The Ongoing Storm Rule

ASCA Update - ASCA Update

For snow and ice management contractors, having proper procedure and contract language in place between snow pro and owner detailing a clear scope of work are the keys to a solid winter services contract.

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In the snow and ice management industry, the risks associated with slip-and-fall claims is ever present. More than one million Americans suffer a slip, trip, or fall annually and an unintentional fall is the leading cause of nonfatal injury resulting in emergency department visits, according to the Centers for Disease Control and Prevention (CDC).

The hazards associated with an ice-covered or improperly treated walkway are of great concern to the industry and its procedures. Equally important is knowing your legal defenses to these types of claims.

From a legal perspective, the ongoing storm rule has provided some clarity – at least in New Jersey and some neighboring states – regarding when liability for the risk of slip-and-fall injury passes from pedestrian to property owner or snow and ice contractor. The ongoing storm rule provides that, absent unusual circumstances, commercial landowners do not have a duty to remove the accumulation of snow and ice until the conclusion of a storm. The premise of the rule is that it is categorically inexpedient and impractical to remove or reduce hazards from snow and ice while the precipitation is ongoing, according to Pareja v. Princeton Int’l Props., 246 N.J. 546, 558 (N.J. 2021).

The exceptions, or unusual circumstances as noted by the court, that may create a duty before cessation of the storm are:

  • Commercial landowners increase the risk to pedestrians on their property; and (2)
  • Where there is a pre-existing risk on the property before the storm and owner fails to remove or reduce the risk – including the duty to remove snow and ice from a previous storm.

In other words, property owners and/or managers cannot escape liability even if the snow is still falling where the owners increase the risk of harm, say by misplaced snow stacking rendering a walkway impassable, or by failing to have proper post-storm requirements in place.

In New Jersey, the genesis of the ongoing storm rule traces its roots to early 20th Century case law. The case is Bodine v. Goerke Co., 102 N.J.L. 642 (N.J. 1926) arose when a pedestrian slipped and fell on approach to a store entrance. The accident occurred at 12:30 PM and at that point there was “slushy” snow upon the ground according to witnesses. Records were introduced to show that snowfall commenced at 9 am and did not cease until 3 pm the same day. With knowledge of this timeline, the court ruled in favor of the defendant finding that the defendant was not at fault for allowing snow conditions to remain present at the entrance because the precipitation was ongoing when the pedestrian fell. Looking back to this case, Pareja unequivocally holds, despite being questioned in some lower courts, that the ongoing storm rule remains a viable defense in New Jersey, subject to the two exceptions.

For snow and ice management contractors, the key is that proper procedure and contract language is in place between contractor and owner defining a clear scope of work (SOW). SOW is one of the most important aspects of a snow removal contract as it defines the who, what, when, where, and how for snow removal services, usually on a site-by-site basis. A proper SOW should describe the service level or trigger depth for plowing, timeline for salting, and specific areas of premises to work and exclude.

Supplemental services, like off-site hauling should be addressed in the SOW, too. Contractors must avoid increasing their own exposure by avoiding 24/7 ice watch clauses and ensuring the property owner/manager maintains responsibility for monitoring or inspecting the premises. Ideally, the liability for the contractor is only present when the contractor is on the premises and ends when the contractor leaves.

There are several other important contract provisions to consider when entering a snow removal contract to limit exposure.

Contractors want to avoid responsibility for thaw and refreeze events after salt application(s) – as directed by the owner/manager of the property. Services should be deemed satisfactory – meeting the workmanlike manner standard – unless notification is provided within 24 hours of services performed. Contracts should explicitly state that the contractor is not responsible for injury or loss that occurs after the contractor leaves the premises. If possible, avoid broad indemnification provisions and exculpatory clauses favoring the property owner/manager as these may impact liability if a lawsuit is filed. Significantly, subcontracts should capture and include all obligations and limitations in the original contract, as well as appropriate insurance coverage requirements.

In addition to proper contract language, snow removal professionals should ensure appropriate record-keeping systems are in place. In a slip-and-fall case, available document evidence may often trump witness testimony. Snow removal professionals should seriously consider ASCA Certification (ASCA-C) and its associated online coursework. Moreover, the ASCA publishes and maintains the System Requirements for Snow and Ice Management Services, known as the Industry Standards. Consult the Industry Standards when preparing or considering snow removal contracts or establishing document retention protocols.

It is recommended that contractors consult a lawyer when drafting or considering a written contract. FMG is experienced with drafting and reviewing seasonal, per application, per push and hybrid snow removal contracts. FMG excels in representing insurance carriers and professional snow and ice companies in defending snow or ice related slip-and-fall lawsuits.

If you have questions or need more info, contact either Joshua Ferguson, Esq. (jferguson@fmglaw.com) or Nicholas Hubner, Esq. (nicholas.hubner@fmglaw.com).

Josh Ferguson is a Partner and Co-chair of the Philadelphia office at Freeman, Mathis & Gary LLP and the ASCA’s general counsel.

Nicholas Huber is an attorney with Freeman Mathis & Gary LLP experienced in handling commercial litigation disputes. Nick represents commercial clients acting as both plaintiffs and defendants in New Jersey, New York, Pennsylvania and federal court nationwide.