the contract, they argue, means what it says, not what the developers now claim they intended it to say. That question is now before a New York federal court, where the developers are arguing that Cuomo’s refund order should be overturned.

FAIR HOUSING GUIDANCE

Federal regulators have issued new guidelines designed to re-enforce protections for disabled tenants in the housing market. The new guidance, published jointly by the Department of Housing and Urban Development (HUD) and the Department of Justice (DOJ), emphasize that property owners and managers are required to make “special accommodations” for disabled tenants who rely on special equipment, such as motorized wheelchairs and motorized carts.

“Far too many housing providers and local officials still do not understand their obligation to provide reasonable accommodations, even though this legal requirement has been in effect for more than a decade,” Carolyn Peoples, HUD’s assistant secretary for fair housing and equal opportunity, said. “These guidelines explain in detail what providers are – and are not – required to do.”

The DOJ and HUD jointly enforce the Fair Housing Act, which requires housing providers to offer reasonable accommodations when necessary to give individuals with disabilities an equal opportunity to use and enjoy a dwelling. HUD and the DOJ issued the new guidance in response to recent, highly publicized incidents in which property owners or managers refused to make necessary concessions for disabled tenants. In one case, a tenant confined to a wheelchair filed a complaint against a California apartment manager who refused to modify a rule barring the use of scooters and carts inside the clubhouse, which housed tenant mailboxes, among other common facilities.

The new guidelines “will help housing providers better understand their obligations and help persons with disabilities better understand their rights regarding the ‘reasonable accommodations’ provision of the Fair Housing Act, DOJ and HUD said in their joint announcement. The guidelines, available online at www.hud.gov and www.usdoj.gov/crt/housing/caselist/htm, cover a range of topics in question and answer format, among them:

• What constitutes a reasonable accommodation;
• Who is required to comply with that requirement; and
• Circumstances under which housing providers can legitimately refuse a reasonable accommodation request.

“The reasonable accommodation provision of the Fair Housing Act is an important component of the Act’s broader goal of ending the unnecessary exclusion of persons with disabilities from the mainstream of American life,” R. Alexander Acosta, assistant attorney general for civil rights in the DOJ, stated. The new guidelines, he added, “will be an important aid in helping housing providers and persons with disabilities determine when such accommodations should be provided.

ANOTHER ARBITRATION BOOST

The US Supreme Court, which hasn’t missed many opportunities in recent years to strengthen mandatory arbitration provisions in consumer contracts, took advantage of another one recently, affirming that arbitrators, not the courts, should determine whether an arbitration requirement is “unconscionable.”

That decision (Rent-A-Center, West v. Jackson) came in a suit challenging the arbitration requirement in an employment contract. The plaintiff, Jackson, sued his employer for discrimination after he was fired from his job as an account manager. The employment agreement Jackson had signed gave the arbitrator the exclusive right to resolve any disputes about the arbitration provision.

The lower courts rejected Jackson’s discrimination claim. A divided (5-4) High Court found that he had failed to challenge the arbitration “delegation” provision in the lower courts, raising the issue for the first time in his Supreme Court appeal, when “it was too late and we will not consider it,” Justice Antonin Scalia wrote in the majority opinion.

Writing for the minority, Justice John Paul Stevens said the majority decision puts in an arbitrator’s hands “gateway” issues that the courts should decide. These issues raise fundamental questions, such as the enforceability and legality of an arbitration agreement, that “the parties are not likely to have thought they had agreed an arbitrator would decide,” Justice Stevens.

The Chamber of Commerce, which filed an amicus brief for Rent-A-Center, said the High Court decision will appropriately curb the increase in consumer suits challenging arbitration provisions of all kinds as “unconscionable.” Consumer advocates said the decision unfairly limits the ability of consumers to fight unreasonable arbitration requirements.

FAIR HOUSING (OFF) BEAT

Fair housing enforcement actions involving community associations often raise interesting issues, but sometimes they just raise eyebrows. Two recent examples:

The Virginia Attorney General has sued a condominium association for violating the state’s Fair Housing Act, claiming that the enforcement of an association rule barring ball-playing in common areas discriminates illegally against families with children. One of the families receiving violation notices and fines contacted the A.G., complaining that only families with children had been targeted for enforcement actions. Neither this family nor the A.G. has indicated whether the disparity existed because the board did not enforce the rule against families without children, or because those families did not play ball in violation of the rule.

