In an opinion published on April 9, 2020in Pareja v. Princeton International Properties, et al., the Appellate Division held that the ongoing storm defense asserted by defendants in snow and ice slip-and-fall cases does not apply in New Jersey. Under the ongoing storm rule, commercial landowners generally do not owe a duty to clear snow and ice from their property or the abutting sidewalks until the storm stops. The Appellate Division stated in Pareja that such a bright-line rule is inapplicable in New Jersey and held that a commercial property owner owes a duty to take reasonable steps to render public walkways abutting its property—covered by snow and ice—reasonably safe even when precipitation is falling. The Appellate Division stated that the duty to remove the foreseeable hazard of snow and ice cannot always be fulfilled by waiting to act until after a storm ends.
The Plaintiff in Pareja was a pedestrian that slipped and fell on black ice that accumulated on the defendant, a commercial landowner’s, driveway apron which abutted a public sidewalk. Plaintiff’s fall occurred during a minor ongoing storm. There was no snow or ice pre-treatment or removal done on the property prior to the fall or storm. The trial court granted summary judgment based upon the ongoing storm rule and Plaintiff appealed.
Prior to Pareja, unpublished New Jersey case law, which is not precedential or binding under New Jersey Court Rules, suggested that New Jersey would follow the ongoing storm rule and relieve property owners from liability for snow or ice-related fall accidents that occurred during ongoing snowstorms. SeeQuiles v. Hector, 2018 N.J. Super. Unpub. LEXIS 124 (App. Div. 2018). In Quiles v. Hector, the Appellate Division held that commercial landowners must act within a reasonable period of time after the landowner knows or has reason to know of a dangerous condition caused by accumulation of snow and ice, but, that the reasonable time within which the landowner had to act, does not begin until the storm ends. 2018 N.J. Super. LEXIS 124, *11. Quiles relied, in part, upon Mirza v. Filmore Corp., in which the New Jersey Supreme Court had stated that the “[t]he test is whether a reasonably prudent person, who knows or should have known of the condition, would have with a reasonable period of time thereafter caused the public sidewalk to be in a reasonably safe condition.” 92 N.J. 390, 395-396 (1983). The Appellate Division pointed out, however, that the Supreme Court did not mention the ongoing storm rule in Mirza at all, let alone adopt the rule. Rather, the Supreme Court stated in Mirza that a duty to act reasonably to remove or reduce the hazard would only be triggered when a reasonably prudent person knows or should have known of the condition. Id. at 395.
The Appellate Division concluded that imposition of a duty to exercise reasonable care during an ongoing storm is fair because landowners are well positioned to remove or reduce foreseeable and known snow and ice hazards. Accordingly, the Appellate Division 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.” That duty can only arise if the landowner has actual or constructive notice of the condition and fails to act in a reasonably prudent manner to remove or reduce the foreseeable hazard.
Notably, the Appellate Division considered various cases from other jurisdictions that have followed the ongoing storm rule, including but not limited to New York, Pennsylvania, Connecticut and Delaware, and expressly rejected the reasoning of those cases. The Appellate Division instead chose to follow suit with other jurisdictions that have already rejected the ongoing storm rule such as Maine, Kentucky, Indiana, Michigan, Nebraska and Washington.
The Court did note that its holding should not be misinterpreted to mean that the landowner will be liable for every fall that occurs during a storm; rather, the question as to whether the landowner acted reasonably is one for the jury. In considering whether the landowner acted reasonably the jury should consider the following factors:
Whether any action would be inexpedient or impractical;
The extent of the precipitation, including the amount of snow or ice accumulation;
The timing of the precipitation, whether it’s day or night;
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;
The minimal usage consequent on a “closed” facility in contrast to a normal work week;
The number of individuals expected to use the public sidewalk, premises, and the area in need of attention;
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; and
Any other relevant factors.
The holding in Pareja significantly increases the likelihood of liability for commercial landowners for falls that occur during ongoing storms. Following the decision, it will be exceedingly difficult for defendants to prevail at the summary judgment stage in similar snow and ice cases. In order to attempt to better avoid liability, property owners will need to assess their snow and ice pre-treatment and removal plans in light of the Pareja decision and the factors discussed above.
For more information on this ruling, or on the defense of premises liability matters in New Jersey generally, please contact the author, Derrick Grant at firstname.lastname@example.org.