Your responsibility under the circumstances is pretty clear here, at least unless you’re prepared to pay for a wardful of kiddie-sized artificial limbs: you’re going to have to clear out, rope off, or otherwise mitigate an obvious hazard to the public on your property.

Easy enough. Now try this one: what if it were a January morning, and you awoke to find that your sidewalk had naturally frozen into a solid sheet of slippery snow and ice? Until recently, you could have thrown some popcorn in the microwave, eased into your favorite bunny slippers, and enjoyed the hilarious slip-and-fall antics with your morning coffee.

The ice was, you see, merely a “natural accumulation.” It came from the sky! It wasn’t your fault!

That’s right: Massachusetts law for the past 150 years has held property owners responsible only for injuries resulting from “unnatural accumulations” of snow and ice. While the “natural” vs. “unnatural” distinction is about as unnatural as it gets, the best I’ve been able to discern is that accumulations caused by any kind of “synthetic” means (i.e., your mother going a little crazy with the snowblower) incur liability, while those which have fallen into place “naturally” (i.e., Mother Nature) do not.

This rule, eliminated at long last today in Papadopolous v. Target, was so stupid that it has been known nationwide as “The Massachusetts Rule” for at least the past century. (This kind of special treatment is not generally proportionate to a given rule’s logic or correctness.) It is an ancient holdover from a time when a completely different legal standard was applied to the duty owed by landowners to people who might be passing over their property in the normal course of business (”invitees”) as opposed to paying tenants.¹

I don’t have much of a stomach for torts,² but anyone who was mostly conscious through their first year of law school will recall the “duty of reasonable care” which homeowners owe to those—even, in some cases, known trespassers—who may be crossing over their property. The principle is pretty straightforward: Every man’s home is his castle, and if you want to cover your floors in rancid butter, rusty caltrops, and used medical supplies, you have every right to do so—so long as you don’t expose anyone else to these conditions. If you know (or have reason to know) of a hazard which might be encountered by others, you have a legal³ responsibility to employ all reasonable means available to clean it up. Hence the banana peels-and-bear-traps hypothetical above, and the simple logic of today’s decision. While a general duty of reasonable care to anyone who might cross their property has been the law for property owners in the Commonwealth since at least the 1977, the courts never bothered to shovel up the old “natural” vs. “unnatural” distinction for snow and ice—and plaintiffs have been tripping up on it ever since.

This weird little exception to the reasonable care rule is somewhat understandable on a practical level: clearing out snow in the middle of a New England winter is a lot of work. But even Rhode Island⁴ snidely parted ways with Massachusetts on this years ago, laconically noting that:

We believe that today a landlord, armed with an ample supply of salt, sand, scrapers, shovels and even perhaps a snow blower, can acquit himself quite admirably as he takes to the common passageways to do battle with the fallen snow, the sun-melted snow now turned to ice, or the frozen rain.

–-Fuller v. Housing Auth. of Providence, 108 R.I. 770, 773 (1971)(emphasis added)

The SJC has basically adopted this reasoning, albeit in slightly less-quotable form, and scattered enough quick-melt salt on the old “natural accumulation” rule to do away with it forever. It even liked this development so much that it opted to make the rule fully retroactive—complete with the usual inevitable assurances that, really, there’s no reason to think that any litigation-minded plaintiff would actually be impolite enough to reach for the blank checkbook this might present for anyone who has taken a spill on some ice in the past 150 years.⁵

As of Papadopolous, the SJC has now finally—mercifully—brought Massachusetts to the very cutting edge of postmodern snow law. Bonus: this decision lands in the middle of one of the Commonwealth’s hottest summers on record.

Happy shoveling!

1. The SJC has provided a perfectly serviceable review of the 150 years of relevant law within its opinion which I don’t feel any need to retread here.
2. at least those not served a la mode
3. if not moral and social
4. Rhode Island! A place so married to tradition that it is the last American state to continue to openly celebrate Victory over Japan Day!
5. I kid. This was, of course, a major change to a common law rule, a circumstance which generally demands retroactivity. I just love how every time any court announces a groundbreaking retroactive rule it always seems to feel obligated to add that this won’t really, y’know, change anything, and there’s certainly no reason to believe that it will inspire a fresh wave of legal action.

“For preventing disorders, arising in several places within this jurisdiction by reason of some still observing such festivals as were superstitiously kept in other communities, to the great dishonor of God and offense of others: it is therefore ordered by this court and the authority thereof that whosoever shall be found observing any such day as Christmas or the like, either by forbearing of labor, feasting, or any other way, upon any such account as aforesaid, every such person so offending shall pay for every such offence five shilling as a fine to the county.”

