D.C., Maryland, Virginia homeowners need to know the laws covering ice and snow

A Frederick family cleans up after a winter storm.
A Frederick family cleans up after a winter storm. (Katherine Frey/the Washington Post)
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By Benny L. Kass
Saturday, December 12, 2009

The first snow of the season has already come and gone, with the promise of several return visits. This prompted me to examine the laws in the Washington area on homeowners' obligations. What liability do you have should someone slip on the ice in front of your house?

Although local jurisdictions have adopted regulations for when you should shovel the snow, the laws in Virginia, Maryland and the District follow what is known as common law. If you are injured on someone's property because of the ice and snow, in most situations the common law protects the homeowner from liability.

Laws generally fall into two categories: Statutory law, which refers to laws passed by a legislative body such as a city council, and common law.

If a legislative body does not enact laws, then lawyers and judges fall back on common law, the origins of which go back to the nation's British heritage. A judge decides a case, and another judge, relying on precedent, makes the same decision in a later case involving similar facts. Over the years, this case law creates the common law.

This does not mean homeowners are free to ignore the snow. For example, in the District, statutory law requires property owners to keep public sidewalks in front of their premises clear. But according to the high court in the District, only the government has the authority to enforce it. With one exception, there is no legal cause of action that an injured party has to file a lawsuit. All that the District government can do is arrange to shovel the snow, bill the homeowner for the costs and fine the homeowner not more than $25 for each violation.

Negligence is another matter. If a homeowner has made the sidewalk more hazardous by creating ice bumps or has let the snow and ice sit for days after a storm ends, that homeowner may be liable for injuries sustained by a pedestrian.

In the District, the law is evolving. Although the D.C. Court of Appeals has never specifically ruled that a homeowner will be held liable for making the sidewalk more hazardous, a recent Superior Court case has opened the door for such a ruling. Judge Neal Kravitz, in a case decided Aug. 7, held that because the plaintiff alleged negligence on the part of the homeowner, the case would not be dismissed and would go forward for a jury trial.

Maryland law is similar to that of the District. However, courts have decided that under their common law, a property owner has the duty to keep walkways shoveled 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."

In a "slip and fall" case, the burden will be on the plaintiff -- the person who fell -- to prove such notice.

Virginia common law also mirrors 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 the court, since the danger is both open and obvious, a private homeowner should not be held liable if someone is 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.

But state and local legislators were not comfortable relying solely on the common law, and, accordingly, local 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 sidewalks "within the first eight hours of daylight after the ceasing to fall of any snow or sleet."

The Montgomery County Council enacted an ordinance requiring that the person who "owns, leases, or manages . . . any walkway in the public right-of-way . . . provide a pathway wide enough for safe pedestrian and wheelchair use."

In Virginia, counties and cities have also been authorized to enact laws requiring snow removal, but only if they provide "reasonable time frames for compliance and reasonable exceptions for handicapped and elderly persons." Virginia code limits penalties to $100.

If you slip on ice and are injured in the metro area, you may be successful in court only if you can prove that the property owner knew (or should have known) that the storm created a dangerous condition and that the owner was negligent.

Regardless of the laws in your jurisdiction, it won't hurt to 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."

Benny L. Kass is a Washington lawyer. For a free copy of the booklet "A Guide to Settlement on Your New Home," send a self-addressed stamped envelope to Benny L. Kass, 1050 17th St. NW, Suite 1100, Washington, D.C. 20036. He cannot guarantee to answer all questions.

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