In New Jersey, a commercial landowner has a duty to take reasonable steps to render a public walkway abutting its property reasonably safe, including the removal of ice and snow. An exception to this duty, however, known as the “ongoing storm defense,” seemingly existed, which relieved a landowner from removing ice and snow until after a reasonable period elapsed from when the storm ended. Recently, the New Jersey Supreme Court appeared to endorse the “ongoing storm defense” when it denied a petition for certification on the issue, but in a dissenting opinion, Justice Albin encouraged the Appellate Division to revisit the defense since it has never been directly addressed by the Court. Almost immediately, picking up on Justice Albin’s cue, the Appellate Division rejected the application of the defense…for now.
In Dixon v. H.C. Equities Associates, LP, the plaintiff left work during an active snowstorm, and was on her way to her car when she slipped and fell on ice on a sidewalk abutting a commercial building. The Trial Court granted summary judgment in favor of the landowner; a decision affirmed by the Appellate Division, who held that the landowner had no duty to remove ice and snow until a reasonable time after the storm had subsided. According to the Appellate Division, the determinative factor regarding the existence of a duty was whether the fall occurred during a continuing storm. If so, the commercial landowner had a reasonable period of time to remediate before the duty to remove ice and now was triggered.
The Plaintiff sought review of the decision by the New Jersey Supreme Court, but the Court denied her petition for certification. In a dissenting opinion, however, Justice Albin provided that he would have granted certification as the matter involved an issue of public importance; namely, a business owner’s duty to make a sidewalk safe during an active storm, which the Court has never directly addressed. He further suggested that the Appellate Division revisit the “erroneous” use of precedent and address the defense directly.
In response to Justice Albin’s dissent, the Appellate Division, in Pareja v. Princeton International Properties, et al., reviewed the viability of the “ongoing storm” defense, and rejected its application, finding that it arbitrarily relieved commercial landowners from any obligation to render their property safe while precipitation is falling. In Pareja, the plaintiff slipped and fell on black ice on the driveway apron while walking to work. The conditions at the time of his fall were described as “drizzling sleet,” i.e. a continuing storm. The defendant’s vice president testified at his deposition that he would prepare for upcoming storms by monitoring the Weather Channel, which had issued a weather advisory that untreated surfaces might become slippery. In its ruling, the Court indicated that the “ongoing storm” rule was not meant to provide blanket immunity to commercial landowners. According to the Court, such a “bright line rule” ignores situations when it is reasonable for a commercial landowner to remove or reduce foreseeable and known ice or snow hazards.
Accordingly, the Appellate Division determined that the existence of a duty to remove snow and ice would not turn on an ongoing storm, but rather, on whether the commercial landowner acted reasonably under the circumstances. The Appellate Division then set forth several factors to assess the reasonableness of a commercial landowner’s conduct, including: (1) whether any action would be inexpedient or impractical; (2) the extent of the precipitation, (3) the timing of the precipitation (i.e. day or night); (4) efforts to prevent, remove, or reduce snow or ice accumulation, especially whether conditions were so hazardous as to make it unsafe to address; (5) the minimal usage consequent on a “closed” facility in contrast to a normal work week; (6) the number of individuals expected to access the area; (7) reliable weather predictions; and (8) any other relevant factors.
Although Pareja appears to have clarified New Jersey’s position on the “ongoing storm” defense, its viability still remains a possibility until the Supreme Court reviews the issue, especially following Dixon. Additionally, despite rejecting a blanket application of the “ongoing storm” defense, under the appropriate circumstances, a landowner may still be relieved of its obligation to immediately address inclement weather, especially where the conditions are severe and/or unpredictable. Unfortunately, in light of the number of factors to consider in determining whether a landowner acted “reasonably,” the courts will likely defer any such determination to a jury instead of drawing such a conclusion on a motion for summary judgment. Therefore, a landowner should undertake all “reasonable” efforts to address any inclement weather as soon as reasonably practical, especially in high traffic areas and during normal business hours. Given the uncertainty of whether the Supreme Court will decide to finally address this issue, we will continue to monitor this area of the law.
 Daniel B. McMeen, Esq. is a Shareholder in GRSLBG&B’s Litigation Department. He defends a wide variety of clients in various civil actions brought forth in New Jersey State and Pennsylvania State and Federal Courts. Daniel can be reached at DMcmeen@grsl.com.
 Natalie N. Wust, Esq. is an Associate in GRSLBG&B’s Litigation Department. She defends a wide variety of clients in various civil actions brought forth in New Jersey State and Federal Courts. Natalie can be reached at NWust@grsl.com .