Kramer, Elkins & Watt

Do I Really Need to Shovel Snow?

Do I Really Need to Shovel Snow?

As winter rolls on, it gets tougher and tougher for even the hardiest Wisconsinites to pull themselves out of bed before work and shovel out the previous night’s snowfall. This is especially true when snow accumulates on consecutive days or the piles of snow bordering our sidewalks get to be chest high. As obnoxious as it can be, there are Madison city ordinances as well as state law that compel snow removal.

 

Madison General Ordinance (“MGO”) 10.28

 

          First things first: sidewalks! In the City of Madison, MGO 10.28 requires a property’s owner to remove snow and ice from sidewalks abutting their property. Specifically, property owners must clear snow or ice “not later than 12:00 noon of the day after the snow or ice has accumulated on the sidewalk, regardless of the source of accumulation.” This would seem to include ice forming as a result of snow that melts during the day and freezes overnight to the extent it will not melt again during the day. If, for some reason, ice forms and cannot be removed, property owners “shall keep the [area]…sprinkled with sand or other suitable substance…to prevent the ice from being dangerous, until such time as it can be removed, and then it shall be promptly removed.” Violators can be charged up to $50 for a first-time offense, as well as the additional expenses should the city have to provide snow or ice removal.

 

What about snow on private property?

 

So, there is a city ordinance about sidewalks. What about private property? Do you need to shovel your driveway? There is no city ordinance that explicitly obligates a property owner to remove snow from private property. However, a property owner could run afoul of MGO 27.05 for failing to do so. MGO 27.05 obliges a property owner to, as relevant here, keep all driveways, walks, and parking areas properly maintained in a safe condition. Under this ordinance, a homeowner has a duty to remove snow and ice to the extent such snow and ice creates a safety hazard.  This would apply equally to business owners with private lots and walkways open to the public.

 

The Safe Place Statute

 

Section 101.11 of the Wisconsin Statutes applies a higher standard of care to business owners and employers in negligence actions if certain circumstances are met. Employers have an affirmative obligation to “furnish a place of employment which shall be safe for employees therein and for frequenters thereof…and shall adopt and use methods and processes reasonably adequate to render such employment and places of employment safe, and shall do every other thing reasonably necessary to protect…safety…of…employees and frequenters.” Additionally, both employers and building owners must construct, repair, and maintain buildings to render them safe. Places of employment include both buildings as well as outdoor premises appurtenant thereto.

 

While both the owner of a building and an employer have obligations for snow removal under this statute, they are not necessarily the same. The Supreme Court of Wisconsin has found that “the obligation…of an owner of a public building who leases the building to another is limited to structural or physical defects.”[1] Under this precedent, it is possible that the owner of an office building who leases the building out to various businesses would not be liable for, say, wet floors caused by melting snow when the owner does not exert daily control over the building.

 

Specifically, regarding snowfall and the hazards that accompany it, Wisconsin’s Supreme Court has said that, “standing alone, a temporary natural accumulation of snow is insufficient to provide notice of an unsafe condition under the safe-place statute.”[2] However, the Court of Appeals has found that compacted snow that accumulated over two days could constitute an unsafe condition.[3] Cases under the safe-place statute are very fact intensive, but when the ultimate question is whether the premises are kept as safe “as the nature of the…place…will reasonably permit”[4], it is easy to see the threat that accumulating snowfall can cause if employers and building owners do not diligently maintain the premises. This is especially true as the Supreme Court of Wisconsin has found that “the duties imposed on employers and property owners under [the safe place statute] are nondelegable.”[5]

 

While the cold of Wisconsin winters makes shoveling snow difficult to do, especially day after day, failure to do so can make a property owner liable for an assortment of damages. If you are a business owner or building owner with questions about your obligations to remove snow and ice, make a warm mug of hot chocolate and contact the attorneys at Kramer, Elkins & Watt, LLC at 608-709-7115 or info@kewlaw.com.

 

 

 

[1] Powell v. Milwaukee Area Tech. Coll. Dist. Bd., 225 Wis. 2d 794,  594 N.W.2d 403 (Ct. App. 1999).

[2] Kochanski v. Speedway SuperAmerica, LLC, 2014 WI 72, ¶37, 356 Wis. 2d 1, 850 N.W.2d 160.

[3] Hendrix v. Secura Ins., 2020 WL 425312, 2020 Wisc. App. LEXIS 45, (per curiam).

[4] Wis. Stat. § 101.01(13), defining “safe” and “safety”.

[5] Barry v. Employers Mutual Casualty Co., 2001 WI 101, 245 Wis. 2d 560, 630 N.W.2d 517, 98