Out in the Cold: Who is Responsible for Dangerous Road Conditions?

By Briggs & Wholey LLC | Feb 12, 2016

Although this winter has been surprisingly mild, we still face the prospect of several major snow and ice storms before spring.  As Mainers, most of us have become accustomed to dealing with harsh winter weather conditions, in part because we rely on our state and local governments to take appropriate measures to ensure that it is safe for us to travel if we need to.  We know that we need to be careful driving or getting around when it is snowy or icy, and we expect others to do the same.  But are all of these basic assumptions correct?

When accidents happen, a common reaction tends to be to want to blame the town or city for failing to keep the roads safe.  After all, we think of that as one of their primary purposes.  This responsibility, however, is almost entirely self-imposed.  Although towns and cities are “responsible” for keeping roads clear and dry during winter weather, there are no repercussions for a municipality’s failure to take adequate measures except in extremely limited circumstances.  This is because the Maine Legislature had decided that governmental entities are immune from being held liable for ordinary negligence, with just a few exceptions.  See 14 M.R.S. §§ 8103, 8104-A.  Not only is there a statute on the books granting immunity, however; the Maine Supreme Judicial Court has gone even further, suggesting that Mainers should be used to driving on bad roads, and stating that it would be unfair to hold cities and towns responsible for accidents caused by unplowed or untreated roads.

It’s not just cities and towns that can avoid liability for poor road conditions.  Even the contractors they hire specifically for the purpose of keeping Maine roads safe cannot legally be held responsible for serious injuries, or even deaths, caused by dangerous conditions.  In a case involving a woman who was killed when she was involved in a crash in Glenburn on Pushaw Road, which allegedly had been left covered with slush following a major snowstorm, the Maine Supreme Judicial Court concluded that the woman’s family members could not even bring a lawsuit against the plowing contractor for failure to meet the standard of care of a reasonable snow plow contractor.  The Court held that, even though the snow plow contractor had undertaken to plow the Town’s roads, he had not undertaken a duty to protect members of the road-using public from ice and snow.  Alexander v. Mitchell, 2007 ME 108, ¶ 13, 930 A.2d 1016.  Relying on Maine’s history of limiting liability related to winter weather hazards, the Court held that a snow plow contractor’s only duty is to fulfill the terms of his contract with the town or city in carrying out the contract, effectively leaving members of the public with no remedy whatsoever for dangerous conditions on public roads.  See id. ¶¶ 25, 28, 31.

When it comes to privately-owned businesses, however, the rules are different.  Unlike towns and cities, private entities can be sued for failing to keep their walking and driving surfaces safe.  Businesses, including banks, employers, and schools, can be held responsible for injuries caused by dangerously slippery conditions.  For example, in a 1972 case, the Maine Supreme Court held that Husson College could be held legally responsible for injuries sustained by a college student who slipped on ice as he was walking back to his dorm room from dinner.  Isaacson v. Husson College, 297 A.2d 98, 100-01 (Me. 1972).  Under these circumstances, the Court’s approach was somewhat different, noting, “[t]he mere fact that snow and ice conditions are prevalent during the course of our severe Maine winters is not in and of itself sufficient rationale for the insulation of the possessor of land from liability to his business invitees.”  Id. at 103.  The Court went on to conclude that a college student is justified in his expectation that he would not be exposed to an unreasonable risk of harm while walking across campus.  In other words, “he had the right to assume that the premises were reasonably safe for his use.”  Id.

Similarly, the Court held, in a different case, that a business that anticipates that many people may come and go on its property during inclement weather has a duty to keep the premises reasonably safe – even while the storm is in progress.  Budzko v. One City Center Associates Limited Partnership, 2001 ME 37, ¶16, 767 A.2d 310.  The Court emphatically rejected the argument, made by the owner of a building in downtown Portland, that it was within its rights to wait until the storm was over before trying to clean up the slippery ice and snow left on the stairs to the building.  Id. ¶ 13.  The Court made the commonsense observation that the business owners, being aware that the building remained open and that several hundred people would likely enter or leave the building over the course of the day, had a duty to reasonably respond to the foreseeable danger that someone would slip on the ice and be injured.  Id. ¶ 16.  Notably, the Court rejected the suggestion that it adopt the “storm-in-progress” rule followed by several other states, which relieves business owners of any duty to begin cleaning up their property while a snow or ice storm is still occurring.  As the Law Court explained, this rule “appears inconsistent with the duty of reasonable care owed by a business owner reasonably anticipating a significant number of invitees during a Maine winter storm.”  Id. ¶ 13 n.3.

In effect, Maine law places a greater responsibility on private property owners who invite others onto the property for commercial or business purposes than it places on state or local government entities.  For injured Mainers, this can lead to inconsistent results.  A person injured because of the negligence of a private property owner may be compensated, while a person injured due to the same careless behavior by a state or municipal government employee may be left out in the cold when it comes to compensation for medical bills, lost wages, and pain and suffering.

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