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New Jersey Supreme Court Throws Support behind Ongoing Storm Rule (with Limited Exceptions)

7/9/21

By: Josh Ferguson and Michelle Yee

The New Jersey Supreme Court has re-affirmed Defendants’ ability to use the Ongoing Storm Rule to support the defense of a snow/ice slip and fall claim.

In Pareja v. Princeton International Properties, 463 N.J. Super. 231, 235 (App. Div. 2020), Plaintiff was walking to work in the early morning hours when he slipped and fell on ice. It was precipitating that morning and was below freezing temperatures. Id. The Appellate Court initially reversed the summary judgment that was found in favor of the commercial property owner defendant and found that there are genuine issues of material fact as to whether the defendant acted reasonably under all circumstances by not doing anything to remove or prevent the black ice hazard during the precipitation.

The matter was recently appealed to the New Jersey Supreme Court on June 10, 2021, in Pareja v. Princeton International Properties, Inc., 2021 N.J. LEXIS 549 (2021). The court held 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.” Id. at 17-18. The exceptions include that: “[f]irst, commercial landowners may be liable if their actions increase the risk to pedestrians and invitees on their property. Second, a commercial landowner may be liable where there was a pre-existing risk on the premises before the storm.” Id.

In Pareja, the parties do not dispute that there was a wintry mix and that the temperature was below freezing. There was a dispute as to the location of the fall. Plaintiff argues that he fell at an isolated patch of icy condition while defendant argued that the condition was found in an area that was caused by ongoing freezing rain. The Supreme Court ultimately held that “[a]pplying 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.” Id. at 15. The court found that defendant did not owe Plaintiff a duty to clear the snow and ice during a storm, that there were no unusual circumstances that would create such duty, that defendant took no action to increase Plaintiff’s risk, and that the record shows that the ice on the sidewalk was not a pre-existing condition.

Originally, the common law provided no liability for landowners for the condition of a sidewalk and no duty to keep the sidewalk free of snow and ice. As time goes by, the law carves out more exceptions to impose liability on landowners to keep the sidewalks clear of snow and ice for pedestrians. Overall, Pareja provides a significant defense that bars Plaintiff from recovery in matters involving a slip and fall during an ongoing snow event. Yet, exceptions still apply to this Rule. Notably, landowners are not to increase the risk to pedestrians, and that landowners should ensure that there is no pre-existing risk on the premises before the storm. Regardless, commercial landowners should continue to reevaluate their contractual agreements with vendors for snow and ice removal to ensure that they address providing snow and ice removal to their properties during an ongoing snowstorm in order to protect them from any liability for snow and ice-related injuries.

If you have any questions, please contact Josh Ferguson at [email protected] and Michelle Yee at [email protected].