Reversing the Appellate Division, the Supreme Court Adopts the “Ongoing Storm Rule”

Pareja v. Princeton International Properties, ___ N.J. ___ (2021). This 5-2 decision addressed the “ongoing storm rule,” which Justice Fernandez-Vina’s majority opinion defined as a doctrine “under which a landowner does not have a duty to remove snow or ice from public walkways until a reasonable time after the cessation of precipitation.” In a decision discussed here, the Appellate Division rejected the ongoing storm rule in this case, where plaintiff fell on ice and injured himself on defendant’s property while “light rain and pockets of freezing rain were falling.” That ruling imposed a duty of care on commercial property owners and reversed a Law Division grant of summary judgment to the defense.

The Supreme Court agreed to review the case and reversed the Appellate Division. Joining Justice Fernandez-Vina’s majority opinion, which applied the de novo standard of review applicable to review of decisions on summary judgment, were Chief Justice Rabner and Justices LaVecchia, Patterson, and Solomon. Justice Albin wrote a dissenting opinion, in which Justice Pierre-Louis joined.

New Jersey has had a lengthy history of sidewalk liability litigation, much of which involved the effect of the elements. Justice Fernandez-Vina recounted much of that caselaw, while recognizing that none of those cases had “directly address[ed] the ongoing storm rule.” That is because those cases “discuss the imposition of a duty on commercial landowners to remove snow and ice only after the cessation of the hazardous precipitation; none opine on the imposition of a duty before that point.”

The majority rejected the Appellate Division’s imposition of a duty on property owners to “act in a reasonably prudent manner to remove or reduce the foreseeable hazard” regardless of whether precipitation is still falling. “[S]uch a duty 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.”

Instead, the majority endorsed the ongoing storm rule, whose premise, Justice Fernandez-Vina said, “is that it is categorically inexpedient and impractical to remove or reduce hazards from snow and ice while the precipitation is ongoing.” The “unreasonableness” of imposing a duty to remove snow and ice while a storm is ongoing was “consistent with our case law on sidewalk liability and snow removal.” The Court’s decision also lined up with the majority of courts elsewhere on this issue, Justice Fernandez-Vina stated, citing a number of cases, including from states that border New Jersey, which have “climates similar to our own.”

The majority cautioned, however, that “unusual circumstances may give rise to a duty” before a storm ends. “First, commercial landowners may be liable if their actions increase the risk to pedestrians and invitees on their property, for example, by creating ‘unusual circumstances’ where the defendant’s conduct ‘exacerbate[s] and increase[s] the risk’ of injury to the plaintiff” (citing a Supreme Court of Rhode Island case). “Second, a commercial landowner may be liable where there was a pre-existing risk on the premises before the storm. For example, if a commercial landowner failed to remove or reduce a pre-existing risk on the property, including the duty to remove snow from a previous storm that has since concluded, he may be liable for an injury during a later ongoing storm.” It was not clear whether those are the only two “unusual circumstances” that will defeat the ongoing storm rule.

Finally, Justice Fernandez-Vina carefully stated that the Court’s decision “does not preclude a jury from hearing questions of fact such as, but not limited to, when the storm concluded or whether the accumulation of snow or ice was from a previous storm.” Together with the “unusual circumstances” caveat, the majority opinion is thus not necessarily the bright line rule that it might otherwise appear to be.

The dissenters noted that those who work in building on commercially-owned properties, and others who must walk on the sidewalks of those buildings while light precipitation is still falling, will slip, fall, and injure themselves, but under the majority’s decision “the profit-making commercial landowner can choose to do nothing and will face no consequences.” It would be easy, the dissenters said, to spread salt on the sidewalks before a storm ends, just as is done on highways.

The dissent rejected the majority’s view that it is “categorically inexpedient” to take action while precipitation is still falling. “Is it really inexpedient and impractical to remove or reduce hazards from snow and ice while the precipitation is ongoing’ if there is only a light dusting of snow or a light falling of freezing rain? Under a reasonableness analysis, circumstances matter–the type of winter weather event matters. It is not a futile undertaking for commercial landowners exercising ordinary and reasonable care to protect their tenants, customers, or the general public if there is precipitation still falling after a minor snowfall or ice storm. Although snow removal would be impracticable during an ongoing blizzard, the same could not be said if there were an inch or two of snow and continuing light flurries, and the landowner could render the sidewalk safe with little effort or expense.”

The dissenters relied on a number of cases elsewhere that have rejected the ongoing storm rule. They also criticized the majority’s exception for “actions that increase the risk” to pedestrians and invitees. In the dissenters’ view, that exception “tells commercial landowners that they are exposed to liability only if they act. It thus is likely to encourage landowners to do nothing.”

Ultimately, the dissenters said, “[t]he Appellate Division got it right in rejecting the ongoing storm rule as inconsistent with this Court’s jurisprudence. A commercial landowner is expected to do only what is prudent and reasonable, not what is ‘inexpedient or impractical.’ Pareja, 463 N.J. 251-52. The duty of ordinary care merely requires “a commercial landowner to act in a reasonably prudent manner under all circumstances.”

The dissent’s perspective appears to be the better one. We rely on juries to make decisions as to the reasonableness of all sorts of actions and inactions by parties in tort cases. Many jurors themselves decide whether and when to clear their own driveways, walkways, and other surfaces from snow and ice. They certainly are capable of assessing the reasonableness of commercial landowners in doing so or not.

It may be, however, that the exceptions to the ongoing storm rule announced by the majority will render that “rule” more of a presumption than a rule. Time will tell. No doubt the sidewalk wars, which that date back to 1926 as the majority recounted, will continue.