From the records of the General Court,
Massachusetts Bay Colony
May 11, 1659

Buried right in the middle of the steaming dog’s breakfast of old-timey criminality that is G.L.c. 272 Sec. 53 is the quaint classification of “persons who with offensive or disorderly acts or language accost and annoy members of the opposite sex.” Although not as widely employed as the “disorderly persons” provision, this may well be one of the stupidest criminal charges in the Mass. General Laws—if not any state criminal code—now in regular active use.

At worst, behavior sufficient to constitute “accosting and annoying” is pretty much just what it sounds like: criminal sexual harassment. There are only about a half-dozen appellate cases interpreting this, but it amounts to (1) “offensive or disorderly conduct” (2) intentionally directed at (3) a member of the opposite sex.

Such conduct can range (the following are all actual reported cases) from the truly scary (i.e., posting super-creepy “Wanted” posters of your ex-girlfriend around your high school) to the understandably irritating (unwanted hugs, backrubs, and verbal come-ons from a coworker which could have been addressed under existing civil sexual harrassment law), to old-fashioned indecent exposure to very-nearly victimless crimes (singing showtunes in the general direction of a teenage girl while leering at her).  I’m not saying that most of these offenders should have gone entirely unpunished, but only that there has to have been a more Constitutional—and slightly less Puritanical—way to charge them.

There is an obvious potential First Amendment problem automatically raised in any law which permits criminal prosecution based solely on non-threatening speech toward another. But I can acknowledge that this is more of an “as applied” challenge, given that the majority of speech for which someone may be charged under this statute is probably not protected by the First Amendment.

I am far more concerned that there is a really serious inherent equal protection violation built right into the statute for as long as the “opposite sex” element of Sec. 53 remains.

Here’s how it works:

I don’t know about you, but I, dear reader, have been accosted and annoyed by a member of the same sex. Maybe it’s my boyish good looks, my full head of hair, or the femme-y, Ira Glass-y, nasal I slip into when I start to get excited and run my words together, but there it is. I think “annoyed” is really the right word; I really don’t care, and it’s nothing to call the police over.

But you see the problem: Even if I wanted to, I couldn’t! There’s no crime! By criminalizing what I will call from this point forward “sexual harrassment” of the opposite sex, our legislature has by exclusion condoned and permitted sexual harrassment of the same sex at will throughout the Commonwealth. Obviously, this was not an intentional outcome, but only a natural consequence of keeping a 400-year-old statute on the books.

Public admissions and/or displays of homosexuality would have been wholly unthinkable to the Puritans of the Massachusetts Bay Colony. Women, as the “weaker sex,” required the vigilant oversight of their male providers and protectors. This is the world into which Sec. 53 was born, and the world in which it should have died. Instead, it fell on some ice.

As you may have heard, the gays have been a’marryin’ in healthy numbers here in the Commonwealth in the five years since the SJC affirmed everyone’s right to marry in Goodridge v. Dept of Public Health. As a true believer in stupid old liberal cliches like the right to privacy and equal protection under the law–not to mention that hippie pabulum about how maybe love really is all you need–I’m willing to bravely face the open threat that this ruling no doubt continues to pose to the domestic tranquility I now enjoy with my own heterosexual life partner. (We’ve made it so far, anyway…)

My point, however, is that I was particularly struck by the following observation in Justice Greaney’s Goodridge concurrence:

A classification may be gender based whether or not the challenged government action apportions benefits or burdens uniformly along gender lines. This is so because constitutional protections extend to individuals and not to categories of people.

While I must repeat again my unconditional support for equal marriage rights, I am compelled to point out that the above logic does compel the conclusion that Sec. 53 may be the only law currently in force in the United States which unfairly burdens heterosexuals. Simply put, heterosexual victims of opposite-sex advances may receive the full protection of our law enforcement system, while their counterparts on the receiving end of same-sex advances may not. Or, as I recently wrote in far more words:

The accosting and annoying provision of [Sec. 53] as it now reads is impermissibly and unconstitutionally underinclusive, in that it excuses an entire potential class of perpetrators while concurrently failing to protect their victims solely on the basis of their respective genders. As such, this provision’s strikingly anachronistic, unmistakably paternalistic, and quintessentially Puritanical language and intent are outshone only by the luminous glare of its arrant unconstitutionality.

I am not the first to make this argument, and I expect that I will not be the last. At the very least, the phrase “of the opposite sex” needs to go. At best, I’d like to see the entire “accost and annoy” provision removed if and when the legislature ever gets around to redoing Sec. 53 as fully and comprehensively as the SJC has asked them to.

