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Snow In Progress Defense Upheld By the Appellate Division

By on May 3, 2019 in Negligence with 0 Comments

Plaintiff, Janet Dixon, while leaving work, slipped and fell on a sidewalk due to snow and ice.  It was undisputed that she fell during a snow storm.  In Dixon v. HC Equities Associates, 2019 N.J. Super. Unpub. LEXIS 1005 (App. Div. May 2, 2019), the issue was whether the defendant property owner was liable due to the failure to clear the ice and snow from the walkway.

Plaintiff, who was a Senior Probation Officer, left work at 7:00 p.m.  As she was walking around the building to her vehicle, she slipped and fell.  She testified that it had started snowing earlier that day while she was at work and was still snowing when she left.  As she was walking, she assumed that she slipped on ice under the snow. She fractured her left hip and underwent a left hip replacement as a result of her fall.

Plaintiff sued the defendant property owner for negligence.  The defendant moved for a dismissal via summary judgment, arguing that there was no breach of duty because the plaintiff fell on snow while it was snowing and there was no duty to remove the snow until a reasonable time after the snow stopped falling.  The trial judge agreed with that argument and granted summary judgment.

The plaintiff appealed, arguing that there were material factual disputes that should have precluded summary judgment in favor of the defendant.  The Appellate Division, however, found that based upon the undisputed facts that it was snowing when the plaintiff arrived for work and when she left, “the defendant was not obligated to remove snow and ice until the precipitation stopped and it had a reasonable time to remove the snow and ice.”  The Court found that there was no duty for a commercial landowner to maintain sidewalks free of ice and snow until a reasonable time after a storm has ended.

The plaintiff argued that prior case law should be distinguishable because the plaintiff was required to stay at work until 7:00 p.m.  The trial judge did not accept that argument, finding that the plaintiff could have left at any time.  The Appellate Division noted that there was no distinction between voluntarily being on a premises versus working when it comes to the issue of snow removal.

Further, the plaintiff argued that it would be reasonable to require the defendant superintendent to shovel, salt or sand the sidewalk, knowing that the probation officers were required to work late some evenings.  The plaintiff argued that the superintendent should have at least shoveled a little path to get to the parking lot.  The Appellate Division noted that there was no evidence provided as to whether or not the superintendent or anyone else had salted or sanded the sidewalk prior to the plaintiff’s fall because it was irrelevant due to the storm being in progress and no duty was owed by defendant.  The Appellate Division rejected the plaintiff’s attempt to impose a duty on a commercial landowner who employs a live in superintendent to clear sidewalks of ice and snow during an ongoing snow storm.            

Further, the Appellate Division noted that there was a municipal code in Elizabeth, where the accident occurred, which required an owner to remove snow and ice within twelve hours of daylight after precipitation had ceased.  Pursuant to this ordinance, the defendant’s duty would not have arisen until the following morning.  While municipal codes are not binding on whether a legal duty existed, the Court did find that they could be instructive as to whether a defendant acted reasonably.  Because the undisputed material fact remained that it was snowing and defendant was afforded a reasonable period of time to remove the snow and ice, the Appellate Division affirmed the trial court decision, dismissing the lawsuit.

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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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