Wade Clark Mulcahy LLP

In <em>Pareja v. Princeton Int’l Prop</em>., 246 N.J. 546 (2021), the New Jersey Supreme Court adopted the “Ongoing Storm Rule” which holds that a commercial landowner does not have a duty to remove snow or ice from public walkways until a reasonable time after cessation of the precipitation. The Supreme Court created two exceptions to the rule: (1) where a commercial landowner creates an “unusual circumstance” that increases the risk to pedestrians and invitees on their property; and 2) if the dangerous condition is pre-existing such as failure to remove or reduce snow or ice from a previous storm. The rule has been extended to snow removal contractors.

In<em> <a href="https://www.wcmlaw.com/wp-content/uploads/2023/07/Smith-v.-Costco-Wholesale-Corp.pdf">Smith v. Costco Wholesale Corp.</a></em>, the Appellate Division recently addressed this rule in a case where plaintiff was injured in a fall in a Costco parking lot during a snowstorm. The trial court granted defendants motion for summary judgement based on the “Ongoing Storm Rule” and plaintiff appealed.

The Appellate Division affirmed, holding that the trial court correctly found that plaintiff was unable to establish that the defendants owed a duty of care because the Ongoing Storm Rule applied. Plaintiff argued that the rule did not apply to privately-owned commercial property, and that exceptions to the rule applied. However, the Court observed that if a storm is ongoing, commercial landowners do not have an absolute duty, and the “impossible burden,” to keep sidewalks or walkways on their property free from snow or ice. The Court also noted that there was no indication in <u>Pareja</u> that the Supreme Court intended to apply the rule only to public property, adding that the task of removing snow during an ongoing storm was just as burdensome to commercial landowners on private property as it is on public property.

The Court also found that plaintiff failed to show that an exception to the rule applied. Plaintiff argued that defendants exacerbated the risk because they did not allow her to take her shopping cart to her vehicle for support and also began snow removal operations before the storm. However, the Court found the argument without merit because plaintiff failed to tell Costco employees that she intended to use the cart as a means of support, and failed to show that the snow removal was done in a manner that would have increased her risk of injury.

The <em>Smith</em> decision is significant in that it extends the “Ongoing Storm Rule” in <em>Pareja</em> to commercial private property and serves as a reminder that a landowner will generally avoid liability for accidents which occur during a snow/ice storm unless one of the exceptions apply. Landowners must act to remove the snow and ice within a reasonable time after a storm or face liability for any resulting accidents.

Thank you to Jordan Davis for his contribution to this post. Please contact <a href="agibbs@wcmlaw.com">Andrew Gibbs</a> with any questions.