But, like the man said, the past isn’t dead… it isn’t even past. For as much as there is to love about having a constitution and an attorney’s oath that are at least twice as old as most American states, it also means that we sometimes have to live with statutes that are just as old–or older.

Our legislature’s woeful failure to update some of our creakiest and most ancient statutes seems to be driven by the same philosophy that has kept the cult of King James going in certain Christian circles: If it was good enough in 1620, it’s good enough for 2008.

Take G.L.c. 272 Sec. 53 (…please!). Although it’s usually referenced as the “disorderly conduct” statute, it is actually a tasty smorgasbord of old-timey criminality. Namely:

Common night walkers, common street walkers, both male and female, common railers and brawlers, persons who with offensive and disorderly acts or language accost or annoy persons of the opposite sex, lewd, wanton and lascivious persons in speech or behavior, idle and disorderly persons, disturbers of the peace, keepers of noisy and disorderly houses, and persons guilty of indecent exposure…

There’s a lot to say about this damnably stupid law, starting with this: It needs to die. Just ask our own Supreme Judicial Court:

We note at the outset that G.L.c. 272 Sec. 53 has been saved, although sometimes just barely, by several limiting constructions and we have repeatedly commented that the statute is archaic and in need of legislative scrutiny.

Commonwealth v. Chou, 433 Mass. 229 (2001), FN2.

Which is to say: Boys,  load up yer shotguns, drag this thing out back, and kindly shoot it in the HEAD.

Fair game, as were prior remarks that this section has “had a tortured history” (too lazy for a full cite, but it was 1975), and is “obviously is badly in need of careful legislative attention and comprehensive revision and rearranging” (same, 1981).

All true. Sec. 53 has been in legal force in one form or another since the earliest days of the Massachusetts Bay Colony, back when freedom of speech meant “freedom of Biblically-sanctioned Puritan speech” and your mom was just getting started in her storied career as a common night walker. Its manifest “constitutional infirmities” (1988) have been remedied only by acts of judicial triage, most significantly a constructive grafting of the Model Penal Code’s definition of “disorderly” (1975) as well as generously limiting its scope to “conduct which involves no lawful exercise of a First Amendment right” (1976).

And it used to be much worse. The last serious attempt to revise and rearrange Sec. 53 “to simplify, to clarify, to modernize, and to make more precise an ancient statute some of the terms of which were difficult to define and had come to have a flavor of obsolescence” was undertaken in 1941. See Commonwealth v. Lombard, 321 Mass. 294 (1947); See also Commonwealth v. Diamond, 248 Mass. 511 (1924)(tracing disorderly conduct statute’s history from 17th century colonial law to the 1920s).

The 1941 reform decriminalized the conduct of a whole merry band of ne’er-do-wells previously named in Sec. 53’s predecessor. To wit: “rogues and vagabonds,” “common pipers and fiddlers,”persons who use any juggling or unlawful games or plays,” “pilferers,” “persons who neglect all lawful business and habitually misspend their time by frequenting houses of ill fame, gaming houses or tippling shops ,” (these last being, I gather, some kind of Victorian packies) and (my favorite) “persons who neglect their calling or employment or who misspend what they earn and do not provide for themselves.” Lombard, again, but see also Alegata v. Commonwealth, 353 Mass. 287 (1967). (When taken as a whole, it appears that this revision also effectively legitimized the existence of most of Allston-Brighton.)

So that’s all pretty hilariously self-explanatory. What is not is why what is left of Sec. 53 hasn’t gone the way of old chestnuts like the  one that used to criminalize “tramps” (still going strong while Lowell native Jack Kerouac was on the road), or the one about any “person known to be a pickpocket, thief or burglar… acting in a suspicious manner around any steamboat landing [etc],” both of which were  gutshot by Alegata more than forty years ago while Sec. 53 was left on life support.

Yes, our creepy Puritan great-uncle still wanders the old post roads, a cheerless zombie who munches nuts and berries while sprinkling himself with ashes as he mumbles about the Commonwealth of idle and disorderly railers and brawlers and common night walkers we’ve become.

As amusing as this bit of colonial arcana is, it is also a real law with real consequences, under which real people are convicted every day.  I presently have four separate appeals pending in which my clients were charged and convicted under this statute. Three of these four were sentenced to the maximum six months of committed time on the basis of nothing more than things that they said to other people and I still just don’t see why.

Next: prepare to be accosted and/or annoyed!