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New Jersey Supreme Court Adopts “Ongoing Storm” Rule with Limited Exceptions

By on June 18, 2021 in Negligence with 0 Comments

In a June 10, 2021 opinion written in Pareja v. Princeton International Properties, Inc., 2021 N.J. LEXIS 549 (2021), the New Jersey Supreme Court adopted the “Ongoing Storm” Rule, which should be very useful to the defense bar in pursuing Summary Judgment as to claims arising out of slip and fall events that take place during an ongoing winter storm.

            In short, the Court held that:

“Considering our case law and balancing the concerns of commercial landowners with the need to provide redress for injured plaintiffs, we state today that, under the ongoing storm rule, commercial landowners do not have a duty to remove the accumulation of ice until the conclusion of the storm, but that unusual circumstances may give rise to a duty before then.”  (slip op. at 17-18).

The Supreme Court then specifies two (2) such circumstances in which liability might still attach.

The first involves situations where the commercial landowner by its actions increases the risk to pedestrians and invitees on their property, by creating “unusual circumstances” where the Defendant’s conduct “exacerbates and increases the risk” of injury to the Plaintiff.

The second is where there was a pre-existing risk on the premises before the storm, such as where the landowner failed to remove or reduce snow from a previous storm.  (slip op. at 18).

            Justice Fernandez-Vina framed the issue in this matter as follows:

“This case calls on the Court to determine whether commercial landowners owe a duty to clear snow and ice from their property during a storm. For the first time, this Court considers the adoption of the ongoing storm rule, under which a landowner does not have a duty to remove snow or ice from public walkways until a reasonable time after the cessation of precipitation.”  (slip op. at 2).

The factual background is straightforward. Plaintiff was walking to work in the early morning hours on a sidewalk on property owned and managed by Defendant Princeton International Properties, Inc. (hereafter “Princeton”).  It had been “precipitating” that morning in below freezing temperatures.

Defendant Princeton filed a Motion for Summary Judgment, arguing that the “Ongoing Storm” Rule applied and that it therefore owed no duty to maintain its sidewalks during the precipitation. The Trial Court granted the Motion for Summary Judgment. However, the Appellate Division reversed, rejecting the “Ongoing Storm” Rule, and holding that Princeton had a duty of reasonable care to maintain the sidewalk even when precipitation was falling.  Pareja v. Princeton International Properties, Inc., 463 N.J. Super. 231, 235 (App. Div. 2020).

The parties did not dispute that there had been a “wintry mix” of precipitation on the morning of Plaintiff’s fall.  However, there was a dispute as to the location of the ice upon which Plaintiff fell. 

Plaintiff asserted that the icy condition was isolated, while Defendant Princeton asserted that the icy condition was found “area-wide as a product of the ongoing freezing rain.”

While Defendant Princeton’s representatives could not specifically recall whether the sidewalks had been pretreated that day, given that the property contained two apartments and two business offices, that would generally have been the case.

Defendant Princeton retained Lowe’s Landscaping & Lawn Maintenance, LLC (hereafter “Lowe’s) for snow and ice removal services, including plowing, snow removal, salting and pre-treatment.  Lowe’s was brought in initially as a Third Party Defendant, but Plaintiff amended his Complaint to name Lowe’s as a Defendant.

Discovery disclosed that Defendant Princeton’s representatives again did not recall specifically informing Lowe’s about the prevailing conditions. A “Winter Weather Advisory” was in effect, having been issued more than 24 hours before the accident.

Plaintiff through his expert argued that Defendant Princeton “knew or should have known” of the conditions, and that there was a “hazardous condition” on the day of the accident due to untreated ice on the surface, which Defendant Princeton failed to remediate.

Plaintiff’s expert also addressed a local ordinance, requiring landowners to remove snow and ice from sidewalks within 24 hours of the conclusion of the precipitation.

Before the Supreme Court, Defendant Princeton argued that in prior precedent the Court had expressed the principles embodied by the “Ongoing Storm” Rule, and that the Appellate Division “fundamentally misconstrued” the Rule as arbitrary, when, in fact, the Rule “reflects the common sense recognition that compelling landowners to try to prevent the accumulation of snow when ice on commercial sidewalks during the pendency of a winter weather event would be practical and inefficient.”  (slip op. at 9).

