Premises & Retail Liability

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.

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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 For example, the Ongoing Storm Rule, adopted in 2021, was recently interpreted in two unpublished Appellate Division decisions that provide clarity on the direction the rule is headed.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. 

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_{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.}