In Florida, an apartment owner planning to offer units to convicted sex offenders has run afoul of the Fair Housing law by telling existing tenants with children that they would have to leave. The owner gave the families only a few weeks’ notice, telling them that the complex was being converted to an “adult” community, but not mentioning that the adults he was targeting were sex offenders, who are not allowed to live within 2,500 feet of a school bus stop. Because children in the complex wait for the bus at the entrance to the community, the owner apparently decided that sex offenders could not move in unless families with children moved out.

The Fair Housing Center of the Greater Palm Beaches has sued the owner in federal court, seeking unspecified compensation to reimburse the families for their moving expenses and damages for the emotional stress resulting from being forced to relocate on short notice around the Christmas holidays.

The owner had the right to convert his building to an adult community, Reed Colfax, the attorney representing the families, told the Palm Beach Post. But he “should have handled it differently,” at a minimum, giving the families more time and financial incentives to relocate. Colfax described the owner’s actions as the most “egregious” example of discrimination in his experience, noting, “I’ve never seen the wholesale eviction of an entire class of people.”

WIN FOR DEVELOPERS

A New York Appeals Court has given developers a welcome legal boost in their battles with buyers who no longer want to complete new condominium purchases to which they committed in better times. The plaintiff s in Romero v. Border East River Realty) argued that the somewhat obscure Interstate Land Sales Full Disclosure Act (ILSA) of 1968, designed to protect consumers who purchase land in other states without seeing it, should apply to commitments to purchase condominiums before they have been completed. The law requires developers of subdivisions containing 100 or more units to register their projects with the Department of Housing and Urban Development and to provide buyers with disclosure documents before they sign a purchase agreement. Because the developers in this case failed to meet those requirements, the plaintiffs argued that they could rescind their purchase agreements.

District Judge Allyne Ross (Eastern District of New York) disagreed. Because fewer than 100 uncompleted units had been sold when temporary occupancy certificates were issued, and because the remaining units were sold either after completion or under contracts requiring completion within two years, Judge Ross ruled, the development qualified for both the “Hundred Lot” and “Improved Lot” exemptions under the statute.

“While courts have found that ILSA is a remedial statute intended to protect consumers and requires ambiguities concerning exemptions to be construed narrowly, no ambiguity in the Hundred Lot Exemption exists given Congress’ omission of a timing requirement or requirement that the developer disclose at the time of purchase what other exemption it intends to utilize for any lots outside the Hundred Lot Exemption,” Judge Ross wrote.

A NATURAL CONCLUSION

As expected, the Massachusetts Supreme Judicial Court (SJC) has jettisoned the “natural accumulation” defense that has long insulated landlords and community associations from slip-and-fall liability.

Until now, Massachusetts courts have based assessments of liability on whether the accumulation of snow and ice resulted “naturally” from the falling and freezing of snow, or “unnaturally,” from something a property owner did in response. The SJC decided that Massachusetts should follow other jurisdictions, which have long since rejected that distinction.

“The reliance on a distinction between natural and unnatural accumulation has sown confusion and conflict in our case law,” the court ruled in Papadopoulos vs. Target Corporation. “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,” the SJC decision states.

The plaintiff in this case (Papadopoulos) was injured when he slipped on a mound of snow in the Target parking lot. A lower court granted summary judgment to the store, finding that the snow accumulation was “natural.” Target argued that the lower court relied correctly on the “natural accumulation” theory, which has proven to be both “sensible and equitable.” But the SJC agreed with Papadopoulos that the natural vs. unnatural distinction defies both logic and common sense.

“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,” the court said. “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 risk exists]…; 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….

“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,” the court concluded: “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.’”

Instead of wrestling with whether snow and ice accumulations are “natural,” the court said, fact finders in the future will focus on whether an owner’s snow removal efforts were “reasonable,” an assessment that will vary, the court said, depending on “the magnitude of the risk reasonably feared, and the burden and expense of snow and ice removal.”

Rejecting Target’s argument that this reasonable care standard will impose an unreasonable burden on property owners, the SJC concluded that owners in the past could not have relied all that much on the natural accumulation defense in implementing their snow removal plans, because the line between “natural” and “unnatural” was so difficult to draw and because “a natural accumulation could so easily become an unnatural accumulation.” Additionally, the court noted, “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. The reasonable care standard we impose is less demanding than these regulatory requirements.”