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New Jersey Appeals Court Says “Ongoing Storm Rule” No Longer Applies to Commercial Real Estate — Will This Lead to A Slippery Slope?

For years many lawyers and property owners in New Jersey believed that the “ongoing storm rule” was applicable in this state.  Under that rule a commercial property owner had no duty to treat or remove snow or ice during a storm.  The duty arose after the storm ended at which time reasonable removal efforts had to start.

This rule meant that people who slipped and fell during a storm event would usually not win cases against adjoining commercial property owners based in negligence.  However, that changed on April 9, 2020 in the published decision Pareja v Princeton International Properties, et al., Appellate Division Docket No. A-2111-18T3. Now it is very clear the ongoing storm rule does not apply in New Jersey.  In other words, commercial property owners need to consider the reasonableness of snow clearing and ice treatment while a storm is ongoing, which can be a lot harder than it sounds.

In this case the plaintiff, Angel Pareja, slipped and was hurt on a sidewalk apron in Princeton.  It was sleeting at the time of the accident.  The record shows he parked his car across the street from the premises, wore slip resistant shoes, and fell. Apparently, the landlord had not yet de-iced the walkway and presumably the plaintiff fell on black ice.

At trial, the judge ruled in the property owner’s favor.  The judge essentially applied the ongoing storm rule, holding it would not have been possible for the property owner as a practical matter to address the ice.

The trial court held “if it’s still raining…. if you put down sand, the ice is still forming.  Sand would work if its stays on top[,] but if it gets buried into the ice then that doesn’t work…. I just can’t imagine what they would have done…”

On appeal, the Appellate Division reversed the judgment in favor of the property owner, clearly asserting that regardless of whether it ever was the law in this state, the ongoing storm rule was no longer applicable in New Jersey.  The appeals court rejected the defendants’ assertion that the New Jersey Supreme Court has for many years held otherwise.  The appeals court carefully reviewed each Supreme Court case relied upon by the defendant and case by case, in 31 pages, concluded that the Supreme Court never adopted a bright line rule that snow or ice removal/treatment could be delayed until a storm ended.

The Appellate Division also reviewed decisions from other state courts, finding that while some still adhered to the ongoing storm rule, the emerging trend seems to be away from that position. Instead the fundamental question focusses on the issue of reasonableness.  In other words, what response was reasonable by the property owner at the time of the fall.  This could clearly range from no response, to intermittent icing, to a full blown snow removal effort.  According to the appeals court, the question of reasonableness is dependent on a review of all of the circumstances and it is up to a jury to decide whether a landlord acted reasonably.  This is not a judge’s call, it is up to the jury.

There is no one size fits all definition of reasonableness.  It depends on factors such as the time of day, whether the commercial operation is open for business, the type of storm in progress, whether interim treatment might have any real effect, and outdoor temperatures at the time of the storm and the accident.  The appeals court found that a commercial property owner clearly has a duty to people using the adjacent sidewalks to try to keep them safe, even during a storm.

Up until this case, property owners may have had policies that delayed snow removal until after a storm ends or until there is a specific amount of accumulation on the ground.  There was a certain appeal to these contracts with snow removal companies because they provided a clear trigger for snow removal, which provided certainty and consistency.  They also made economic sense because snow removal contractors charge in part by the time spent air a job site.  In light of this case, that practice is questionable at best.   Now will commercial business have to engage snow removal companies as soon as storm starts just to be “safe?”  Or will the contracts be on an “on-call” basis, and if so who will be charged with making that unenviable decision?

Snow removal companies have long enjoyed contracts that impose clear obligations for at least two reasons.  First, each season they need to plan for a specified number of snow removal employees and they need to make sure they have enough equipment to meet their contractual obligations. This requires a lot of planning and experience.  A defined and uniform snow removal commencement trigger was one factor that made this planning a little easier.  A system that is site and storm specific makes contractor advanced planning more difficult.  Moreover, commercial property operators need contracts with vendors because their lease obligations require that a snow removal company will be available when a large storm occurs. Taking away predictability may diminish the ability of providers to ensure that they will be available to handle all of the storms at any given commercial property.

Furthermore, trading a brightline rule for what is now a jury determination means that uniform standards will be hard to come by.  It means that property owners may now feel pressured to settle lawsuits that otherwise might not have been settled because no one can know in advance how a jury will see this kind of issue.  If more of these cases settle, then insurance premiums will of necessity increase.  If insurance premiums increase, commercial leases which are not triple net will have to be increased as well. All of this would be required in a commercial real estate landscape that has become harder and harder for certain types of industries.

What is the take away from all of this?  What seems like a fairly straight forward decision may have a drastic impact on commercial property operation and it will be some time before we understand the full impact.  One thing that is fairly predictable, this decision is likely not the last time a court in New Jersey will be asked to evaluate this simple, but also very complicated issue.

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