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New Jersey Appellate Division Rejects Storm In Progress Defense

By on April 13, 2020 in Negligence with 0 Comments

In a published decision involving a slip and fall accident on a public sidewalk due to black ice, the Appellate Division rejected the ongoing-storm rule as a defense (aka the Storm in Progress rule). Instead, in Pareja v. Princeton International Properties, 2020 N.J. Super. LEXIS 41 (App. Div. Apr. 9, 2020), the Court held that a commercial property owner has the duty of reasonable care to remove or reduce known foreseeable snow or ice hazards on public sidewalks abutting its property while precipitation is falling.

This accident occurred on a public sidewalk adjoining a commercial property consisting of two offices on the first floor, two apartments on the second and third floors, and a paved parking lot with a concrete driveway apron. The accident occurred at 7:50 am on a Monday, January 12, and, hence, it could be assumed that businesses were open, residents living in the building were coming and going, and pedestrians were using the sidewalk.

There was no snow or ice pre-treatment or removal on the date in question at the property. Due to the weather, black ice formed on the sloped apron, which caused plaintiff to slip on his way to work, suffering a serious injury.

It had snowed on the days prior to the accident. Prior to that morning, there was a weather advisory that there would be a mix of snow and sleet accumulations of about one inch, as well as trace amounts of ice, between 1:00 am and 10:00 am on January 12. Further, the advisory warned that untreated surfaces might become slippery due to the precipitation.

Indeed, per the plaintiff’s weather expert, there was some freezing rain and sleet during the night and a mix of sleet, rain, and freezing rain that morning at the time of the accident. Plaintiff testified that when he fell, there was drizzling sleet. It was reasonably inferred that the defendant property owner knew of the advisory’s warning that untreated surfaces might become slippery. Plaintiff’s liability expert opined that pre-treating the slippery conditions with anti-icing and deicing materials would have reduced the hazard.

The trial court granted the defendant property owner’s motion for summary judgment based upon the application of the ongoing-storm rule. The trial court found that the defendant property owner had no duty to remove or reduce the ice hazard until after the precipitation ended.

The Appellate Division, in a lengthy opining, soundly rejected the use of this rule. The Court noted that such a “bright-line rule, however, ignores situations when it is reasonable for a commercial landowner to remove or reduce foreseeable and known snow or ice hazards.”

The Court held 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.” Further, the Court found that this duty “cannot be fulfilled by always waiting to act until a storm ends, regardless of the risk imposed to invitees and pedestrians.”  The liability of the commercial landowner “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.”

The Appellate Division reviewed not only the published case law in New Jersey but, comprehensively reviewed the case law in other jurisdictions, which either rejected or supported the use of the ongoing-storm rule as a defense. The Court disagreed that there was any case law in New Jersey that supported its use. And, while not binding, the Court found that the law of other jurisdictions rejecting the application of this rule were persuasive.

The Appellate Division noted that the premise of this rule is that it would be “inexpedient and impractical to attempt reasonable efforts to remove or reduce known foreseeable snow or ice hazards while precipitation is falling.” The Court disagreed with this premise, noting that “[s]ometimes it is impractical; other times it is not.”  But, applying this doctrine, would usurp the jury’s consideration of reasonableness and would “suspend a property owner’s general duty to exercise reasonable care” as to snow and ice hazards while precipitation is falling.

The Court made it clear that it was not imposing strict liability upon commercial landowners for every slip and fall during the course of a storm or that such owners were responsible to clear every inch of their property during an all day storm. But, it should be a jury question as to whether the commercial landowner acted reasonably to remove snow and ice hazards.

The Court held 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, even when precipitation is falling.” Further, the Court ruled “[t]that the commercial landowner’s liability may arise only, after actual or constructive notice, it fails to act in a reasonably prudent manner to remove or reduce the foreseeable hazard.” Finally, the Court held that “reasonableness” is generally a jury question.

Hence, the Appellate Division reversed the trial court’s decision granting summary judgment to the defendant property owner. The Court found that there were questions of fact as to the defendant’s knowledge of the anticipated icy conditions and whether the defendant acted reasonably under the circumstances by not acting in any way to prevent, remove, or reduce hazards associated with the precipitation. It would be a jury question as to whether the defendant acted reasonably under all the circumstances by failing to take any precautionary measures and waiting for the precipitation to end.

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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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