Editor's Notebook: "Ongoing Storm" Ruled Out As Slip-and-Fall Defense in NJ
Miriam Dörr;

Editor's Notebook: "Ongoing Storm" Ruled Out As Slip-and-Fall Defense in NJ

State's high court rules slip-and-fall protection doesn't apply and property owner had duty to ensure safe conditions during an ongoing winter event.

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September 11, 2020

The New Jersey Superior Court has ruled that the ongoing snow-storm rule, which relieved commercial property owners from any obligation to provide safe conditions during an ongoing snow and/or ice event, didn't apply in a recent case because the defendant (property owner) had a duty to maintain safe pavement conditions.

For New Jersey property owners and managers, without the protection of the "ongoing storm" rule this decision could embolden nefarious characters to seek out slick and/or snowy properties during an event for the opportunity to file a bogus slip-and-fall claims.

However, for Garden State snow fighters, this means stressing to property owners the importance of vigilant winter services and a snow and ice mitigation strategy provided by qualified and professional snow and ice managers who keep fastidious service records.

In addition to providing snow and ice mitigation services, detailed record keeping and proof of service is the best way to protect against unwarranted slip-and-fall claims.

Our legal friends at Freeman, Mathis and Gary break down this ruling and provide more valuable details...

In Pareja v. Princeton International Properties, __ A.3d__ (N.J. Super. App. Div. April 9, 2020), the Appellate Division of the New Jersey Superior Court reversed a summary judgment decision in favor of a commercial property owner defendant who was sued after a plaintiff slipped and fell on black ice that had accumulated on a portion of defendant’s driveway that is connected to the public sidewalk.

At the time of the accident, temperatures were below freezing, it was drizzling sleet, and there had been numerous storms in the days preceding the accident. Although the National Weather Service had issued a warning regarding slippery conditions due to the mix of snow and sleet, the defendant had not employed any pre-treatments or snow removal on the day of the accident.

The trial court granted summary judgment in favor of the defendant by applying the ongoing snow-storm rule. The ongoing storm rule relieved commercial property owners from any obligation to try to render their property safe while sleet, snow or ice is falling. The rule is premised on the ground that to do so would always be inexpedient and impractical. The trial court held that the defendant had no duty to remove or reduce the black ice until after the precipitation had ended. The appellate court disagreed and reversed.

The Appellate Court held that the defendant had a duty to take reasonable steps to render a public walkway abutting its property reasonably safe, even when precipitation is falling. In its reasoning, the court noted that a 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. In the case at hand, the court found that there are genuine issues of material fact as to whether the defendant commercial landowner acted reasonably under all circumstances by not doing anything to remove or prevent the black ice hazard during the precipitation. Therefore, the appellate court reverse the summary judgment decision indicating that the question of whether the commercial landowner’s inaction was reasonable under the circumstances was a question for the jury.

Following the Pareja decision, it is now more important than ever for commercial landowners to be diligent about snow and ice removal on their properties. Commercial landowners should reevaluate their contractual agreements with vendors for snow and ice removal to ensure that these contracts address providing snow and ice removal to their properties during an ongoing snowstorm in order to protect from any liability for snow and ice-related injuries.

If you're a snow professional with questions or would like more information about this ruling, please contact Stacey Bavafa at sbavafa@fmglaw.com or Michelle Yee at myee@fmglaw.com.