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12/18/07: Who Shovels Your Snow?

HOUSING COUNSEL

By Benny L. Kass

"Let it snow, let it snow, let it snow".

Perhaps the children and the skiers appreciate major snow storms, but most homeowners dread the fact that they may have to go out in the cold and shovel their driveways and their sidewalks.

But do they have to do this, and what liability do they have should someone slip on the ice in front of their house?

Starr Murphy found out the hard way. She was injured when she fell on the icy sidewalk in front of the apartment building in which she was a tenant. She sued her landlord. The District of Columbia Court of Appeals - the highest court in the city - affirmed a lower court decision which rejected her claim for damages.

According to the Court opinion, "(n)o duty existed at common law to keep the sidewalk in front of one’s premises free from ice and snow". The Court pointed out that although the District has a law which requires property owners to keep public sidewalks in front of their premises free of snow (D.C. Code §9-601), Ms. Murphy did not have legal standing to sue under that law. The Murphy Court concluded that "(o)nly the District of Columbia government has the authority to enforce it".

The Court did, however, acknowledge that a property owner could be held responsible for someone’s injury if the actions of that owner has increased the hazard created by snow or ice. (Murphy v Schwankhaus, decided May 10, 2007).

Laws generally fall into two categories: common law and statutory law. If a legislative body does not enact laws on certain subjects, then lawyers and judges fall back on the common law. This is law whose origin goes back to our British heritage. A judge decides a case, and another judge -- relying on the precedent established earlier - makes the same decision in another case involving similar facts.

Over the years, case law creates what we now call "common law"

Under the common law in the District of Columbia, as summarized by the Murphy case, homeowners have no duty to keep the sidewalks in front of their house free from ice and snow. In Maryland, on the other hand, the Courts have decided that under their common law, a property owner has the duty to keep walkways shoveled, but only if the owner knew or should have known of the hazardous condition. This is called "the doctrine of constructive notice". According to one Maryland Court of Appeals decision:

It is not necessary that there be proof that the (owner) had actual knowledge of the conditions creating the peril; it is enough if it appears that it could have discovered them by the exercise of ordinary care.

Virginia common law is similar to that of the District. The Supreme Court of Virginia has ruled that homeowners do not have a duty "to remove natural accumulations of snow and ice within a reasonable time after the end of a storm". According to that High Court, since the danger is both open and obvious, a private homeowner should not be held liable should someone be injured.

Commercial enterprises and landlords in Virginia, however, do have a common law duty to shovel the snow and remove the ice in front of their properties.

Out of curiosity, I went to the Fairfax County, Virginia web site and under "snow removal" found the following Question and Answer:

Q: Who is responsible for clearing snow from the sidewalks in my neighborhood?
A: Neither the Virginia Department of Transportation nor Fairfax County clears snow and ice from public walkways... While not legally obligated, citizens and businesses are asked to help keep sidewalks safe.

But State (and local) legislators were not comfortable relying solely on the common law and accordingly, laws have been put on the books dealing with snow removal. As discussed above, the District requires homeowners to "remove and clear away" the snow and sleet from their front sidewalk "within the first 8 hours of daylight after the ceasing to fall of any snow or sleet".

In both Maryland and Virginia, the state legislatures opted to leave this issue to the discretion of the local governments. In furtherance of this authority, the Montgomery County Council enacted an ordinance requiring that the person who "owns, leases, or manages... any walkway in the public right-of-way, to provide a pathway wide enough for safe pedestrian and wheelchair use."

In the Commonwealth of Virginia, counties and cities have also been given the authority to enact local laws requiring snow removal, but only if it is "reasonable" and provides "reasonable time frames for compliance and reasonable exceptions for handicapped and elderly persons". However, the Virginia Code limits the penalties for failing to adhere to such local ordinances to $100.00.

The Arlington County website states:

As Arlington continues to urbanize, pedestrians increasingly need and expect sidewalks to be cleared in residential and business neighborhoods. The County does not clear sidewalks and applauds citizens .. for clearing sidewalks to help their neighbors ... weather the storm.

If you slip on ice in Maryland and are injured, you may have a case against the property owner. If you are injured in the District or in Virginia, you may be successful in a court of law only if you can prove that the property owner knew (or should have known) that the snow storm created a dangerous condition and that the owner was negligent.

The bottom line, wherever you live and regardless of the laws in your jurisdiction, follow the advice from Fairfax County: property owners should, "as soon as feasible, clear snow off the sidewalks in front of their property so that all pedestrians, especially school children, those with disabilities, and the elderly, may walk securely."

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