Here Comes the Sun:
The End of the Ongoing Storm Rule in New Jersey

April 13, 2020
On April 9, 2020, the Superior Court of New Jersey – Appellate Division, in Pareja v. Princeton Inter’l Prop., et al. , Docket No. A-2111-18T3, addressed the viability of the “ongoing storm rule.” The ongoing storm rule, recognized in several states, including Delaware, New York, Rhode Island, and Virginia, stands for the principle that it would be “factually inexpedient and impractical to attempt reasonable efforts to remove or reduce foreseeable snow or ice hazards while the precipitation is falling,” and thus commercial landowners do not bear the responsibility for injuries resulting from a failure to remove snow and ice from their property when the precipitation is ongoing. See Pareja v. Princeton Int'l Props., 2020 N.J. Super. LEXIS 41, Docket No. A-2111-18T3.

The rule has met its fair share of rejection in other states, including Michigan, Indiana, Maine, and Kentucky. These states take issue with the fact that the bright-line rule dissolves the jury’s responsibility to make determinations as to the reasonableness of a commercial landowner, a determination that is clearly within the province of the jury in property liability disputes.

In holding 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, the Court found that liability is dependent on whether the landowner had actual or constructive notice of the condition, and whether the landowner failed to act in a reasonably prudent manner to remove or reduce the foreseeable hazard, even if the storm has yet to subside.

The Court made a point to note that rejection of the rule does not mean imposition of strict liability for slip and falls during a continuous snowstorm, or that commercial landowners must clear every inch of their property of snow and ice. Rather, the Court, applying traditional and fundamental elements of negligence notes that a jury will be responsible for analyzing whether to impose a common law duty by relying on an analysis of several factors such as:
 
“the relationship of the parties,” the foreseeability and nature of the risk of harm, the “opportunity and ability to exercise care” to avoid the harm, the “public interest,” and ultimately “notions of fairness and common sense.”
 
Hopkins v. Fox & Lazo Realtors , 132 N.J. 426, 439, 443 (1993).
 
This case should put commercial landowners in New Jersey, and their insurance carriers, on notice that they must take whatever reasonable efforts necessary to ensure that the sidewalks and other public walkways abutting their property are kept in a safe condition, even when the snow and ice storm is ongoing. Commercial landowners must act once they have notice of a potentially dangerous condition, and they should not wait for the sun to come out to make the condition on the walkway safe.
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