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Appellate Division Rejects Ongoing Storm Rule in Second Decision

By on October 9, 2020 in Negligence with 0 Comments

Plaintiff Josselyn Berniz (“Berniz”) worked as a housekeeper for defendants Jeffrey and Aisha Atkins. After cleaning their home, while leaving, she fell on their snow covered driveway.  It was still snowing when she left the defendants’ home. The issue in Berniz v. Atkins, 2020 N.J. Super. Unpub. LEXIS 1900 (App. Div. Oct. 8, 2020) was whether the “ongoing storm rule” subjected her claim to a dismissal.

When Berniz arrived that morning at the defendants’ home at about 9:30 am, she parked her car close to the garage doors. There was just a little bit of snow and ice on the driveway from recent storms. The plaintiff testified that she saw no salt or de-icing agent on the driveway. She entered the home with no incident.

Around lunchtime, the defendant Aisha Atkins asked plaintiff to move her car out of the driveway to the public street because of a severe storm warning. The defendant wanted all of the vehicles off the driveway so that their contractor could plow it. The plaintiff moved her car as instructed. As she was walking back to the house, she noticed that snow had started to accumulate.

The plaintiff finished her work around 4:30-5:00 pm. As she left the residence, Aisha warned her to be careful due to the snow. By this time, plaintiff’s route to her car was covered with snow and it was dark outside. Although owning a shovel and salt, the defendants failed to use either before the plaintiff left their home, nor did they take any action to help her down their snow covered driveway. They also did not turn on their outside lights.

As Berniz walked down the driveway to her car, she slipped and fell on the driveway, injuring her right hand.

At the trial court level, the defendants successfully had the case dismissed by summary judgment. The defendants relied upon the Bodine v. Goerke, 102 N.J.L. 642 (1926) case, which they argued stood for the proposition that “a landowner has no duty to remove snow or ice until a reasonable time after precipitation ends.” The trial court judge found that the plaintiff’s own actions caused the accident because of her coming to work, despite knowledge of the impending storm, and did not find that there was a duty owed by the defendants to her.

The plaintiff appealed the trial court’s dismissal to the Appellate Division. The Court reversed, relying upon its recently published decision in Pareja v. Princeton International Property, 463 N.J. Super. 231 (App. Div. 2020). In Pareja, the Court essentially rejected the ongoing storm rule as a defense and found that “a commercial landowner must take reasonable steps even when precipitation is falling.”

The Court noted that, per its Pareja decision, they felt that it was “dubious” that the ongoing storm rule was part of New Jersey’s jurisprudence. In Pareja, the Appellate Division found that “the mere fact that snow was falling when plaintiff slipped and fell, did not blanket defendants with immunity.” Instead, the Court followed case law concerning the duty of a landowner to “reasonably remove or reduce a hazard” once the person “knows or should have known about the dangerous condition.” A defendant’s negligence will turn on all relevant circumstances, only one of which was the continuing snowfall.

Here, the Appellate Division disagreed with the trial court judge that the plaintiff assumed the risk by leaving home. The Court found that there were issues of fact that should have precluded the trial court judge from granting summary judgement to the defendants. There were questions of fact as to whether the defendants acted reasonably in requiring the plaintiff to move her car in the middle of the day, extending her path from the residence to her car in the midst of snowstorm and failing to shovel or salt the driveway before plaintiff left the home at the end of the day and stepped onto the unlit, snow covered driveway.

The Appellate Division ruled that the trial court judge should have denied summary judgment. The Court reversed the trial court’s decision and remanded the case back for trial.

Neither this unpublished decision, nor the published Pareja Appellate Division decision, will be the last word on this topic in New Jersey. The Pareja decision was appealed to the Supreme Court by way of Petition for Certification. On September 9, 2020, the Supreme Court granted the defendant’s Petition for Certification (Pareja v. Princeton International Property, 2020 N.J. LEXIS 973 (Sept. 14, 2020)). Once the Supreme Court rules on this appeal, we will find out whether or not New Jersey will recognize the ongoing storm rule as a viable defense for commercial landowners.

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Betsy G. Ramos

About the Author

About the Author:

Ms. Ramos is an Executive Committee Member and Co-Chair of the Litigation Department at Capehart Scatchard, P.A. located in Mount Laurel, New Jersey. She is an experienced litigator with over 25 years experience handling diverse matters. Practice areas include tort defense, business litigation, estate litigation, tort claims and civil rights defense, construction litigation, insurance coverage, employment litigation, shareholder disputes, and general litigation.

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