A storm-in-progress defense means a commercial landowner will not be responsible for a slip-and-fall accident as a result of the accumulation of snow or ice from sidewalks, walkways, driveways, and parking lots, until a reasonable period after the storm ends. The recent decision in Quiles v. Hector provides insight on when that reasonable period of time after the storm ends to commence snow and ice removal begins to run.
Recently, New Jersey only permitted the storm-in progress defense when there were storms involving significant snow fall. See Jimenez v. Maisch, ( "following the severe snowstorm known as the blizzard of '96" and a “state of emergency [that was] still in effect when plaintiff fell, the Court concluded that the property owner did not owe a mail carrier the duty to clear snow and ice from his driveway) See also Holmes v. INCAA-Carroll St. Houses Corp.,(defendant relieved of duty to remove snow after 15 inches of snow fell).
But for a weather event of a less intensity, the Courts made it a jury’s decision on whether it was unreasonable for commercial landowner defendants not to shovel, salt or sand their driveways or walkways, or otherwise make arrangements for such precautions, to provide safe passage for invitees, based upon:
- the extent and timing of the snowfall, the time of day or night,
- the nature of the efforts actually taken by the owner to maintain the premises,
- the practicality of cleaning up in stages or by priorities,
- the plaintiff's care for his/her own safety including his/her foot wear and
- and any other pertinent factor.
On Friday, January 19, 2018, the Appellate Division issued an informative but unpublished decision in the matter of Quiles v. Hector, A-0023-16T1 (App. Div. Jan. 19, 2018)(unpublished) concerning a commercial landowner’s duty to remove snow and ice and when that duty starts to run.
In Quiles, the defendant owned an apartment complex in North Bergen, NJ consisting of 6 buildings totaling 40 rental units. The complex had internal streets and walkways. Defendant’s snow and ice removal procedures were to start removal after the storm ends. On the date of the accident, around 7:30 p.m., the plaintiff was delivering a pizza to a tenant that lived in the defendant’s apartment complex. While walking on an internal walkway to deliver pizza, plaintiff slipped and fell on the snow-covered walkway. The plaintiff offered conflicting accounts on the amount of the precipitation and the timing of the precipitation. The official weather report indicated precipitation started at 2:00 p.m. and continued until 5:00 a.m. the following day, which began as snow and changed to ice pellets and then rain. The tenant, to whom plaintiff was intending to deliver the pizza, testified that there was a foot of snow on the ground when she placed her order and it was still snowing when plaintiff attempted delivery. The trial court dismissed plaintiff’s claim, essentially relying upon a 1926 court decision, Bodine v. Goerke Co.., which held a commercial property owner had a reasonable time after a storm ends in which to remove snow and ice from its walkways. The plaintiff sought an appeal.
The Appellate Division affirmed, stating:
We conclude the defendant had a duty to make the private walkways within his housing complex reasonably safe for known or expected visitors. However, that duty to act reasonably under the circumstances, and defendant cannot be liable for failing to remove the accumulated snow or ice until a reasonable time after the storm ends.
[Slip . Op. at 6. (emphasis supplied)].
In determining what constitutes a reasonable amount of time after a storm ends, the Court relied upon North Bergen’s municipal ordinance that required snow and ice removal from sidewalks within 12 hours of daylight after snow fell or ice formed. The court stated that this time frame may be some indication of a reasonable period of time to act.
Furthermore the Court was not concerned about the amount of the precipitation, whether it was a few inches or a foot, but whether the storm was still in progress at the time of plaintiff’s fall.
Therefore, Quiles provides a renewed basis to argue the storm-in-progress defense is alive-and-well in New Jersey, and particularly in municipalities that have snow and ice removal ordinances. We caution that Quiles, as of now, is an unpublished decision and, therefore, constitutes only persuasive and non-binding authority on the Court.
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