The Missouri Court of Appeals has ruled that although abandoned by Massachusetts in 2010, the “Massachusetts Rule” is still the general rule in Missouri. So what is the Massachusetts Rule? First applied in Missouri in 1954, the Massachusetts Rule is actually an exception to the general premises liability principles that apply to owners or occupiers of property. Until 1954, the rule had only applied to municipalities. Under the Massachusetts Rule, an owner or possessor of property has “no duty to remove snow or ice that accumulates naturally and is a condition general to the community.” Richey v. DP Props., LP, 252 S.W.3d 249, 251-52 (Mo. App. E.D. 2008). This is especially true when snow or ice is actively falling. That is not to say the Massachusetts Rule is absolute. As with any rule, there are exceptions and even exceptions to the exceptions. Missouri courts have recognized two exceptions to the Massachusetts Rule: 1) where the property owner or operator assumed a duty through its course of conduct or 2) assumed a duty by agreement.
The plaintiff in Colleen O’Donnell v. PNK (River City), LLC, et al. slipped and fell on a patch of ice on the sidewalk of the River City Casino during a winter ice storm. The plaintiff had arrived at the Casino before the ice storm began and fell as she was leaving. The ice on the sidewalk had not been shoveled, scraped, salted, or altered in any way by the Casino. Shortly before plaintiff fell, the Casino had been monitoring the freezing rain and had requested Total Lot Maintenance, who the Casino had a contract with for snow removal, to treat and remove the ice. The Casino even warned some customers of the ice, helped some customers to their vehicles and tried to protect others from falling before plaintiff’s fall.
The Casino filed a motion for summary judgment asserting they had no duty to remove the ice that had accumulated on its property under the Massachusetts Rule, which the trial court granted. In affirming the trial court’s ruling, the Missouri Court of Appeals revisited the Massachusetts Rule and the recognized exceptions to it. Plaintiff argued that both exceptions to the Massachusetts Rule applied to the Casino.
Plaintiff first argued that the Casino assumed a duty based on its conduct leading up to her fall, pointing to the fact that the Casino was aware of the accumulating ice and was monitoring the conditions, that they specifically warned other customers of the ice, even assisted some patrons to their vehicles, and also requested Total Lot Maintenance treat the ice. However, the Casino’s knowledge of the condition and warning and assisting its customers was not enough to trigger the exception. For the exception to apply in Missouri, the condition must be altered in some way by the landowner (or occupier), such as by shoveling, spreading salt or by some other means.
As a practical matter, although Missouri courts require willful action to alter the condition of the snow or ice to trigger the exception, Missouri courts have found that active removal of snow or ice in a different area of the premises from where an incident occurred is at least enough to preclude summary judgment and may be enough to trigger the exception. Otterman v. Harold’s Supermarkets, Inc., 65 S.W.3d 553, 555 (Mo. App. W.D. 2001). The take away is, if the snow or ice has changed in some way since it first accumulated naturally, the exception is likely triggered and the landowner (or occupier) must then exercise ordinary care to remove the snow or ice and make the area reasonably safe. Willis v. Springfield General Osteopathic Hosp., 804 S.W.2d 416, 419 (Mo. App. S.D. 1991).
The Court of Appeals also rejected plaintiff O’Donnell’s argument that the Casino assumed the duty to remove the ice by virtue of its agreement with Total Lot Maintenance because plaintiff did not put forth evidence of the contract or its terms. Of note, the Court of Appeals did confirm that the mere existence of a snow removal policy is not enough to trigger the exception.
The trial court granted a similar motion for summary judgment filed by Total Lot Maintenance. However, the Court of Appeals reversed, noting an issue of fact existed as to whether the assumed by agreement exception was triggered. The agreement required Total Lot Maintenance to clear snow and ice at the Casino after a certain amount of accumulation and the Court of Appeals found that this, coupled with the fact that the Casino had contacted them twice to remove the ice called into question whether their duty had been triggered.
Importantly, the Missouri Court of Appeals rejected plaintiff’s argument that the Massachusetts Rule should be abrogated entirely or, at a minimum, should not apply to hotel owners and operators. In Missouri, while hotel owners and operators may owe a heightened duty of care to its guests to warn of dangerous conditions in certain circumstances, this does not allow for circumvention of the Massachusetts Rule. The Rule is applied broadly and encompasses hotel owners and operators. Richey, 252 S.W.3d at 251.
The Court of Appeals did acknowledge that the Massachusetts Rule in certain circumstances could incentivize owners and occupiers of property to not address dangerous conditions of snow or ice. However, they declined to void the rule, stating that is for the Missouri Supreme Court to decide.