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The denial of a petition for certification by the New Jersey Supreme Court recently generated some heat and light. The issue presented in Dixon v. H.C. Equities (C382 September Term 2019, Feb. 13, 2020) was whether the owner of a commercial building owes a duty to those who come onto the premises to take measures to render the sidewalks leading to its parking lot safe during a continuing snowfall. Janet Dixon, a worker in the commercial building broke her hip on the sidewalk heading to the parking lot during a snow event. In that setting, the Appellate Division answered the duty question in the negative, relying on Supreme Court opinions which it apparently believed to be precedential on the duty issue. Thus the panel held that a commercial landowner owes no duty to its tenants or the public to take steps to remove snow and ice from its sidewalks until a reasonable time after the snow stops. That holding affirmed the trial judge's grant of summary judgment to defendant based on an absence of duty.

In a fairly unusual move, Justice Albin filed a dissent from the denial of certification. He said he did so to flag an issue for the future and to underscore that the ruling of the Appellate Division and the denial of certification should not be viewed as precedential on the merits. To the extent that the Appellate Division opinion suggests that the particular duty at issue in Dixon already has been decided, like Justice Albin, we respectfully disagree. Nothing in Qian v. Toll Bros., Inc, 223 N.J. 124 (2015); Mirza v. Filmore Corp., 92 N.J. 390 (1983); or Bodine v. Goerke Co., 102 N.J.L. 642 (E.&A. 1926) establishes that a commercial landowner is free to sit on its hands until after a snowfall has stopped. To be sure, Mirza says that a commercial landowner's duty to act is not triggered until a reasonable time after it has received notice of the unsafe condition or hazard, but that could occur long before a storm has ended. For example, under the Appellate Division's formulation, a maintenance worker in a commercial building could sit at the window in her warm office and watch person after person slip and fall on the building's treacherous sidewalks without salting or sanding or even warning the users so long as the snow is in progress.

We recognize that the substantive issue is debatable. Indeed the matter is such that majority and minority views have developed among our sister jurisdictions over whether a commercial landowner has a duty to act on snow and ice when precipitation is still afoot. See e.g. Kraus v. Newton, 558 A.2d 240, 243-44 (Conn. 1989) (noting impracticability of requiring commercial landowner to act during ongoing precipitation), but see Budzko v. One City Center Assoc. Ltd., P'ship, 767 A.2d 310, 314 (Me 2001) (holding commercial landowner owes reasonable duty to respond during a storm where there is foreseeable danger).

We agree with Justice Albin that the debate is not over. What is important, we think, is that issue is an open one and that the Appellate Division's overstatement of our jurisprudence, coupled with the denial of certification, should not be taken as gospel on the merits.