Angel Alberto Pareja v. Princeton International Properties (084394) (Mercer County & Statewide)

SYLLABUS
This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.
Angel Alberto Pareja v. Princeton International Properties (A-4-20) (084394)
Argued February 1, 2021 -- Decided June 10, 2021
FERNANDEZ-VINA, J., writing for the Court.
The Court determines whether commercial landowners owe a duty to clear snow
and ice from their property during a storm. The Court considers the adoption of the
ongoing storm rule, under which a landowner does not have a duty to remove snow or ice
from public walkways until a reasonable time after the cessation of precipitation.
In January 2015, plaintiff Angel Alberto Pareja was walking to work when he
slipped on ice, fell, and broke his hip. The sidewalk area on which he fell was on
property owned and managed by defendant Princeton International Properties, Inc.
(Princeton International). The night before, a wintry mix of light rain, freezing rain, and
sleet began to fall. Around the time of his fall, light rain and pockets of freezing rain
were falling. Pareja’s expert opined that Princeton International could have successfully
reduced the hazardous icy condition by pre-treating the sidewalk.
Pareja filed a complaint, and the trial court granted summary judgment to
Princeton International. The Appellate Division reversed and held that Princeton
International had a duty of reasonable care to maintain the sidewalk even when
precipitation was falling. 463 N.J. Super. 231, 235 (App. Div. 2020). The Court granted
certification. 244 N.J. 168 (2020).
HELD: The limiting principles established in the Court’s precedent warrant the adoption
of the ongoing storm rule. Commercial landowners do not have a duty to remove the
accumulation of snow and ice until the conclusion of the storm, but unusual
circumstances may give rise to a duty before then. There are two exceptions that could
impose a duty: if the owner’s conduct increases the risk, or the danger is pre-existing.
1. Originally, the common law provided no liability for landowners for the condition of a
sidewalk and no duty to keep the sidewalk free of snow and ice. In Stewart v. 104
Wallace St., Inc., the Court carved out an exception for commercial landowners, holding
that they “are responsible for maintaining in reasonably good condition the sidewalks
abutting their property and are liable to pedestrians injured as a result of their negligent
failure to do so.” 87 N.J. 146, 157 (1981). In Mirza v. Filmore Corp., the Court extended
1
that duty to expressly include the “removal or reduction of the hazard of snow and ice.”
92 N.J. 390, 400 (1983). Mirza and later cases discuss the imposition of a duty to remove
snow and ice only after the cessation of the hazardous precipitation; none opine on the
imposition of a duty before that point. (pp. 12-15)
2. The Appellate Division imposed a duty for those commercial landowners who “after
actual or constructive notice, [fail] to act in a reasonably prudent manner to remove or
reduce the foreseeable hazard.” 463 N.J. Super. at 251. Such a duty does not consider
the size, resources, and ability of individual commercial landowners or recognize that
what may be reasonable for larger commercial landowners may not be reasonable for
smaller ones. The Court declines to impose a duty that cannot be adhered to by all. The
premise of the ongoing storm rule is that it is categorically inexpedient and impractical to
remove or reduce hazards from snow and ice while the precipitation is ongoing. The
Court agrees, and its decision aligns with the majority rule. (pp. 16-17)
3. Under the ongoing storm rule, commercial landowners do not have a duty to remove
snow and ice until the conclusion of the storm, but unusual circumstances may give rise
to a duty before then. First, commercial landowners may be liable if their actions
increase the risk to pedestrians and invitees on their property. Second, a commercial
landowner may be liable where there was a pre-existing risk on the premises before the
storm. The Court’s rule does not preclude a jury from hearing questions of fact such as
when the storm concluded or whether the accumulation of snow or ice was from a
previous storm. (pp. 17-19)
4. The trial court was correct in granting summary judgment to Princeton International.
Princeton International owes Pareja a duty only in unusual circumstances, none of which
are present here. Princeton International took no action to increase Pareja’s risk, and the
record shows that the ice on the sidewalk was not a pre-existing condition. (p. 19)
The judgment of the Appellate Division is REVERSED.
JUSTICE ALBIN, dissenting, would affirm the Appellate Division, which
rejected the ongoing storm rule, and hold 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, even when precipitation is falling.” 463 N.J. Super. at 251-52.
Stressing that the type of winter weather event matters, Justice Albin states that although
snow removal would be impracticable during an ongoing blizzard, the same could not be
said if there were an inch or two of snow and continuing light flurries, and the landowner
could render the sidewalk safe with little effort or expense. Justice Albin would join the
considerable number of jurisdictions that have rejected the ongoing storm rule.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON, and
SOLOMON join in JUSTICE FERNANDEZ-VINA’s opinion. JUSTICE ALBIN
filed a dissent, in which JUSTICE PIERRE-LOUIS joins.
