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Notice Requirement for Recovery for Personal Injuries from Falling on Snow or Ice

With all the snow and ice we've gotten this winter, it's more clear than ever that ice and snow create a dangerous environment. For those of us who have grown up in Massachusetts, we are familiar with extreme winter. Yes, we had plenty of winters where there just isn't all that much snow or ice. But, it seems these days that we are receiving more and more snow. More snow generally means more slips and falls on ice.

If you have grown up here in Massachusetts, or even if you've lived here just this one winter, you've learned that traversing the dangerous, icy, snowy, and slippery conditions is just part of living here in the winter. But did you know that it is aproperty owner's responsibility to remove the snow and make the property safe? This is the general rule, though there are exceptions. For instance, if the property is a commercial property and the tenant or tenants have contracted through their leases the responsibility of removing all snow and ice themselves, then that liability shifts to the tenants. But either way, there is a responsibility, a legal responsibility, for the injured party to provide certain particular notice to the property owner after a slip and fall on ice.

Let's take a close look at the statute that requires such notice. We are looking at Massachusetts Gen. laws, chapter 84, sections 18 through 21. These sections provide a time frame for the notice, how the notice must be given, and what information must be included. In almost every type of legal action there is a limitation on the amount of time that may pass between the event in which liability arises and when the action must be brought or filed. It is only in very narrow circumstances, such as with criminal murder cases, that we as a society believe that there should be no limitation on the amount of time that have passed for us to still be able to hold the perpetrator accountable.

When we talk about civil actions, we have a public policy interest in finality--that is, we have an interest in resolving things in a timely manner and putting them to rest. We don't want issues just hanging out there for decades on end, unresolved. We also have evidentiary issues associated with waiting long period of time before bringing an action. Witnesses may no longer remember what happened. They may be unavailable, sick, or dead. Important documents may have been destroyed. All of these points are reflected in our limitations laws. Generally speaking, people who have incurred a personal injury as the result of someone else's negligence have to bring their claim within three years. That three-year statute of limitations still applies here in slip and fall cases, but we also have a 30-day notice requirement.

When the evidence involves snow or ice, we can all agree it is going to disappear very quickly. Also, when we have a defect in a property that has resulted in someone's injury, we have a public policy interest in resolving the defects so that nobody else gets hurt. These two interests are reflected in the 30-day notice requirement.

If you are injured on snow or ice, even if it's on someone's private property, you must give notice within 30 days to the landlord or property owner. Although not required under the statute, I would highly recommend you give written notice to both the landlord or property owner and the tenant in possession. That would resolve any issue as to giving proper notice to the party who is actually in control of the property.

What must go into the notice is specific but logical. The person with the injury must, in writing, provide his or her name and residential address. The individual must provide the date and the time of the injury, as well as the location where it occurred. So, as you can see, the law requires that the basics of the individual and the injury and the defect must be provided to the property owner.

What happens if you don't give notice? It is surely foreseeable that an individual with an injury from a slip and fall on snow or ice would have no clue that this notice requirement was in existence. The individual could logically not inform the property owner and instead focus on the individual's medical issues stemming from his or her injury. The individual may be thinking that a recovery will likely occur in the next few days or weeks and have no interest in any sort of personal injury lawsuit. It is also foreseeable that a certain percentage of those individuals will ultimately have significant injuries that do not resolve within the first 30 days. It may only be after the passing of the first 30 days that an individual learns his or her injuries will be more long-term. At that point in time, the individual would start to worry about long-term medical bills, loss of earning ability, pain-and-suffering, and inconvenience. It would be at that point that the individual would start to realize that they are probably entitled to some level of compensation as a result of the injury arising out of the defect in the property.

So the question is: now what? That individual, who has now learned that he or she has a long-term injury, has a legitimate need to bring a personal injury action and recover the defect in the property, but has now missed the 30-day notice requirement. All may not be lost, as there is a key exception to the notice requirement. That is, the owner of the property must prove prejudice if he or she or it is going to use the lack of notice as a defense.

Here's an example. Let's say there were no witnesses to the fall in the icy condition except for the individual with the injury and his spouse. Each of these individuals will testify that there was a treacherously icy condition on a set of stairs owned and controlled by the defendant. However, neither of these individuals nor any of the first responders who showed up on scene took a good look at the icy condition, took video of the icy condition, or took any pictures of the icy condition. The first responders didn't really even look at the stairs, and so the star witnesses will testify as to the condition of the person with the injury and his spouse. Now, let's say it is six months later, the middle of the summer, and the individual with the personal injury is now suing the property owner for the defective condition of the property, meaning the snow and ice. The property owner has absolutely no way to gather independent evidence as to the condition of the property, nor any ability to view the defective condition in person. The owner has no ability to analyze photographs of the defective condition, and no ability to review video of the defective condition. The defendant is prejudiced. The defendant property owner should assert prejudice and dismiss this action based on lack of notice.

Hopefully you've learned the basics of what's required of you if you fall on snow and ice in Massachusetts. Whether it is in Boston walking into the stadium, in the suburbs walking out of a restaurant, or even walking up your neighbor's front steps to deliver a piece of erroneously delivered mail, the notice requirement is important and should be complied with immediately. Because of this, time is of the essence with these types of cases. If you've been the victim of a slip and fall on snow and ice be sure to consult with a Massachusetts personal injury lawyer at your earliest opportunity.

Categories: Slip & Fall, injury, snow, ice

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