The implications of the “ongoing snow rule” in light of Pareja v. Princeton International Properties (App. Div. April 9, 2020)
Spring may be upon us, but the appellate division just released an opinion that will have serious potential impacts for commercial property owners come winter.
The appellate division in Pareja v. Princeton International Properties flatly rejected the so called “ongoing storm rule” which had provided blanket protection to commercial landowners from liability as a result of failing to remove ice and snow during a storm. The property at issue was a commercial office building with a paved parking lot and public sidewalks abutting the property. The plaintiff slipped on a patch of ice at approximately 7:50am on a Monday, presumptively during business hours. The record reflected that a mix of sleet and freezing rain had been falling between 7:22am and 9:00am. The court did not impose liability or find that the landlord did not act reasonably. Rather, the court determined that the mere fact that snow was falling did not protect the landlord from potential liability. Commercial landlords, the court stated, have a duty to take reasonable steps to make public walkways safe and reduce or remove foreseeable hazards. The taking of such steps cannot always wait until a storm is over. If a commercial landlord fails to take these “reasonable steps” after actual and constructive notice of a hazardous condition, they may be held liable.
This opinion represents an expansion of the already existing duty for commercial landlords to keep walkways reasonably safe, even when snow and/or ice is still falling. It is important to note what this decision does NOT require. It does not impose absolute liability for every slip-and-fall on ice. It does not require a landlord under every circumstance to continue to plow and re-plow during a continuous storm throughout the winter. It does not require landlords to clear every inch of their property during an all-day snowstorm. What the ruling DOES require is for landlords to act in a reasonably prudent manner. The court lays out a multitude of factors to determine what is “reasonable”: (1) “[w]hether any action would be inexpedient or impractical”; (2) “the extent of precipitation including the amount of snow or ice”; (3) “the timing of precipitation” (day or night); (4) “the nature of efforts, if any, to prevent, remove, or reduce snow or ice accumulation” considering hazardous conditions which would make it unsafe to make such efforts; (5) whether the facility is open or closed such as during a weekend versus a workday; (6) the amount of people expected to use the subject premises; (7) all weather predictions/conditions “and the practicality of reasonable safety measures or methods of ingress or egress”; and (8) “any other relevant factors.”
The consideration of these factors change a simple yes or no question (was the storm still in progress?) to a complicated weighing of factors which will not only open the door to additional litigation, but will greatly extend the costs of defense. Consequently, commercial landlords should take steps to protect themselves from negative judgments in the future. Snow and ice are foreseeable hazards, so consider greater use of pre-storm measures such as added salting. If a storm is in progress, monitor the situation and consider the above factors when deciding if extra plowing or salting may be advisable. If it is a normal workday for instance, there may be more foot traffic at a given property. If there is freezing rain or lighter snow, take additional steps to ensure that the walkways are safe. If a serious storm is in progress and the conditions are too unsafe for a landlord or contractor to plow, then liability likely will not attach. Again, the court is merely looking for commercial landlords to act reasonably; so do not wait for the snow to stop before taking steps to ensure the property is safe, particularly if there is a known problem.
If you have any questions about how this decision impacts your business, contact Joseph V. Leone, Esq. at email@example.com or Amelia Lyte, Esq. at firstname.lastname@example.org or call 732-545-4717 for more information.