.
Casualty

Defense Digest

Redefining the Scope of the Ongoing Storm Rule: What Recent New Jersey Appellate Division Decisions Tell Us About the Future of the Doctrine

Defense Digest, Vol. 29, No. 2, June 2023

June 1, 2023

Key Points:

  • The New Jersey Ongoing Storm Rule may be a defense for contractors of commercial landowners in negligence actions.
  • Snow and ice removal contractors should consider amending their contractual agreements with commercial landowners to protect themselves from liability during an ongoing storm.
  • Contractors should be aware of the exceptions announced in the Pareja holding.

The landscape of premises liability law is evolving in New Jersey. For example, the Ongoing Storm Rule, adopted in 2021, was recently interpreted in two unpublished Appellate Division decisions that provide clarity on the direction the rule is headed. Relevant to this article, those decisions extend the rule to protect snow and ice removal contractors who service a property during an ongoing storm. This is important as our clients provide insurance to those types of contractors. Moving forward, those insureds will be able to avail themselves of this defense. It also provides an opportunity for those insureds to review their existing contracts with commercial landowners and consider amending the terms to shield themselves from liability. I explain below. 

By way of brief background, the New Jersey Supreme Court adopted the Ongoing Storm Rule in Pareja v. Princeton Int’l Prop., LLC, 252 A.3d 184 (N.J. 2021). On its face, the rule immunizes “commercial landowners” from negligence if they fail to remove an accumulation of snow and ice during an ongoing storm. This rule is premised on the pragmatic idea that removing snow and ice during an ongoing storm is an “impossible burden” and “categorically inexpedient and impractical.” The court further held that there are two exceptions that could impose a duty under this rule: (1) if the property owner’s conduct increases the risk of injury, or (2) if there is a danger that pre-exists the storm. 

Hanna v. Woodland Community Association, 2022 WL 16984707 (N.J. Super. Ct. App. Div. Nov. 17, 2022) and Sarro v. Artic Management, LLC, et al., 2023 WL 2566062 (N.J. Super. Ct. App. Div. March 20, 2023) are the cases in which the New Jersey Appellate Division interpreted this rule to immunize snow and ice removal contractors from negligence. The facts in Hanna and Sarro mirror Pareja. In both cases, the plaintiffs fell during a storm and sustained injuries. In both cases, the commercial landowners contracted with snow removal contractors to service their properties. In both cases, the Appellate Division affirmed summary judgment in favor of the snow removal contractors based on the “Ongoing Storm Rule.” 

In Hanna, the Appellate Division concluded: “Limiting the ongoing storm rule to commercial landowners but not their contracted snow removal service providers would nullify the import of the Supreme Court’s ruling.” 

In Sarro, the Appellate Division noted: “The court in Pareja recognized removing snow during an ongoing storm is an ‘impossible burden’ and ‘categorically inexpedient and impractical.’ Imposing a requirement on a contractor to remove accumulated ice and snow would likewise be ‘unreasonable.’ Moreover, it would impose a legal duty impossible to satisfy.” 

Thus, Pareja’s progeny give snow and ice removal contractors a defense for alleged negligence during an ongoing storm. Any doubts based on the argument that the New Jersey Supreme Court in Pareja specifically narrowed its holding to only apply to “commercial landowners” does not take into account the procedural context of Pareja, namely, the snow removal contractor in that case was already granted summary judgment at a lower level. As such, the Supreme Court did not have the opportunity to address whether the rule extended to snow and ice removal contractors as the contractor was no longer in the case by the time it reached the highest court. Fortunately, the opportunity presented itself in Hanna and Sarro, and doubt can, therefore, be cast aside.

Importantly, a plaintiff may try to circumvent these decisions by arguing that any contract between the contractor and the landowner creates a separate contractual duty to remediate an ongoing storm as opposed to the common law duty discussed above. Therefore, to combat these attempts, contractors should consider amending their agreements to include language that is consistent with the above-discussed rulings. An example would be: “The contractor does not assume any responsibility to perform services greater than that which is the common law responsibility of the landowner.” While not the silver bullet to pierce through any claim based on negligence, this sort of language allows the contractor to argue they are not under a separate contractual duty. In other words, if there is an ongoing storm, the contractor would not be responsible for remediation services until a reasonable time after the cessation of the storm. As such, it may be advantageous for contractors to review their contracts and consider the appropriate changes.

There are several takeaways insurers and insureds should be aware of as a result of these decisions. First, Hanna and Sarro provide support for the premise that snow and ice removal contractors are under the umbrella of protection of the “Ongoing Storm Rule.” Second, snow removal contractors need to consider the exceptions that may still apply and not create any risk of harm prior to the start of a storm, such as failing to remediate left-over ice from a previous storm. Third, a plaintiff may try to circumvent those decisions, but with the right contractual language, contractors and their insurance carriers can preempt any such attempt. Contractors and litigators can expect further refinement of this doctrine, assuming we ever have a snowy winter again. 


