by Mark Taylor Rumson, Esq.
An old adage that hardy New Englanders have grown up hearing holds that if you do not like the weather conditions around here, “just wait a day or two and they will change.” A recently issued Massachusetts Superior Court decision has called into question a legal doctrine that has long shielded premises owners from liability in wet weather-associated slip-and-fall cases. Slip-and-fall cases are more prevalent than ever and if, as some in the legal community believe, this recent decision signals a coming end to the “transitory water” doctrine, it could generate future litigation-related headaches and expenses for Massachusetts business owners and operators.
Under the “transitory water” doctrine, established by the Appeals Court in 1975, business owners and operators are not responsible for injuries attributable to “transitory conditions” of premises caused by “normal use in wet weather.”
In a recent Superior Court case, however, a customer sought to hold a large retail store chain accountable for injuries she allegedly suffered when she slipped and fell on water that had collected on the tiled floor of the entryway to one of its stores. The water apparently had been tracked in by other customers on a rainy day.
The retail store chain, as many business owners and operators have done in the past in similar cases, argued that the transitory water doctrine barred the customer’s claim and requested that the judge dismiss the case early in the lawsuit. But the Superior Court judge disagreed with the retailer, refused to end the lawsuit and ruled that the transitory water doctrine could no longer be considered “good law.”
The Superior Court judge based his ruling, in part, on a decision made by the highest court in Massachusetts, the Supreme Judicial Court (or “SJC”), in 2010, which eliminated another rule that previously protected property owners from injuries caused by weather-related conditions on their premises, the so called “natural accumulation” rule. That rule protected property owners from accountability for injuries caused by untouched ice and snow on their premises. However, in 2010, the SJC put an end to that legal doctrine ruling that if a property owner knows or reasonably should know of a dangerous condition on its property it does not matter if the condition arose from an accumulation of ice or snow, rusting on a rail, or a discarded banana peel. The SJC ruled the duty a business or property owner owes to lawful visitors is to make reasonable efforts to protect those visitors against such dangers. The “reasonable efforts” standard had not been expanded by lower courts to cases involving transitory conditions caused by wet weather (i.e. rain), until now.
All this does not necessarily mean the death of the transitory water doctrine just yet. The retailer has not appealed the Superior Court’s decision and the case is scheduled for trial this summer. Depending on the trial outcome, the retailer could appeal the case to a higher court for review and clarification of the duty business owners owe to visitors in these situations. While the Superior Court’s ruling abolishing the transitory water doctrine may not yet represent a final change in the legal duties business operators owe visitors, what does appear clear is that older rules, such as the transitory water doctrine, are being slowly abandoned by Massachusetts courts in favor of a more general “reasonable efforts” analysis. Using this analysis courts will examine the reasonableness of measures taken by businesses to make their property safe for visitors and protect them from dangerous conditions, including weather-related conditions. This change could have far-reaching effects, both legal and financial, on business owners and operators.
Of course, the first step every business owner or operator should take is to review their safety, general maintenance, employee training, inspection, monitoring and supervisory practices, rules and procedures and ensure they are detailed, current and comprehensive. Implementation of such policies and practices will help prevent potential slip-and-fall incidents and help keep the premises in a reasonably safe condition. The utilization of mats and rugs during times of inclement weather, and particularly in areas of egress, may have preventative value as well and may also be of evidentiary value in the event of litigation.