The Appellate Division has set aside the notion that a commercial landowner's duty to clear snow and ice from sidewalks begins once the snow stops falling, also known as the ongoing storm rule.

In a published decision Thursday, the appeals court reversed awarding summary judgment to a commercial landlord sued by a pedestrian who slipped on an icy sidewalk in Princeton while sleet was falling. A commercial landlord has a duty to take reasonable steps to render a public walkway abutting its property safe, even when precipitation is falling, the appeals court ruled.

The decision suggests the ongoing storm rule took on a life of its own through misapplication of state Supreme Court precedent in prior Appellate Division rulings. The rule ignores situations when it is reasonable to take action to render sidewalks safe during a storm, the panel said.

"Thus, adherence to the rule frustrates a main function of tort law—deterring tortious behavior and preventing accidents," Appellate Division Judge Douglas Fasciale wrote, joined by Judges Scott Moynihan and Stephanie Ann Mitterhoff.

The ruling overturns a decision by Judge William Anklowitz of Mercer County granting summary judgment to property owner Princeton International Properties in 2018. Anklowitz concluded it wasn't reasonable for the defendant to take steps to remediate the ice while precipitation was still falling because "If you put down anything it would get washed away and then re-freeze. If you put down sand, the ice is still forming. Sand would work if it stays on top, but if it gets buried into the ice then that doesn't work."

Fasciale wrote a jury should consider whether any action would be inexpedient or impractical.

"The judge might ultimately be correct, but whether defendant's inaction was reasonable was a question for the jury," Fasciale said.

The lawyer for Princeton International Properties relied on a 1926 case from the state Court of Errors and Appeals to show that the duty of a commercial landowner to keep a sidewalk clear of snow and ice does not commence until after precipitation ends. Fasciale wrote that the assertion was erroneous and the defense lawyer misstated the holding in that case.

Fasciale also noted that state Supreme Court Justice Barry Albin, in a dissent to an order denying certification in a case, cited three times when the Appellate Division misapplied precedent on this question of a property owner's duty to make sidewalks safe before snowfall ends.

In that case, Dixon v. HC Associates, the justices voted 6-1 in February against hearing an appeal of a ruling dismissing the case of a woman who slipped on a sidewalk in the middle of a snowstorm.

At least 11 other jurisdictions embrace the ongoing storm rule while six reject it, Fasciale wrote.

William Pfister Jr., a solo practitioner in Shrewsbury who represented defendant Princeton International Properties, said he was not authorized to comment.

David Rehe of Garces, Grabler & LeBrocq in New Brunswick, who represented plaintiff Angel Alberto Pareja, did not respond to a request for comment.