 

 

Defense Digest, Vol. 29, No. 2, June 2023, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2023 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.

Firm Highlights

Thought Leadership

WCJ Improperly Refused to Conduct C&R Hearing and Erroneously Required Settlement of All Pending Petitions

In this case, the claimant sustained injuries in the course and scope of her employment as a registered nurse. The employer acknowledged the injury by a Notice of Compensation Payable (NCP).  Subsequently, a Workers’ Compensation Judge (WCJ) expanded the description of injury. The employer then filed a Termination Petition, alleging the claimant was fully recovered from the injuries. Providers filed Utilization Review (UR) Petitions, challenging UR determinations finding their chiropractic treatment to be not reasonable and necessary. A settlement of the claim was eventually reached, and the employer filed a Petition to Seek Approval of a Compromise and Release (C&R) Agreement. The C&R outlined that the agreement fully resolved all future workers’ compensation claims except for the termination and UR Petitions. Briefs were filed and one day later, the WCJ issued an Interlocutory Order which stated if instructions were not followed regarding filing of a C&R, a settlement hearing date would not be given. The employer complied with the order, and filed the C&R. Subsequently, the WCJ notified the parties that the C&R must resolve all issues in the petitions, or would not be entertained. A settlement hearing was never held, and the WCJ then issued a decision, granting the Termination Petition and dismissing the UR Petitions. The WCJ also said that the Petition for Approval of a C&R was dismissed without prejudice, as the issues in the Termination and UR Petitions went to a decision. The claimant appealed to the Workers’ Compensation Appeal Board (Board). The Board granted the claimant’s appeal, finding that the WCJ violated the requirement of Section 449 that an expedited hearing be held when a Petition for Approval of a C&R is filed.  The Board further held that it was legally incorrect for the WCJ to insist that the C&R resolve all issues raised by the pending Petitions. The Board remanded the case to a new WCJ, and Employer appealed to the Commonwealth Court. The court affirmed the Board and held that the WCJ erred, as a matter of law, by refusing to hold an expedited hearing within 30 days, once the Petition for Approval of a C&R was filed.  The court noted that the language of Section 449(b) is mandatory, and a settlement hearing is not discretionary or dependent on a party’s separate request for a stay, or whether the record has been closed. The court further rejected Employer’s argument that the case should not be remanded to a new WCJ for a new decision on the termination and and UR Petitions, as the Board passed no judgment on whether the C&R Agreement resolved the termination and UR Petitions, and left it for the WCJ to decide in connection with the Petition for Approval of a C&R.

Thought Leadership

Commonwealth Court Reaffirms the Constitutionality of Act 111's IRE Provisions

In this case, the claimant sustained a work injury of January 6, 1994, which was acknowledged by Notice of Compensation Payable (NCP). After the claimant’s receipt of 104 weeks of temporary total disability benefits, the employer filed a Request for an Impairment Rating Examination (IRE). The IRE was performed in May 2023 and the IRE physician found that the claimant had a 5% whole person impairment, under the AMA Guides. The employer filed a Petition based on the IRE results, and the Petition was granted by the WCJ. During litigation, the claimant argued that the IRE provisions of Act 111 (Section 306(a.3) of the Act) were not applicable to her injury, since it predated June 24, 1996, the date Act 57 went into effect, and that the IRE provisions were unconstitutional. The Workers’ Compensation Judge (WCJ)) granted the Petition and the Board affirmed. On appeal to the Commonwealth Court, the claimant argued that Act 111 violated the nondelegation doctrine and that its retroactive application to the claimant’s injury was unconstitutional. The court rejected the arguments on the basis that they had already found the same arguments without merit in multiple, prior cases. The court also addressed an argument made by the claimant that Act 111 was procedurally defective under the Pennsylvania Constitution because it was only considered on two days in each House after having undergone amendments and reassignments. The court noted that the Pennsylvania Constitution requires every bill to be considered on three different days in each House. The claimant maintained that, according to the legislative history, the bill did not receive three separate days of consideration from each House when it was assigned a new bill number. The court pointed out, however, that the bill number, H.B. 1840 remained constant and was considered on three occasions by the House. Further, the court concluded that minor amendments to the bill were germane to its original subject, which was to modify the Act’s IRE process, in accordance with Protz II.

