New Jersey (April 22, 2020) - A recent decision by New Jersey's Appellate Division has expanded the duties of a commercial landowner to remediate a weather-related, dangerous condition. In doing so, the opinion, written by the Presiding Judge, dismantled what it deemed to be misplaced reliance on nearly 100 years of jurisprudence.
In Pareja v. Princeton International Properties, A-2111-18T3, approved for publication March 9, 2020, the court openly mocked defense counsel's characterization of the "ongoing storm rule" as "clear and well-settled law." While we agree that this issue has been trending toward a revised view on the duties of a landowner during a storm, the ruling belies the history of the ongoing storm rule.
To be clear, the ongoing storm rule was hardly "clear and well settled law." Indeed, the Pareja opinion comes on the heels of a dissent by Justice Albin in Dixon v. HC Equities Assoc., L.P., (Feb. 13, 2020) (slip op. at 2), wherein the justice criticized the Appellate Division for misinterpreting the holdings of "at least three" recent decisions to mean that the duty of a commercial landowner to clear snow and ice does not accrue until precipitation ceases. It is, thus, simple to track the Appellate Division's decision to tee up the issue in this matter. Justice Albin provided a roadmap for doing so.
The facts in Pareja are straightforward. The accident occurred in the midst of a series of three storms over six days. The most recent of these consisted of light snow and heavy sleet over the course of about 36 hours, with subfreezing temperatures throughout. The commercial landowner and its contractor had made no effort to remediate the issue of ice accumulation on a sloped apron of the property. The plaintiff fell at approximately 8 a.m. The court presumed from testimony that the property owner knew of the various storm warnings and that its contractor was aware of the slippery conditions at the time of the fall.
The court worked through the cases cited by both the defendant, and presumably by the Appellate Division in other cases referenced by Justice Albin, to come to a clear statement that the accrual of a duty to clear snow and ice that is imposed on a commercial landowner is subject to a reasonableness standard, not a bright line rule regarding the end of a precipitation event. Litigators espousing a bright line rule have relied heavily on a case from nearly a century ago: Bodine v. Goerke Co., 102 N.J.L. 642 (E. & A. 1926).
In Bodine, a storeowner had allowed snow to accumulate near the doorway of the store, resulting in injury to the plaintiff. At the time of the injury, it was still snowing. The Court of Errors and Appeals held that negligence could not be "reasonably inferred from the testimony." Id. at 642. Many in the litigation community have relied on Bodine to mean that if negligence could not be inferred from that situation, then the "rule" is that the duty does not accrue until the precipitation stops. Id. at 643, citing Cooper v. Reinhardt, 91 N.J.L. 402 (Sup. Ct. 1918).
The Pareja court noted that the issue had been raised since the Bodine matter was decided, and that no bright-line rule had been established. Indeed, the most oft-cited cases for a commercial landowner's duties in relation to snow and ice removal are Stewart v. 104 Wallace Street, Inc., 87 N.J. 146, 157 (1981) and Mirza v. Filmore Corp., 92 N.J. 390 (1983). Stewart outlined a commercial landowner's duty to clear the property of dangerous conditions, and Mirza applied the duty to snow and ice conditions.
In its opinion in Pareja, the Appellate Division curiously included the following passage from Mirza:
[M]aintenance of a public sidewalk in a reasonably good condition may require removal of snow or ice or reduction of the risk, depending upon the circumstances. The test is whether a reasonably prudent person, who knows or should have known of the condition, would have within a reasonable period of time thereafter caused the public sidewalk to be in reasonably safe condition. Mirza at 395-96 (emphasis added).
The court included this passage to support the proposition that Mirza did not explicitly abide by the ongoing storm rule. In doing so, however, it included the portion of the Mirza opinion that many have relied upon: "within a reasonable time thereafter."
Finally, the court relied on Moore v. Schering Plough, Inc., 328 N.J. Super. 300 (App. Div. 2000). While Moore did, in fact, hold that a commercial landowner had a duty to clear snow and ice during a storm, it is easily distinguishable. The clear holding in Moore is that a commercial landowner cannot refrain from snow and ice removal on private property, and then simultaneously send an employee or independent contractor into that condition and be relieved of liability for doing so because snow was still falling.
After completing its analysis of New Jersey's treatment of the ongoing storm rule, the court reviewed other states"" treatment of the rule. The states are, predictably, split on the topic. In the end, the Pareja court decided to terminate the rule. "We hold that a commercial 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." Pareja, slip op. at 27.
While the road to this decision was curious, the decision itself stands on solid ground. The courts in New Jersey and elsewhere have trended against most bright-line rules. The Pareja Court made clear that there are circumstances where a commercial landowner's duty will not have accrued, depending upon the weather conditions. "Sometimes it is impractical; other times it is not." Id., slip op. at 20-21. The Court further explained that "[t]he 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., slip op. at 27.
For now, the ongoing storm rule is eliminated. We will see if the Pareja decision, which followed a dissenting opinion by a single justice fairly closely, will survive the scrutiny of the entire Supreme Court of New Jersey. The decision is well-reasoned. Although it expands the potential liability of commercial landowners, it also eliminates the argument over when a storm, particularly one that lasts several days, actually ends. Commercial landowners and insurers should presume that the Pareja opinion will stand as a statement of New Jersey law for the foreseeable future.
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