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By Chris A. Milne (Massachusetts Lawyers weekly, April 1, 1996) A property owner is liable for injuries resulting from a slip and fall on natural accumlations of ice and snow on a stairway because the State Sanitary Code imposes a duty on the landlord to keep stairways free of snow and ice. The State Sanitary Code requires that exterior stairways "shall be kept free a snow and ice." 105 CMR 410.452. Se also 780 CMR 805.2. An owner may not rent a dwelling unit to a tenant that is not maintained in compliance with the State Sanitary Code. 105 CM 410.010 (A). The purpose 'of the State Sanitary Code is to protect the health, safety and well-being of the occupants of housing' and ' facilitate the use of legal remedies available to occupants of substandard housing.' 105 CMR 410.001. In the landmark case of Boston Housing Authority v. Hemingway, 363 Mass. 184, 293 N.E.2d 831 (1973) the Supreme Judicial Court held a landlord warrants "that at the inception of the rental that there are no latent [or patent] defects in facilities vital to the use of the premises for residential purposes and that these essential facilities will remain during the entire term in a condition which makes the property livable." The implied warranty of habitability includes, at a minimum, the State Sanitary and Building codes. Altschuler v. Boston Rent Bd., 12 Mass. App. Ct, 452, 425 N.E.2d 781, 784 (1981) ("Recent opinions of the Supreme Judicial Court have made clear that the (implied) warranty includes, as a minimum, not only the requirements of the Sanitary Code but also those of the Building Code"). In Crowell v. McCaffrey, 377 Mass. 443, 386 N.E.2d 1256 (1979), the Supreme Judicial Court held that 'extension of the (implied) warranty to the ordinary tenancy at will, in accordance with the Hemingway decision, logically carries with it liability for personal injuries caused by a breach,' Crowell, 38 N.E.2d at 1261. See also McKenna v. Begin, 5 Mass. App. 304, 312, 362 N.E.2 548, 553 (1977) (The condition of the stairs was a violation in a common area which detracted from (plaintiffs) use or enjoyment of [a] portion of the premises leased to him should) result in [an] award of damages against the landlord.'). A tenant has a right to expect that the landlord will comply with the law. Berman & Sons v. Jefferson, 37 Mass. 196,396 N.E.2d N.E.2d 981, 984 a n. 6.(1979). The State Sanitary Code was enacted in 1960 and Hemingway and its progeny were decided in 1973 and after; all long after the natural accumulation doctrine was first announced. See Spaulding v. Inhabitants of Town of Beverly, 167 Mass., 45 N.E. 1 (1896); Morse v. City of Boston, 109 Mass. 446 (1872); Luther v. City of Worcester, 97 Mass, 268 (1867). Presumably, the drafters of the Sanitary Code and the Hemingway court were aware of these cases, particularly of this rule. With this knowledge, the drafters of the Sanitary Code chose to include a provision that required an owner to maintain stairways free of snow and ice. Nowhere in §410.452 of the State Sanitary Code does it say that an owner must keep the stairs free of only unnatural accumulations of snow and ice. Nor did the Hemingway, Altschuler, Crowell courts fashion an exception to the implied warranty for "natural accumulations' of ice and snow. Imagine the ludicracy if the Berman & Sons court had held 'a tenant has a right to expect that the landlord will comply with the law except for exterior stairways where the landlord may allow the fallen snow or ice to accumulate, for days, weeks, even months, causing injury even death to tenants or visitors with no liability, so long as it stays in its natural condition.' Don't see Berman & Sons at p. 984 n. 6. (1979). Similarly a finding that an exterior stairway is not maintained free of ice or snow in violation of the Sanitary Code is evidence of negligence and may, based solely on the violation of the State Sanitary Code warrant a finding of liability to tenants or visitors. Adamian v. Three Sons, Inc., 353 Mass. 498,233 N.E.2d 18 (1968); Gamere v. 236 Commonwealth Avenue Condominium Association, et al., 19 Mass. App. Ct. 359, 474 N.E.2d 1135 (1985); Memmolo's Case, 17 Mass. App, Ct. 407, 412, 458 N.E.2d 1204 (1984). The State Building Code also requires exterior stairs to be maintained free of ice and snow. Thus, similarly, snow or ice natural or unnatural will be evidence of negligence in this situation. 780 CMR 104.2; 780 CMR 805.2. Further, in the standard public housing lease, the landlord contracts to 'maintain the dwelling unit, equipment and appliances, and common areas and facilities, to provide decent safe and sanitary housing in accordance with owner's obligations under .. Chapter 11 of the Massachusetts State Sanitary Code.' By contracting to comply with the State Sanitary Code an owner agrees to keep the stairs free of snow and ice. When one assumes a duty, one is liable for negligent performance of that duty. Mullins v. Pine Manor College, 449 N.E.2d 331 (1983); Black v. New York, N.H., & H.R.R., 193 Mass. 448, 79 N.E, 797. Often snow and ice defendants argue that Massachusetts law is well settled that property owners are not liable for injuries resulting form natural accumulations of snow and ice - plaintiff must show that the ice involved was an unnatural accumulation. While this assertion applies in a general way to a property owner, this rule does not apply to stairways. See Diprizio v. F W. Woolworth Co., 196 N.E. 910 (1935) (Defendant negligent in not discovering and removing the snow on a stairway). Furthermore, the cases involving an application of the natural accumulation rule all involve areas other than stairways. See e.g. Aylward v. McCloskey, 412 Mass, 77, 587 N.E.2d 228 (1992)(slip and fall on driveway); Sullivan v. Town of Brookline, 416 Mass. 825, 626 N.E.2d 870 (1994) (slip and fall on ramp); Gamere v. 236 Commonwealth Ave. Condo Assn., 19 Mass. App. Ct. 1135, 474 N.E.2d 1135 (1985); Berman v. Massachusetts Building Trust, 123 N.E.2d 388 (1954) (slip and fall on side- walk abutting building); Collins v. Collins, 16 N.E.2d 665 @1938) (slip and fall on driveway); Luther, supra (slip and fall on sidewalk). In conclusion, there is liability for natural accumulations on exterior stairways. A tenant exiting his or her building has a valid cause of action in negligence or for breach of the implied warranty of habitability. Language in the lease may create further liability in contract and negligence. A business may also be liable for natural accumulations of ice or snow on exterior stairs for violating the State Building Code. Published with permission of Lawyers Weekly |