DerryNews.com, Derry, New Hampshire

February 14, 2013

A store may not be liable in a 'slip-and-fall' case

About the Law
By Andrew Myers

---- — I fell outside of a store on snow and ice and broke my arm. A manager took a report, but now they’re not getting back to me.

Since I fell on the store’s property, don’t they have an obligation to pay for my injuries?

New Hampshire law states that the fact of an accident and injuries does not necessarily mean that anyone is legally responsible. Liability is not imposed automatically due to an accident without showing fault by the property owner.

Negligence must be established by showing the landowner either did something a reasonably careful person would not have done, or failed to take action a reasonably careful person would have taken.

For example, at 10 o’clock at night on a Sunday evening, you can’t expect a landlord to be out there saying now, its 32 degrees - I’m going to throw out some salt and sand. Legal duty doesn’t happen that way.

Massachusetts courts used to take an entirely different approach. There was no liability for a natural accumulation of snow and ice, what some call an “act of God.”

Instead, courts held property owners liable only when an artificial accumulation caused injury. Such artificial conditions included rooftop snow melting, dripping down a badly placed down spout creating pooled black ice in a parking lot. Other classic artificial conditions were tire ruts through slush which later froze into tripping hazards.

The Massachusetts Supreme Judicial Court overturned that law in 2010. Property owners are now held to the familiar duty of reasonable care.

Universal factors considered in determining “reasonable care” include the amount of foot traffic to be anticipated on the property, the magnitude of potential risks, and the burden and expense of snow and ice removal. So, what constitutes reasonable snow removal varies for an owner of a single-family home, an apartment complex, a store and a nursing home.

Is a verbal contract legally binding? I agreed to do work for my landlord, including concrete patching, simple plumbing, snow and ice treatment, and other things.

He said he would pay me $25 per hour, plus materials. I’ve spent hundreds of dollars on cement, materials and rock salt. Now the landlord is blowing me off saying it was all a favor.

Obviously a written contract is best every time. However here, you may be able to enforce a contract in court if you have witnesses.

Another strong argument is detrimental reliance, which helps you if, in reliance on being paid you spent money for materials and worked for hours.

A final argument is what the law calls quantum meruit. This legal theory acknowledges that there was no contract, but that as a matter of equity, you are entitled to recover the fair value of your services. Part of the equitable remedy is your out-of-pocket costs.

Andrew Myers of Derry has law offices in Derry and North Andover. He is a member of the American Association for Justice and the New Hampshire Trial Lawyers Association. Send questions to andrew@attorney-myers.com.