Amicus curiae New Jersey Defense Association joined in Defendant Princeton’s arguments, asserting that adopting the Rule would relieve commercial landowners of the duty to undertake “Sisyphean” snow and ice removal efforts during a storm, potentially hazardous in and of themselves and also potentially futile. Further, NJDA asserts that the Rule adequately serves tort principles because, while a storm is ongoing, pedestrians are on notice of dangerous conditions.  (slip op. at 10).

Plaintiff countered that the Appellate Division’s rejection of the Rule properly focused on the reasonableness of the landowner’s actions.  Plaintiff’s arguments were joined by amicus curiae New Jersey Association for Justice.  (slip op. at 10-11).

The Supreme Court then began with a general overview of precedent as to sidewalk liability and the landowner’s duty to remove snow and ice.  Notably, in Mirza v. Filmore Corp., 92 N.J. 390, 400 (1983), the Court had held that “maintenance of the public sidewalk in a reasonably good condition may require removal of snow or ice or reduction of the risk, depending upon the circumstances.”  Id. at 395. More recently, in Qian v. Toll Brothers, Inc., 223 N.J. 124, 136 (2015), the Court held that a Homeowners’ Association and its management company had a duty to clear snow and ice from the private sidewalks abutting its land.

Very significantly, however, all of these cases “discuss the imposition of a duty on commercial landowners to remove snow and ice only after the secession of the hazardous precipitation; none opine on the imposition of a duty before that point, which is the crux of this appeal.”  (slip op. at 15).

Thus, the Supreme Court held that “Applying our precedent to a situation where a storm is ongoing, we hold that commercial landowners do not have the absolute duty, and the impossible burden, to keep sidewalks on their property free from snow or ice during an ongoing storm. We find instead that the limiting principles established in our precedent warrant the adoption of the ongoing storm rule.”  (slip op. at 15).

Therefore, applying the Rule to the facts of this matter, the Supreme Court held that Defendant Princeton did not owe Plaintiff a duty to clear the snow and ice during the storm, and there were no unusual circumstances that would otherwise create such a duty.

The Supreme Court observed that “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. We agree. Our precedent makes clear, and we reiterate today, that absent unusual circumstances, a commercial landowner’s duty to remove snow and ice hazards arises not during the storm, but rather within a reasonable time after the storm.”  (slip op. at 17).

Indeed, the Supreme Court observed that the adoption of the “Ongoing Storm” Rule is consistent with the majority rule, in that 10 other states have adopted the same. These include neighboring New York, Pennsylvania and Delaware, as well as nearby Connecticut, each of which the Court notes have climates similar to that of New Jersey.

However, as indicated above, the Supreme Court did indicate that liability might still attach to a commercial landowner if the landowner’s actions create “unusual circumstances,” where the Defendant’s conduct “exacerbates and increases the risk” of injury, or where there was a pre-existing risk on the premises before the storm, such as due to failure to remove or reduce snow from a previous storm.  (slip op. at 18).

In dissent, Justice Albin emphasizes that the majority’s exception to the Rule that imposes liability if the landlord’s actions increase the risk to individuals on its property will, in fact, encourage landowners to do nothing, in that they would then be exposed to liability only if they act.

Overall, therefore, Pareja is likely to prove to be a significant opinion which is regularly cited by the defense bar in Motions for Summary Judgment in matters involving slip and fall events that occurred during an ongoing weather event.

However, defense counsel and insureds would do well to keep in mind the necessity for the commercial landowner not to increase any risk to pedestrians, and particularly to ensure that proper remediation of snow and ice is completed within a reasonable time after the conclusion of the storm.

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About the Author

About the Author:

Mr. Carlson’s practice concentrates on the defense of New Jersey and Pennsylvania personal injury matters on behalf of insurance companies, self-insured entities and third-party administrators in the fields of premises liability, transportation law, and construction claims. He has also handled commercial, insurance coverage, fire loss, trucking accident, Dram Shop, subrogation and first party “Personal Injury Protection ” (PIP) matters, as well as Hazmat rapid response services to trucking accidents.

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