NJ Supreme Court adopts the "Ongoing Storm Rule" with two notable exceptions

A recent decision by the Supreme Court of New Jersey has clarified the duty of commercial landowners to clear ice and snow from their property during a storm. In the recently published decision of Angel Alberto Pareja v. Princeton International Properties decided on June 10, 2021, the Supreme Court of New Jersey adopted the “Ongoing Storm Rule” –– a rule that commercial landowners do not have a duty to remove the accumulation of snow and ice until a reasonable time after the cessation of precipitation. The court further held that there are two exceptions that could impose a duty under this rule: if the property owner’s conduct increases the risk of injury, or if there is a danger that pre-exists the storm.

In Pareja, Plaintiff was walking to work in the early morning hours in January when he slipped on ice and fell. The sidewalk area on which he fell was located on property owned and managed by Princeton International Properties, Inc. (“Princeton International”). The incident occurred when Plaintiff parked his car across the street from the building where he worked and walked along the sidewalk where there was snow cleared from an earlier storm piled up along the edges of the sidewalk. There was a light rain falling that morning. Plaintiff’s path required him to walk across the driveway apron, a section of sidewalk that connects the driveway to the public road. This section of the sidewalk was owned by Princeton International.

Temperatures that morning were below freezing and Plaintiff was unable to see ice on the driveway apron due to the rain. The plaintiff stepped directly onto the ice, fell, and broke his hip.

The National Weather Service issued a Winter Weather Advisory the previous day, effective until the early morning when the incident occurred. Consistent meteorology reports submitted by each party showed that at the time of the Plaintiff’s fall there had been a wintry mix of light rain, freezing rain, and sleet that fell the night before. At or before the time of the Plaintiff’s fall, light pockets of freezing rain were falling and temperatures were at or below the freezing point. Princeton International’s maintenance supervisor and vice president both could not specifically recall whether the sidewalk where Plaintiff fell was pre-treated that day, which was the general practice of the company. Princeton International usually employed a third-party, Lowe’s Landscaping & Law Maintenance (“Lowe’s”), but the maintenance supervisor did not recall doing so that day.

The trial court granted both Lowe’s unopposed motion for summary judgment and Princeton International’s motion for summary judgment; the trial court finding in the latter that the Princeton International did not owe a duty to the Plaintiff. The Appellate Division reversed the trial court’s grant of summary judgment as to Princeton International finding there were genuine issues of material fact as to whether it had notice of the dangerous condition and whether Princeton International acted reasonably. In doing so, the Appellate Division rejected the Ongoing Storm Rule.

The New Jersey Supreme Court reversed the ruling of the Appellate Division and held: “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.” Id. at 15. The court stated that the premise of the Ongoing Storm Rule is that it is categorically inexpedient and impractical to remove or reduce hazards from snow and ice while precipitation is ongoing.

The court’s holding was subject to caveat that two unusual circumstances may present an exception to this rule. First, commercial landowners may be liable if their actions increase the risk to pedestrians and invitees on their property. For example, if a commercial landowner places vehicle parking so far distant from the business premises that it increases the risk of travel over treacherous, icy terrain. Second, commercial landowners may be liable where there is a pre-existing risk on the premises before the storm. The court used the example of pre-existing snow or ice from a previous storm to make this notion more concrete.

Takeaways

• The timeline of precipitation is critical to the investigation and evaluation of a premises liability action involving snow or ice. This information can be obtained in many ways:
  1. Statements from eyewitnesses;
  2. Contemporaneous reports prepared by EMTs, police officers, etc.;
  3. Photographs taken shortly after the incident; and
  4. Meteorological data.
• In addition to confirming the timeline of wintry precipitation, it is imperative to determine the exact time of the alleged fall in order to persuasively rely on the meteorological data.
• Confirm whether there were any recent storms prior to the subject storm in order to establish that there was no snow or ice on the ground from a previous storm.
• Determine whether the municipality where the incident occurred has an ordinance pertaining to snow removal. New Jersey Courts have placed a great deal of emphasis on local ordinances in premises liability cases involving snow and ice.