In a Win for Commercial Defendants and Their Insurers, the New Jersey Appellate Court Declines to Limit the “Ongoing Storm Rule” to Only Public Property


The New Jersey Appellate Division has recently confirmed that the “ongoing storm rule” established in Pareja v. Princeton International Properties, 246 N.J. 546 (2021) applies to privately owned commercial properties, rejecting the argument that the rule is limited to just public walkways. Thus, commercial landowners owe no duty to remove the accumulation of snow and ice in both public and private areas, until the conclusion of a storm, subject to the two previously established exceptions: 1) if the owner’s conduct increases the risk; or 2) the danger is pre-existing. 

In Carol Smith v. COSTCO Wholesale Corporation, et al, Docket No. A-2592-21, N.J. Super. Ct. App. Div. (July 3, 2023), the plaintiff alleged that she slipped and fell on snow outside of a COSTO store and sustained injuries.  On the day of the incident, the Governor had declared a state of emergency, with snow falling from the early morning until the late evening. The plaintiff drove to the store and went inside to shop.  According to her receipt, she left the store at 2:13pm, in the middle of the storm. She fell just outside of the doorway, between the door and a set of bollards, and there were several inches of snow on the ground in that area. 

Defendants moved for summary judgment based upon the “ongoing storm rule.” In response, the plaintiff argued that the rule, established by the Supreme Court in Pareja, only applies to public areas, not private property. She based this argument solely on the Court’s statement that, “[f]or the first time, this Court considers the adoption of the ongoing storm rule, under which a landowner does not have a duty to remove snow or ice from public walkways…” Pareja at 548 (emphasis added). In granting summary judgment, the trial court rejected this argument and found that it is immaterial whether the area was public or private. The trial court reasoned that limiting the rule as urged by the plaintiff would run contrary to its purpose as established in Pareja. Therefore, because it was undisputed that the storm was ongoing, the defendants did not owe a duty of care to remove the snow until a reasonable time after the storm had concluded. 

The Appellate Court agreed, reiterating that Pareja unambiguously held that “commercial landowners do not have a duty to remove the accumulation of snow and ice until the conclusion of the storm.” Pareja at 558. The one sentence in Pareja relied upon by the plaintiff was merely a recitation of the issue presented, not the Court’s holding, and there is no indication in the Pareja decision that the Court intended to limit the “ongoing storm rule” in the way the plaintiff suggested.  The Court reasoned that the task of clearing ongoing snow from private property is just as burdensome and impossible on public property, and therefore the plaintiff’s argument made a distinction without a difference. As a result, because the rule applied, and the plaintiff was unable to establish that either of the exceptions to the rule applied, the trial court’s grant of summary judgment was affirmed. The plaintiff’s case was dismissed. 

Comment: While plaintiffs will continue to look for loopholes and attempt to encourage the courts to establish additional exceptions, the Smith Court definitively declined to do so. Instead, the Court explicitly reaffirmed the broad applicability of the “ongoing storm rule” to all commercial property, whether the area in question is considered a “public walkway” or “private property.” Thus, the “ongoing storm rule” remains a valid defense for commercial property owners. However, property owners will still be faced with the two exceptions to the rule: 1) if the owner’s conduct increases the risk; or 2) the danger is pre-existing, such as where the owner failed to clear snow and ice from a prior storm. While the language of Pareja focuses on landowners, the grant of summary judgment in favor of both Costco and their snow removal company suggests that the rule applies to defendants who might owe a duty to maintain a commercial property, regardless of ownership, though this is not explicitly addressed. 

The plaintiff in Smith may appeal the Appellate Court’s decision to the New Jersey Supreme Court, which will have the final say on this issue. 

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