Thought Leadership

Key Points:

• The Appellate Division rejects contention that the “ongoing storm rule” does not apply to privately owned commercial property.
• Appellate court confirms that the holding in Pareja v. Princeton International Properties was not that the ongoing storm rule should apply only to public property.
• Appellate Division affirmed that commercial property owners, whether privately owned or publicly owned, “do not have a duty to remove the accumulation of snow and ice until the conclusion of the storm.” 
• In adopting this rule, the court relieved commercial landowners of the duty to continuously clear snow and ice from their properties throughout the duration of an inclement winter weather event. 

In Smith v. Costco Wholesale, 2023 WL4307729 (N.J. Super. App. Div. July 3, 2023), the New Jersey Appellate Division upheld the ruling of the trial court that had granted summary judgment to the defendant, Costco, holding that the plaintiff could not establish the defendants owed her a duty of care under the ongoing storm rule adopted by the Supreme Court in Pareja v. Princeton International Properties, 252 A.3d 184 (N.J. 2021). The court held the plaintiff’s argument that the ongoing storm rule does not apply to privately owned commercial property lacked merit and that no exception to the ongoing storm rule applied.

On March 7, 2018, Smith slipped and fell on snow and ice on the sidewalk in front of a Costco in North Plainfield, New Jersey, while exiting the store. On the day of the incident, the Governor of New Jersey had declared a state of emergency for all of the state due to inclement weather from a major snowstorm. Between 1:30 a.m. and 12:00 p.m., approximately one-half inch of snow fell. After 12:00 p.m., as the temperature settled at freezing, snowfall became heavy, accumulating at a rate of one-to-two inches per hour. By 5:30 p.m., the rate of precipitation started to lessen, ceasing entirely at approximately 8:30 p.m. A total of approximately eight inches of snow accumulated throughout the duration of the storm. 

During the storm, Smith drove to Costco, parked, and went inside to shop. The storefront was not far from where she parked her vehicle. Her receipt demonstrated she left the store at 2:13 p.m. Carrying only her purse, Smith left the store to get her car, intending to drive it back to the entranceway in order to load the items she bought into her vehicle. She stated she was told by one of the store employees to leave her cart in the exitway of the store. As Smith walked to her vehicle, and before she entered the parking lot, she slipped backwards and fell in the area between the entrance doors and the red bollards, injuring herself. Smith stated there were several inches of snow on the ground when she fell. 

Before the trial court, Smith argued that Pareja only applies to public property. The per curiam Appellate Division opinion, issued by Judges Richard J. Geiger and Maritza Berdote Byrne, agreed with Judge Lynott that the question of whether a sidewalk is public or private is immaterial to the Supreme Court’s holding in Pareja. 

The Appellate Division stated, “[t]he New Jersey Supreme Court adopted the ongoing storm doctrine in Pareja, holding that ‘commercial landowners do not have a duty to remove the accumulation of snow and ice until the conclusion of the storm.’” In adopting this rule, the court relieved commercial landowners of the duty to continuously clear snow and ice from their properties throughout the duration of an inclement winter weather event. 

The court opined that “[p]laintiff seems to derive the support for her argument from a single sentence in Pareja: ‘For 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 until a reasonable time after the cessation of precipitation.’” “It is axiomatic ‘public walkways’ are not synonymous with public property.” Later in the Pareja opinion, the court held that “under the ongoing storm rule, commercial landowners do not have a duty to remove the accumulation of snow and ice until the conclusion of the storm.” “The first statement is merely a recitation of the issue,” the court held. “There is no indication anywhere in the opinion that the court intended to apply the ongoing storm rule only to public property, nor does logic or case law support such a conclusion.”

The trial court also found no exception to Pareja was applicable, ruling that no evidence existed to prove that the defendants “exacerbated the risk of harm to the plaintiff,” other than the risk presented by the snowstorm itself, or that “a pre -existing condition, such as uncleared remnants of prior snow events, caused or contributed in any way to the [p]laintiff’s accident.”

The Appellate Court noted that it was undisputed by the parties that Smith’s slip and fall occurred during the snowstorm. In fact, the storm did not end until many hours after she fell. Thus, the ongoing storm rule applied, relieving the defendants of any duty of care they may have owed the plaintiff. Smith argued the ongoing storm rule did not apply because her injury occurred on private property owned by the Costco defendants. In Smith’s view, Pareja was meant to apply only to incidents occurring on public property, not private property. The appellate court found this argument without merit, holding that, “[b]ased upon a plain reading of Pareja, there is no indication the Supreme Court’s ruling was limited in this manner.”

Smith’s attorney has said that he intends to file for certification with the New Jersey Supreme Court. For now, the law for commercial property owners, whether privately owned or publicly owned, is that “commercial landowners do not have a duty to remove the accumulation of snow and ice until the conclusion of the storm.” In adopting this rule, the court relieved commercial landowners of the duty to continuously clear snow and ice from their properties throughout the duration of an inclement winter weather event. If the Supreme Court grants the plaintiff’s request for certification, then there is a possibility the court may adopt a new standard. Until then, commercial landowners can and will continue to rely upon the “ongoing storm doctrine” as a safe haven to protect them from liability exposure during an inclement weather event. 

*Kevin is a shareholder in our Mount Laurel, New Jersey, office. He can be reached at 856.414.6406 or kmmcgoldrick@mdwcg.com.

_{Defense Digest, Vol. 29, No. 3, September 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.}