Thought Leadership

New Jersey’s highest court has finally held that a commercial property owner does not have a duty to remove snow or ice from public walkways until a reasonable time after the cessation of precipitation.

The facts of this case are most important to the court’s ruling. During the morning of January 12, 2015, the plaintiff was walking to work when he slipped and fell on the defendant’s sidewalk, at which time precipitation was falling in below-freezing temperatures. The plaintiff brought suit after sustaining a broken hip.

The defendant applied for summary judgment based on the ongoing storm rule, claiming it had no duty to maintain its sidewalks during the pendency of the storm. The trial court agreed with the defendant’s position, but the New Jersey Appellate Division reversed, holding that a commercial property owner has a duty of reasonable care to maintain a public walkway even as precipitation is falling. In reaching that determination, the Appellate Division considered the eight-factor duty-of-care analysis established by Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993).

The New Jersey Supreme Court has now reversed that decision and has formally adopted the Ongoing Storm Doctrine. The court found that an absolute duty to clear snow and ice during an ongoing storm would be an “impossible burden.” Such an absolute duty lacks consideration of “the size, resources and ability of individual commercial landowners [to] [sic] recognize that what may be reasonable for larger commercial landowners may not be reasonable – or even possible – for smaller ones.” Pareja, 2021 WL 2371260 at *7. However, the Supreme Court carved out two exceptions to this holding: (1) if the commercial property owner’s conduct increases the risk imposed generally by falling precipitation or; (2) if the dangerous condition pre-exists the origination of the storm.

Absent the above two exceptions, the Ongoing Storm Doctrine has been re-established by the New Jersey Supreme Court as the general rule for commercial-landowner defendants, thereby limiting their liability for weather-related accidents during continuing precipitation.

^{Case Law Alerts, 3rd Quarter, July 2021 is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent 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. Copyright © 2021 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.}