The Appellate Division of the New Jersey Superior Court dramatically shifted the “on-going storm rule” relative to snow/ice slip and fall claims in New Jersey. See Pareja v. Princeton International Properties, __ A.3d__ (N.J. Super. App. Div. April 9, 2020).
In Pareja, the defendant was a commercial property owner that had retained a service to perform snow and ice removal on the property. The plaintiff was a pedestrian who slipped and fell on black ice that was allegedly present on a portion of the defendant’s driveway. At the time of the fall, the air and ground temperature were at or below freezing, it was sleeting, and there had been a series of winter storms in the days preceding the accident. The National Weather Service had issued an advisory due to a mix of snow and sleet accumulations of around an inch and trace amounts of ice for the morning of the accident. The advisory warned of slippery conditions. However, the defendant had not employed any pre-treatments or snow removal on the day of the fall. The trial court granted summary judgment for the defendant by applying the ongoing-storm rule and holding that it had no duty to remove or reduce the ice hazard until after the precipitation ended. Interestingly, it also held that no de-icing or removal efforts would have been useful until after the storm ended.
The appellate court disagreed. It determined that the ongoing-storm rule is not, and was never, the law in New Jersey. It determined genuine issues of material fact existed as to whether the defendant had actual or constructive notice of the hazard and whether the defendant acted reasonably under the circumstances.
Several States apply a version of the storm in progress or ongoing storm rule because it is considered unreasonable to expect a property owner to attempt to remove snow or ice while it is still falling. However, in Pareja, the New Jersey Court stated that “[s]uch a bright-line rule. . . ignores situations when it is reasonable for a commercial landowner to remove or reduce foreseeable and known snow or ice hazards.”
The court went on to state that a commercial landowner has a duty to take reasonable steps to render a public walkway abutting its property — covered by snow or ice — reasonably safe. Such a duty cannot be fulfilled by always waiting to act until after a storm ends, regardless of the risk imposed to invitees and pedestrians. The commercial landowner’s liability may arise only if, after actual or constructive notice, it fails to act in a reasonably prudent manner under the circumstances to remove or reduce the foreseeable hazard. Whether it would be inexpedient or impractical to act is one of many factors for the jury’s consideration.
The court held that whether the property owner acted reasonably under the circumstances is a question for the jury, and the following factors should be considered in that assessment:
- Whether any action would be inexpedient or impractical;
- The extent of the precipitation, including the amount of snow or ice accumulation;
- The timing of the precipitation, whether it is day or night;
- The nature of the efforts, if any, to prevent, remove, or reduce snow or ice accumulation, especially whether conditions were so hazardous as to make it unsafe for the landowner or any contractor to venture out in the elements;
- The minimal usage consequent on a “closed” facility in contrast to a normal workweek;
- The number of individuals expected to use the public sidewalk, premises, and the area in need of attention;
- The past, current, and anticipated weather conditions, including but not solely dependent on reliable weather predictions, and the practicality of reasonable safety measures or methods of ingress or egress;
- Any other relevant factors.
This ruling will impact commercial property owners and contractors, along with their insurance carriers and counsel. It will make winning a motion for summary judgment in storm in progress cases more difficult.
It is more important than ever for commercial property owners in New Jersey to be conscientious about snow and ice management. This includes retaining snow and ice management professionals who can properly assess and service a property and document those services for when litigation ensues months, if not years, down the road.
ASCA Legal Counsel and frequent Snow Magazine contributor Josh Ferguson is the Partner and Co-chair of the Philadelphia and Cherry Hill offices at Freeman, Mathis and Gary LLP. If you have any questions or would like more information, please contact Josh Ferguson at firstname.lastname@example.org.