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New Jersey Appellate Court’s Icy Reaction to the “On-Going Storm” Defense Could Precipitate a Flurry of Lawsuits

In an opinion published on April 9, 2020, the Appellate Division of the New Jersey Superior Court determined that the “on-going storm rule” does not apply in New Jersey. See Pareja v. Princeton International Properties, __ A.3d__ (N.J. Super. App. Div. April 9, 2020). The on-going storm rule generally relieves a commercial property owner from a duty to attempt to render their property safe from weather conditions while sleet, snow, or ice are still falling. Jurisdictions that apply the rule do so because it is considered inexpedient or impractical to attempt to remove snow or ice while it is still falling. However, in Pareja, the New Jersey Court held 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.”

Specifically, the court held:

[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—to remove or reduce a foreseeable hazard—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 in making the decision they should consider the following factors:

  1. Whether any action would be inexpedient or impractical;
  2. The extent of the precipitation, including the amount of snow or ice accumulation;
  3. The timing of the precipitation, whether it is day or night;
  4. 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;
  5. The minimal usage consequent on a "closed" facility in contrast to a normal workweek;
  6. The number of individuals expected to use the public sidewalk, premises, and the area in need of attention;
  7. 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;
  8. Any other relevant factors.

In Pareja, the defendant was a commercial property owner that usually employed a landscaping service to perform snow and ice removal on the property. The plaintiff was a pedestrian who slipped and fell on black ice that had accumulated on the portion of the defendant's driveway that connected to the public sidewalk. At the time of the fall, the air and ground temperature were at or below freezing, it was drizzling sleet, and there had been a number 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. 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.

This ruling has many implications for commercial property owners and the lawyers that represent them. Importantly, it will make winning a motion for summary judgment in an ongoing- storm case very difficult unless the defendant clearly did not have actual or constructive notice of the dangerous weather conditions. And, although the court explicitly noted that it was not imposing strict liability on property owners during storms, it will likely lead to many cases being filed that previously may not have been. It is more important than ever for commercial property owners in New Jersey to be diligent and vigilant about snow and ice removal.

With an increase in the likelihood of liability for snow and ice-related injuries comes a need to consider risk allocation and indemnification. To that end, now is the time for commercial property owners to reevaluate their contracts with vendors for snow and ice removal. Policies and provisions regarding when snow and ice removal or pre-treatment services are required should be reconsidered to reflect the factors discussed above.