New Jersey Dispenses with the “on-going storm” Absolute Defense

Louis Niedelman, Esq.

On April 9, 2020, the Appellate Division of the New Jersey Superior Court reversed an order for summary judgment in favor of a defendant, who relied upon the “on-going storm” defense as the basis for its motion.

In Pareja v. Princeton International Properties, the court ruled that the “on-going storm” defense is no longer viable in New Jersey. In this case, plaintiff was reporting for work at defendant’s property and slipped on “black ice” while it was not snowing but was drizzling sleet. The adverse weather conditions had been predicted some 28 hours before the accident, announcing a mix of snow and sleet accumulations around one inch and trace amounts of ice. The advisory warned that untreated surfaces might become slippery due to the precipitation. The defendant took no action to treat the ice and snow before plaintiff’s accident. Plaintiff’s expert, a professional engineer, testified that pre-treating the slippery conditions with anti-icing and de-icing materials would have reduced the hazard.

After citing to case law both for and against the defense of the “on-going storm” rule, the appellate court held that commercial landowners now have 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.

The court did not impose strict liability upon the commercial property owner, but instead, indicated that this new duty should be resolved by a jury as a fact issue as to whether the property owner exercised reasonable care in its conduct both prior to and during a storm. In other words, the 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.

The court outlined an eight step approach to be considered by a jury as to whether the commercial landowner acted reasonably:

  1. Whether any action would be inexpedient or impractical;
  2. The extent of the precipitation, including the amount of snow or ice accumulation;
  3. The timing of the precipitation, whether it is day or night;
  4. The nature of the efforts, if any, to prevent, remove or reduce snow or ice accumulation, especially whether conditions were so hazardous as to make it unsafe for the landowner or any contractor to venture out in the elements;
  5. The minimal usage consequent on a “closed” facility in contrast to a normal work week;
  6. The number of individuals expected to use the public sidewalk, premises and the area in need of attention;
  7. The past, current and anticipated weather conditions, including but not solely dependent on reliable weather predictions, and the practicality of reasonable safety measures or methods of ingress or egress; and,
  8. Any other relevant factors.

Again, the commercial landowner is not held to strict liability for such accidents, but it is now a jury issue whether the landowner acted reasonably under all the circumstances by failing to take precautionary measures and waiting for the precipitation to end.

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