With the holidays now officially behind us, many of us would like to think that spring is not too far off, but truth be told, the relentless New England weather has yet to truly make its mark on winter 2019. A recent Massachusetts Superior Court case has reminded us about the potential liability that can come with the harsh effects of snow, ice and even just rain. In Holden v. Wal-Mart Stores East, LP, Lawyers Weekly No. 12-044-18, Plymouth Superior Court called into question the long standing “transitory water” doctrine that has often acted as a potential shield of liability for business owners. It determined that it was a question of fact whether a store can be held liable for a slip and fall arising from water that was brought into the premises by customers on a rainy day. If followed, this decision could have significant impact to business owners.
Transitory Water Doctrine
Since 1975, Massachusetts business owners and operators were protected from liability in some slip and fall cases by the “transitory water” doctrine that was established in Wexler v. Stanetsky Memorial Chapel of Brookline, Inc., 2 Mass. App. Ct. 750, 751 (1975). Under this doctrine, business owners were not responsible for injuries that arose from “transitory conditions” of the premises that were caused by “normal use in wet weather” or in other words, hazardous conditions brought inside as a result of the weather.
The 2010 Papadopoulos Decision
Thirty-five years after the Wexler decision, however, the Massachusetts Supreme Judicial Court made a move towards a more general rule of premises liability when it significantly changed how slip and fall cases involving snow and ice were reviewed in Papadopoulos v. Target Corp.,457 Mass. 368 (2010). Prior to this decision, a property owner was not liable for injuries caused by a natural accumulation of snow and ice. In Papadopoulos, the SJC abolished the distinction between natural and unnatural accumulation of snow/ice and held that regardless of the hazard, property owners owed a duty to maintain the property in a reasonably safe condition.
The Holden Decision Follows In Line With Papadopoulos
Following the reasoning in the Papadopoulos case, Plymouth Superior Court recently held that the transitory water doctrine was no longer good law. Since Papadopoulos abolished the exception that had previously protected property owners from liability due to untouched snow/ice, the court in Holden reasoned that the transitory water doctrine that also provided a similar exception was outdated.
On a rainy February 10, 2016, plaintiff entered Wal-Mart through two sets of sliding glass doors. As plaintiff entered the doors of the store, she slipped and fell on water that had been tracked in by customers. Plaintiff filed suit for her injuries against Wal-Mart alleging her fall was due to an accumulation of water on the tile floor.
Wal-Mart moved for summary judgment based on the transitory water doctrine that was established in Wexler. Essentially, Wal-Mart argued that it was not responsible for plaintiff’s injuries because the cause of the fall was due to water brought in from the weather outside. The court denied Wal-Mart’s summary judgment motion.
The court in Holden pointed to the SJC’s reasoning in Papadopoulos when it stated, “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 duty to lawful visitors to make reasonable efforts to protect lawful visitors against danger.” As such, the Holden decision indicates that regardless of whether the store condition was due to a weather-related event brought in from the outside, Wal-Mart still owes a duty to protect visitors from such conditions. Whether or not they made reasonable efforts to do so is a question for the jury.
Defendants Should Still Argue Wexler
Notwithstanding the Superior Court ruling in Holden, defendants should push back and argue that Wexler remains good law. Previously, in not just one but two unreported decisions, the Appeals Court has affirmed Wexler to be good law notwithstanding Papadopoulos. In Bolafka v. SPG Arsenal LP, 81 Mass. App. Ct. 1103 (Dec. 8, 2011), plaintiff argued that the defendant was responsible when she fell on rain water tracked in by customers entering the mall. Similarly, in Rando v. Cumberland Farms, Inc., 87 Mass. Ap. Ct. 1121 (May 15, 2015), plaintiff also argued that the defendant could be held liable for tracked-in rain water. In three judge panels, the Appeals Court determined that both cases were controlled by Wexler and not Papadopoulos. As such, these cases allow defendants to continue to argue that they are not liable for transitory conditions due to normal use in wet weather. Although summary judgment motions in negligence cases have historically been disfavored, it is anticipated that plaintiffs will now use the Holden decision to argue that cases involving injuries caused by weather-related conditions are too fact dependent for summary judgment. Defendants, however, will need to continue to push back and argue Wexler is still good law.
While the Holden decision is not precedential and can only be used by a plaintiff for its persuasive value, it should be a reminder that property owners have an obligation to take reasonable care of their property in light of the circumstances of the property and foreseeable hazards. In light of Papadopoulos and now Holden, property owners may want to reevaluate their wintertime weather procedures so that in the event a claim is made they will be able to argue that they took reasonable steps to protect visitors from weather-related conditions.