McDonald v. Zaniboni

14 Mass. L. Rptr. 136
CourtMassachusetts Superior Court
DecidedJanuary 10, 2002
StatusPublished
Cited by1 cases

This text of 14 Mass. L. Rptr. 136 (McDonald v. Zaniboni) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McDonald v. Zaniboni, 14 Mass. L. Rptr. 136 (Mass. Ct. App. 2002).

Opinion

Toomey, J.

INTRODUCTION

The plaintiff, Kathleen McDonald (“McDonald”), brings this action alleging that the defendants, Richard Zaniboni and Sharon Zaniboni (collectively, “the Zanibonis”), individually and as trustees of R&S Realty Trust, negligently failed to remove an unnatural accumulation of snow and ice in the parking lot of their property and thereby created an unsafe condition which resulted in plaintiffs fall and injury. This matter is currently before the court on the Zanibonis’ motion for summary judgment pursuant to Mass.R.Civ.P. 56(c). For the reasons stated below, the Zanibonis’ motion for summary judgment is ALLOWED.

BACKGROUND

On or about February 16, 2000, at 7:50 a.m., McDonald left her apartment and walked through the parking lot to her car, located at the front side of the lot. She cleared snow off her windshield, started her car, activated her defroster and put bags in her car. Intending to discard some trash, McDonald began walking toward a dumpster located approximately fifty feet from her car at the center rear of the parking lot. Approximately halfway to the dumpster, she slipped and fell on an icy patch hidden underneath a light dusting of snow, less than a quarter of an inch in depth. The snowfall had commenced the previous evening and continued through the morning.

The Zanibonis had hired Trillium Landscape to plow, sand and salt their parking lot. Trillium’s practice was to clear the center area of the parking lot and any other areá as to which there was sufficient space to enable Trillium to clear to the sides of the lot. Cars customarily parked on both sides of the parking lot; snow and ice would naturally accumulate between and around those “side” parking spaces when Trillium was unable to plow the areas neighboring the parked cars. It is unlikely that Trillium plowed, sanded or salted on the day McDonald fell because, prior to February 16, 2000, there had been no precipitation for approximately a week.

DISCUSSION

Summary judgment will be granted where there are no material facts in dispute and the moving party is entitled to judgment as a matter of law. Cassesso v. Comm’r of Correction, 390 Mass. 419, 422 (1983); Community National Bank v. Dawes, 369 Mass. 550, 553 (1976); Mass.R.Civ.P. 56(c). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue “and [further,] that the moving party is entitled to judgment as a matter of law.” Pederson v. Time, Inc., 404 Mass. 14, 16-17 (1989). In assessing a Rule 56 motion, “[t]he evidence of the non-movant [here McDonald] is to be believed and all justifiable inferences are to be drawn in his favor .’’Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (quoted with approval in G.S. Enterprises, Inc. v. Falmouth Marine, Inc., 410 Mass. 262, 263 (1991)). Of course, “the nonmoving party may not simply rest on pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for tried.” Correllas v. Viveiros, 410 Mass. 314, 317 (1991).

[137]*137At bar, McDonald claims that she fell because of an unnatural accumulation of snow and ice on the defendants’ property. The duty owed by a landowner to someone lawfully on the owner’s premises is one of reasonable care under the circumstances. See Mounsey v. Ellard, 363 Mass. 393, 707-08 (1973). The duty of reasonable care, however, “does not make landowners and occupiers insurers of their property nor does it impose unreasonable maintenance burdens. ”Aylward v. McCloskey, 412 Mass. 77, 80 (1992), citing Mounsey, 363 Mass. at 709. And, of particular pertinence to the case at bar, we are guided by the principle that “(a]s a general rule, there is no duty by a landowner to remove a natural accumulation of snow or ice.” Anderson v. Fox Hill Village Homeowner’s Corp., 424 Mass. 365, 367(1997). See Sullivan v. Town of Brookline, 416 Mass. 825, 827 (1994).

It is well settled, at least in the environs in which this court’s litigants do annual battle with the elements, that not every human act or failure to act transforms natural accumulation of ice and snow into an unnatural accumulation to which liability may attach. We are instructed that shoveling snow into a pile is not deemed to constitute an artificial condition: nor will refrozen run-off from such a pile create liability. Cooper v. Braver, Healey & Co., Inc., 320 Mass. 138, 139-40 (1946). See Wetmore v. Whitehead, 1998 Mass.App.Div. 211 (1998). Similarly, the mere act of shoveling a path, on which remaining snow and ice re-freezes, is not usually sufficient to occasion a finding of liability for an “unnatural” accumulation. Sullivan, 416 Mass. at 828.

In Massachusetts, “landowners are liable only for injuries caused by defects existing on their property and . . . 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.” Aylward, 412 Mass. at 79. Liability may arise, “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.” Sullivan, 416 Mass. at 827. The landowner’s act or failure to act may change the condition of the snow or ice, transforming it into an unnatural accumulation in two situations: (1) where a structure or condition on defendants’ premises caused the accumulation of snow and ice, which freezes and creates a hazardous walking surface on defendants’ premises, or (2) where the property owner allows third persons to use the property in such a way as to create a dangerous condition. The determinative element of liability in these circumstances is the alleged tortfeasor’s generation of the hazard.

At bar, however, McDonald has produced no evidence suggestive of a genuine issue of material fact that the Zanibonis originated the peril. Although McDonald alleges that she made eight complaints in six years about the conditions of the parking lot and walk areas, she has failed to demonstrate that, at trial, she will produce sufficient evidence to permit a trier of fact to conclude that the Zanibonis failed to exercise, on February 16, 2000, reasonable care in the maintenance of their property.

First, McDonald does not argue that a structure or treatment on defendants’ premises caused the accumulation of snow and ice which then froze and created an hazardous walking surface. See Baldassari v. Produce Terminal Realty Corp., 361 Mass. 738, 744 (1972) (defendant liable for leaky roof that allowed melting snow to drip onto terminal platform, where it froze, creating hazardous walking surface). Rather, McDonald claims that liability on the part of the defendants was created when a plow, after clearing snow from the center of defendants’ lot, failed to remove snow and ice accumulations from between vehicles, which accumulations later melted, created an icy surface on the property and caused her to slip and fall.

Thát evidence is insufficient to defeat summary judgment because McDonald fails to show that defendants’ alleged negligence in plowing likely created the slippery condition in the parking lot.

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14 Mass. L. Rptr. 136, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcdonald-v-zaniboni-masssuperct-2002.