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

News

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

Result

$1.09 Billion Products Liability Verdict Overturned

In this products liability crashworthiness case, the Superior Court of Pennsylvania reversed a Philadelphia jury verdict of $1.09 billion, the largest verdict ever overturned by a PA appellate court.  The court ordered a new trial based on deficient jury instructions, clarified important aspects of crashworthiness law, and confirmed that so-called standard jury instructions may be incompatible with Pennsylvania law. 

graphic announcing our 6 2027 Super Lawyers & Rising Stars

News

Marshall Dennehey Announces 2027 New Jersey Super Lawyers And Rising Stars

Bret E. Dubbert Joins Marshall Dennehey’s Orlando Office as Special Counsel in the Casualty Department

News

Bret E. Dubbert Joins Marshall Dennehey’s Orlando Office as Special Counsel in the Casualty Department

Event

CLM 2026 Focus Conference

Allison joins three insurance industry leaders to discuss how cyber coverage disputes, the growing impact of social inflation on bodily injury claim valuation, and the use of artificial intelligence are reshaping the bad faith landscape. The panel will examine emerging sources of extra-contractual exposure, including evolving cyber insurance coverage issues and the challenges of accurately valuing bodily injury claims. Practical approaches to claim evaluation using AI, along with defense strategies designed to help prevent or successfully defend against bad faith litigation, will also be addressed. 

Result

$19 Million Medical Malpractice Verdict Overturned

In this medical malpractice case, the trial court vacated $10 million of a $19 million verdict in post-trial motions and the Superior Court of Pennsylvania vacated the remaining $9 million on appeal.

Thought Leadership

Appellate Division Reversed Trial Judge's Orders Granting a Plaintiff's Section 40 Summary Judgement Motion

In Haskins v. Casey, et al., the plaintiff Dane Haskins worked for defendant Ekornes, Inc. (Ekornes) as a material handler. In June 2021, he filed a workers’ compensation claim petition for benefits due to a left shoulder injury in December 2020. He then resolved his workers’ compensation claim in November 2022 under an Order Approving Settlement. In January 2023, he filed a lawsuit against Ekornes and later amended to add additional claims and name other defendants, including the Ekornes president, chief financial officer, and director of human resources. In May 2025, a second amended complaint alleged that after he filed the workers compensation claim, Ekornes placed him on leave under the Family and Medical Leave Act (FMLA), denied his request for a work accommodation, and ultimately terminated him from employment in December 2021. He pleaded several causes of action asserting violations of the New Jersey Law Against Discrimination (LAD) as well as fraudulent concealment and wrongful discharge. The plaintiff then moved for partial summary judgment, seeking an order enforcing Section 40 of the Workers’ Compensation Act (WCA) as well as summary judgment on his FMLA claims. The defendants opposed the motions and cross-moved for summary judgment on the FMLA claims. After arguments, the court entered an order in December 2025, denying the FMLA motion and cross motion and granting the plaintiff’s Section 40 motion. In the order, the court permitted the plaintiff to pursue compensatory damages at trial in connection with the bodily injury claim. The court also allowed the plaintiff to present evidence of any workers’ compensation benefits to support his claim. The court then denied the defendant's subsequent reconsideration motion in February 2026. The defendants that appealed the Section 40 aspect of the orders. In reviewing the appeal de novo, the Appellate Division rejected the plaintiff's argument that the work-related injury arose out of his discrimination claims under the LAD. The plaintiff argued that he should be able to pursue a personal injury claim as a part of his LAD claim, noting that the employer’s compensation carrier would be able to assert a lien against any recovery against his LAD claims. In distinguishing between the Richter vs. Oakland Board of Education, 246 N.J. 507 (2021) case, in which the Court found that any recovery would be subject to a Section 40 lien as the allegation was that the defendants failed to accommodate her pre-existing diabetic condition, which resulted in bodily injury. In this case, the Appellate Division indicated that there was no bodily injury caused by Ekornes’ failure to accommodate a pre-existing disability. Rather, the shoulder injury was a result of a workers compensation claim, for which he received appropriate benefits previously. The Appellate Division noted that if the plaintiff was successful in proving his LAD claims, he would be entitled to damages caused by the discriminatory discriminatory conduct such as lost wages and emotional distress damages and that there will be no Section 40 lien. In addition, the Appellate Division disagreed that the petitioner could present evidence about and seek damages for his shoulder injury at trial. Although the petitioner argued that a defendant who retaliated against an employee for filing a workers’ compensation claim should not benefit from the exclusivity provision of the WCA, the Appellate Division noted that the Legislature did not include this type of scenario in the statue nor did any of the case law recognize this type of claim as a remedy. As such, the Appellate Division reversed the December 2025 order granting the the plaintiff’s Section 40 summary judgment motion as well as the February 2026 reconsideration motion order. The Appellate Division noted that they did not intend to limit the plaintiff in his pursuit of his other claims on under the LAD, FMLA, and workers’ compensation retaliation causes of action.

Result

Statutory Employer Immunity Upheld

In this construction accident case that resulted in a $5 million verdict, the Supreme Court of Pennsylvania upheld the Statutory Employer Doctrine, which immunizes general contractors and other contractors on construction sites when certain elements are satisfied.