Woman cannot claim liability under condominium act, but can sue condo association for failure to clear snow
Sheyl Spigner fell and suffered injury while trying to retrieve her mail. She argued that the Yarmouth Commons Association and it's snow removal contractor were negligent in allowing several feet of snow and ice to accumulate in front of the condo mailboxes. Spigner's attorneys claimed that allowing the snow and ice to accumulate violated the Condo Association's statutory duty to maintain common areas and that it was also a common law violation of the duty of due care.
The Court of Appeals ruled that the condominium law created no statutory right in favor of residents, but that Spigner had presented a common law argument for jurors to decide whether the parties in possession had exercised reasonable care in snow removal. The majority rejected the argument that the landowner owed no duty to remove ice and snow because the remaining hazardous condition was "open and obvious." The judges pointed out that the hazard was "unavoidable" for a resident--even if it was detectable on casual inspection.
Judge Kirsen F. Kelly, the insurer's best friend, dissented. She would apply the open and obvious rule to summarily dispose of Spigner's claim because "she chose to confront the hazard" and she could have avoided going to her mailbox during the winter season.