Photo by Mike Scarcella.

If the ongoing-storm rule ever existed in New Jersey, Judge Douglas Fasciale, P.J.A.D., in an April 9, 2020, thorough and well-reasoned discussion of the issue, made it clear that this is not the law. Pareja v. Princeton International Properties, ___ N.J. Super. ___ (App. Div. 2020).

The ongoing-storm rule, recognized by many out-of-state cases, relieves commercial landowners of any obligation to remove snow or ice from their premises until after the precipitation has stopped falling.

Judge Fasciale properly pointed out that such a bright-line rule ignores situations where a landowner, with notice of a continuing, hazardous snowstorm, could, by taking some reasonable action, reduce the hazard. However, in such a situation, "adherence to the rule frustrates a main function of tort law—deterring tortious behavior and preventing accidents."

Therefore, the court held that "a commercial landowner has 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 case arose out of an accident on Jan. 12, 2015, at 7:50 a.m., when plaintiff, on his way to work, slipped and fell on black ice on the driveway apron of defendant's office/residential building.

Three snowstorms had occurred over the six days prior to the accident. Therefore, because defendant regularly watched the Weather Channel, the court inferred that defendant was aware of the prior day's advisory predicting a one-inch accumulation of snow and ice between 1:00 a.m. and 10:00 a.m. on the date of the accident. However, prior to plaintiff's fall, defendant performed no pre-treatment or ice removal services. According to plaintiff's engineering expert "pre-treating the slippery conditions with anti-icing materials would have reduced the hazard."

The court emphasized that although there is no ongoing-storm rule, its decision did not create strict liability on a landowner for every slip and fall on ice; liability attaches only where a landowner fails to "act in a reasonably prudent manner under all circumstances."  

Indeed, Judge Fasciale pointed out that an obligation to act, even before a precipitation event ends, arises only after the landowner has actual or constructive notice of a foreseeable hazard. Therefore, "reasonableness is the polestar."

In reversing the trial court's granting defendant's motion for summary judgment, Judge Fasciale properly determined that "whether defendant acted reasonably under the circumstances by failing to take any precautionary measures and waiting for the precipitation to end is a question for the jury."

In an extensive discussion of the legal authorities, both within and outside New Jersey, the Court noted that defendant relied upon Bodine v. The Goerke Co., 102 N.J.L. 642 (E. & A. 1926) for the proposition that a landowner did not have to remove snow and ice until after the precipitation stopped. However, in Bodine plaintiff fell in a dirty snow and slushy vestibule in the entrance to defendant's store, which plaintiff contended had remained there for an unreasonable length of time. Although it was snowing at the time of the accident, there was no further discussion of defendant's snow removal efforts, or lack thereof, and the court did not adopt an ongoing-storm rule.

Judge Fasciale therefore stated that "relying on Bodine defendant erroneously asserts that it is clear and well settled that the duty of a commercial landowner to keep a sidewalk reasonably free and clear of snow and ice does not commence until after a reasonable time passes following precipitation." Indeed the court noted that "no reasonable reading of Bodine suggests such an expansive declaration of law."

Certainly, in this author's opinion, to adopt a bright-line rule providing that under any and all circumstances a landowner is permitted to wait until a snow event is over before being obligated to start snow removal procedures, would turn tort law on its head.

For example, let us assume that during an unremitting two-day snowstorm (not a totally unexpected event in New Jersey), which is continuously broadcasted on radio and TV, on the internet and in newspapers, a single mother of three has run out of food. Her two toddlers are crying because they are hungry, and her baby needs formula. She cannot wait for the snow to stop. So she braves the elements and ventures out to the supermarket. She slips and falls in the untreated parking lot and sustains serious and disabling injuries.

Should the food store be immunized, and indeed rewarded, for doing nothing to make its premises safe for patrons? Or should it be held to the standard good enough for everyone else, i.e., to do what a reasonably prudent person would do under the same or similar circumstances? The latter, in this author's opinion, is what Judge Fasciale properly decided, no more, no less.

Louis Locascio, a Monmouth County Superior Court judge from 1992 until 2009, is now of counsel with the Red Bank office of Gold, Albanese, Barletti & Locascio, where he heads up their civil and family mediation/arbitration department. He is a certified civil and criminal trial lawyer.