02.19.26
When the weather outside is frightful, certain property owners can now enjoy their fireplaces and hot cocoa a little longer before running for the salt and snow shovels.
In Pareja v. Princeton International Properties, 246 N.J. 546 (2021), a premises case where the plaintiff slipped and fell on ice while walking on a driveway apron owned and managed by the defendant, the New Jersey Supreme Court adopted the ongoing storm rule, which relieves a commercial property owner of the duty of clearing ice and snow from its premises until after the winter weather event has concluded. In Pareja, the fall occurred while the wintery precipitation was still falling. The plaintiff argued that the applicable duty was “reasonable care,” and that reasonable care in the form of pre-treating the driveway would have prevented the icy condition that caused his fall.
In a moment of pragmatism, the Supreme Court rejected the plaintiff’s argument and adopted the “ongoing storm rule.” The rule provides that “absent unusual circumstances, a commercial landowner’s duty to remove snow and ice hazards arises not during the storm, but rather within a reasonable time after the storm.” The holding considered that the duty of “reasonable care” “does not consider the size, resources, and ability of individual commercial landowners or recognize that what may be reasonable for larger commercial landowners may not be reasonable — or even possible — for smaller ones. While we trust juries to uphold their duties to evaluate reasonableness, we do not wish to submit every commercial landowner to litigation when it is not feasible to provide uniform, clear guidance as to what would be reasonable. We decline to impose a duty that cannot be adhered to by all commercial landowners. The alternative to the duty imposed by the Appellate Division is the ongoing storm rule. 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 the precipitation is ongoing.”
Finally, a nice clear, predictable, defense friendly rule, right? Not entirely.
The referenced “unusual circumstances” bring about the two exceptions to the rule. The first exception (which is really not an “exception” at all) involves the presence of a pre-existing risk or condition, such as an uncleared patch of ice from a prior weather event that was never properly treated. Thus, if someone could credibly make the case that they fell due to such a pre-existing condition, a question of fact as to the actual cause of the fall would likely preclude summary judgment, and the application of the defense would ultimately rest in the hands of the jury after the determination of fact.
The second exception provides that a commercial landowner may be liable if its actions increase the risk that a storm presents to pedestrians and invitees on their property, meaning that a landowner must avoid doing anything that would magnify the danger of the natural conditions caused by the storm.
Finally, the Court did not define what exactly is “a reasonable time” after the storm. Thus, in cases where the fall-down occurs after the winter weather has concluded, it is back in the hands of the courts and juries to tell us what is reasonable in each particular case.
Some good news for the defense is that the ongoing storm rule has been expansively applied in a series of unpublished Appellate Division cases.
In Hanna v. Woodland Community Association, 2022 N.J. Super. Unpub. LEXIS 2180, the Appellate Division held that the storm defense applied to falls occurring on private property owned by a condominium association, stating that condominium associations are held to the same premises liability standards as commercial landowners.
In Smith v. Costco Wholesale Corp., 2023 N.J. Super. Unpub. LEXIS 1112, the Appellate Division held that the defense applied to cases involving customer walkways on store owned private property. In Smith, a woman slipped and fell during an ongoing winter weather event while walking from the store exit to the parking lot. The court stated “there is no indication anywhere in the [Pareja] opinion that the Court intended to apply the ongoing storm rule only to public property, nor does logic or caselaw support such a conclusion.”
In McGrath v. Vezzosi, 2024 N.J. Super. Unpub. LEXIS 1675 (App. Div. 2024), the Appellate Division applied the defense and reasoning to a case where the fall occurred on private property, when a visitor of a tenant of a two-family rental home slipped on an icy staircase, stating (just as it did in Smith) “there is no indication anywhere in the Pareja opinion the Court intended to apply the ongoing storm rule only to public property, nor does logic or case law support such a conclusion.”
The ongoing storm rule promotes fairness by creating a more consistent, logical, and predictable rule; one that is fair to the public and property owners, and one that takes the guesswork out of predicting what a judge may do when asked to interpret “reasonable care” under 100 different sets of facts, only after a case has been litigated for years and at great expense.
Some practice pointers – If you are looking at a case where ongoing storm defense may apply, first establish the timing of the weather event compared to the time when the fall occurred. A weather expert is one way to do this but lay testimony may also be sufficient, especially if the plaintiff provides favorable testimony. Second, serve thorough and specific discovery demands and ask pointed questions at the plaintiff’s deposition, about what he/she believes caused the fall and all the specifics relating to the fall (exact location, visibility, familiarity with the area, perceptions at the time, etc.). Finally, expect the plaintiff to be crafty and attempt to circumvent the storm rule by making the case about something more than just the ice. (For example, “I slipped on ice but there was no handrail on the stairs to catch myself,” or “I slipped on the ice but the walkway was improperly pitched causing the ice to accumulate easier.”) Engineering experts can be key for addressing and hopefully unraveling any such comingled claims.
Make your best arguments and have some fun.
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