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Dec 29, 2016

City Sidewalk, Busy Sidewalks, Slippery Winter Sidewalks

Category: Municipal

Municipal Liability for Winter Snow Removal

Black ice. Drifting snow. Towering snowbanks. Soon we will be in winter's full embrace, once again wrestling with weather that makes travel - by foot and by vehicle - difficult and dangerous. As we move into the season of dark and cold, snowmobiling and skiing, bitter winds and warm fires, let's pause for a refresher on municipal liability for slippery surfaces.

Municipal liability for road-related injuries and damage is governed primarily by the Maine Tort Claims Act ("MTCA") and the Highway Liability for Damages Act - better known as the "Pothole Law." This brief note considers each in turn.

The Maine Tort Claims Act (14 M.R.S. §§ 8101-8118) provides that all governmental entities are immune from suit on tort claims seeking recovery of damages and also provides that only express statutory exceptions will overcome this immunity from suit. When the Law Court considers a claim of governmental immunity under the Act, immunity is the rule and exceptions to immunity are strictly construed. The Act thus serves as a shield for Maine's municipalities, protecting them from some forms of costly litigation.

Examples of exceptions to immunity that might involve plowing and sanding operations are:

  1. Negligent acts or omissions in the construction, operation or maintenance of public buildings and the sidewalks leading to those buildings.
  2. Negligent acts or omissions in the ownership, maintenance or use of any motor vehicles, machinery and equipment, such as snow plows, graders and dump trucks.
  3. Negligent acts or omissions during construction, street cleaning or repair operations on any highway, town way, sidewalk, parking area or bridge, including street signs, traffic lights, parking meters and guardrails. (Note that municipalities cannot be held liable for the lack of a street sign or the failure to replace a missing sign).

Importantly, "street cleaning" and "repair" operations do not include the failure to remove snow or ice from the road under the MTCA (see Goodine v. State, 468 A.2d 1002 (Me 1983)). In fact, although this point may be as clear as the view across an open field during a February blizzard, the question of liability for snowy, slippery sidewalks and roads is not dealt with under the MTCA.

Rather, we turn to the Highway Liability for Damages Act (the "Pothole Law") for guidance. 23 M.R.S. §3658 provides, "No town is liable to an action for damages to any person on foot on account of snow or ice on any sidewalk or crosswalk nor on account of the slippery condition of any sidewalk or crosswalk."In other words, municipalities are specifically immune from liability for snow, ice or slippery conditions on any sidewalk.

And what of slippery roadways? State law (23 M.R.S. § 3201) clearly requires municipalities to remove snow from the roads so that the traveling public can get where they need to go. However, your town or city will not be held liable for accidents caused by snowy or icy roads. (See 23 M.R.S. § 1005-A(1)). Similarly, road surfaces slick with winter's worst are not considered "highway defects" under the Pothole Law (23 M.R.S. §§3651-3655; Wells v. City of Augusta, 135 Me. 314 (1938)). Under the Pothole Law, municipalities cannot be held liable for road defects unless a Councilor, Selectperson, the road commissioner, public works supervisor or other municipal official whose duties relate to the roads had 24 hours actual notice of the defect prior to the injury. Further, a notice of a defect must be specific enough to enable town officials to locate the defect.

Although governmental entities enjoy a great deal of immunity for slippery surfaces, it goes without saying (but I'll say it anyway) that the public's interests are best served by prompt attention to snow and ice removal. No matter the size or location of your community, it pays to discuss, and perhaps even adopt, policies and procedures for efficient and effective snow and ice control. The Maine Local Roads Center offers excellent resources related to winter plowing and sanding here:

The official start of winter is weeks away. Are you prepared?

We are sending this bulletin to bring useful and timely information to our clients and colleagues. It is only information we hope you will find interesting or useful and not legal advice. You should not rely on any information or views in this bulletin as legal advice on any specific legal issue you may have.  Please contact your Skelton Taintor & Abbott attorney for specific legal advice. U.S. Treasury rules require us to tell you that any U.S. Federal tax advice contained in this communication (whether distributed by mail, email or fax) is not intended or written to be used and cannot be used by any person for the purpose of avoiding U.S. Federal tax penalties or for the purpose of promoting, marketing or recommending any entity, investment plan or other transaction.

Skelton Taintor & Abbott is a full service law firm providing legal services to individuals, companies, and municipalities throughout Maine. It has been in operation since its founding in 1853.