A recent decision from the Appellate Court rejected a defendant’s plea to recognize the ongoing storm defense accepted by many of New Jersey’s neighboring states. The ongoing storm rule relieves a commercial landowner from any obligation to render its property safe while sleet/snow is falling because it would be both inexpedient and impractical to the commercial landowner.
In this case, a commercial landowner contracted a landscaping company to perform snow and ice removal at the property. Pareja v. Princeton Int'l Props., 2020 N.J. Super. LEXIS 41. Defendant’s property consisted of a two-floor mixed residential and commercial building as well as a paved parking lot and a concrete driveway apron. Weather conditions had caused black ice to form on the sloped apron, which caused plaintiff to slip and fall as he walked into the building for work.
Defendants presented a meteorological expert who stated that three winter storms had occurred within a six-day period prior to the plaintiff’s accident in support of a motion for summary judgment. Each storm was a mix of freezing rain and sleet. Defendant’s expert explained that any pre-icing treatment would not have been practicable because both salt and sand would not have been effective to treat the areas during these storms. Further on the day of plaintiff’s fall, the temperature was thirty-two degrees, the sky was overcast, and the wind was blowing five to ten miles per hour. The court accepted the evidence proposed by defendants, but remained unconvinced.
The court then analyzed other jurisdictions that have both accepted and rejected the ongoing storm defense and their justifications for doing so. The Court especially was convinced by the opinion of the Supreme Judicial Court of Maine in Budzko v. One City Center Associates Ltd. Partnership, 2001 ME 37, 767 A.2d 310, 314-15 (Me. 2001). The Court in Budzco held that “[b]usiness owners have a duty to reasonably respond to foreseeable dangers and keep the premises reasonably safe when invitees may be anticipated to enter or leave the premises during a winter storm.” Id. Slippery conditions resulting from snow and/or ice storm are foreseeable and thus steps should be taken to prevent injuries occurring to persons even while the weather event is occurring.
The Court ultimately held that “a 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.” Id. Further, the Court stated that the commercial landowner’s liability may arise “only if, after actual or constructive notice, it fails to act in a reasonably prudent manner to remove or reduce the foreseeable hazard.” Id. This ruling does not impose absolute liability upon the commercial landowner, but instead adds evidence of an ongoing storm as a factor to be considered by the jury at trial
This serves as a warning to commercial landowners to take steps as to ensure that their premises are free of hazardous conditions. Further, it will demand snow removal contractors to patrol their assigned properties more closely even during an ongoing storm. Many external maintenance contracts have conditions for the contractor to act as to snow height or freezing conditions. It may prove effective to include monitoring conditions to prevent the formation of black ice. The key factor is what the jury’s impression at trial, and adding more preventative measures may tip the scales to a more favorable verdict.