2
SUPREME COURT OF NEW JERSEY
A-4 September Term 2020
084394
Angel Alberto Pareja,
Plaintiff-Respondent,
v.
Princeton International Properties
and Lowe’s Landscaping and Lawn
Maintenance, LLC,
Defendants,
and
Princeton International Properties,
Defendant/Third-Party
Plaintiff-Appellant,
v.
Lowe’s Landscaping and
Lawn Maintenance, LLC,
Third-Party Defendants.
On certification to the Superior Court,
Appellate Division, whose opinion is reported at
463 N.J. Super. 231 (App. Div. 2020).
Argued Decided
February 1, 2021 June 10, 2021
1
William S. Bloom argued the cause for appellant
(Methfessel & Werbel, attorneys; William S. Bloom, of
counsel and on the briefs, and James V. Mazewski, on the
briefs).
David P. Corvasce argued the cause for respondent
(Garces, Grabler & Lebrocq, attorneys; David E. Rehe,
on the brief).
Mark R. Scirocco argued the cause for amicus curiae
New Jersey Defense Association (Law Offices of Robert
A. Scirocco, attorneys; Mark R. Scirocco, on the brief).
Eric G. Kahn argued the cause for amicus curiae New
Jersey Association for Justice (Javerbaum Wurgaft Hicks
Kahn Wikstrom & Sinins, attorneys; Eric G. Kahn and
Annabelle M. Steinhacker, of counsel and on the brief).
JUSTICE FERNANDEZ-VINA delivered the opinion of the Court.
This case calls on the Court to determine whether commercial
landowners owe a duty to clear snow and ice from their property during a
storm. For the first time, this Court considers the adoption of the ongoing
storm rule, under which a landowner does not have a duty to remove snow or
ice from public walkways until a reasonable time after the cessation of
precipitation.
Angel Alberto Pareja was walking to work in the early morning hours
when he slipped on ice and fell. It had been precipitating that morning in
below freezing temperatures. The sidewalk area on which he fell was located
2
on property owned and managed by Princeton International Properties, Inc.
(Princeton International).
The trial court granted summary judgment to Princeton International,
finding that the ongoing storm rule applied and that Princeton International
therefore owed no duty to maintain its sidewalks during the precipitation. The
Appellate Division reversed, rejecting the ongoing storm rule, and holding that
Princeton International had a duty of reasonable care to maintain the sidewalk
even when precipitation was falling. Pareja v. Princeton Int’l Props., 463 N.J.
Super. 231, 235 (App. Div. 2020).
We disagree with the Appellate Division’s holding and decline to adopt
the Appellate Division’s articulation of the commercial landowner’s duty of
ordinary and reasonable care. Rather, we find that the standard established in
our precedent supports the adoption of the ongoing storm rule. In addition to
adopting the rule, we also recognize two exceptions that could impose a duty:
if the owner’s conduct increases the risk, or the danger is pre-existing.
Therefore, we reverse the judgment of the Appellate Division.
I.
A.
We begin by summarizing the pertinent facts and procedural history. On
January 12, 2015, around 8 a.m., Angel Alberto Pareja drove to work in light
3
rain. He parked across the street from the building where he worked and
walked along the sidewalk. Snow cleared from an earlier storm was piled up
along the edges of the sidewalk. Pareja’s path required him to walk over the
driveway apron, the section of sidewalk that connects the driveway to the
public road. That apron was owned by Princeton International. Temperatures
that morning were below freezing, and, unable to see ice on the driveway
apron due to the rain, Pareja stepped directly onto it, fell, and broke his hip.
The following details of the weather conditions for the morning of
January 12 were established by consistent meteorology reports submitted by
each party. The National Weather Service issued a Winter Weather Advisory
the previous day, January 11, effective from 1 a.m. through 10 a.m. on January
12. Between 1:30 a.m. and 2 a.m. on the morning of January 12, a wintry mix
of light rain, freezing rain, and sleet began to fall at temperatures between
thirty-three to thirty-four degrees. Between 7 a.m. and 8 a.m., directly at and
before the time of Pareja’s fall, “light rain and pockets of freezing rain were
falling,” and the temperature was about thirty-two to thirty-three degrees.
The parties’ reports differed, however, with respect to the location of the
ice on which Pareja fell. The report presented by Pareja concluded that the icy
condition was isolated, while the report presented by Princeton International
4
concluded that the icy condition was found area-wide as a product of the
ongoing freezing rain.
Neither Princeton International’s maintenance supervisor, Sam Alizio,
nor its vice president, Arieh Feigenbaum, could specifically recall whether the
corporation had pre-treated the sidewalks that day. Given that the property
contains two apartments and two offices, the corporation would generally
prepare for storms in that way. It employs Lowe’s Landscaping & Lawn
Maintenance, LLC (Lowe’s Landscaping), for snow and ice removal services
including plowing, snow removal, salting, and pre-treatment.
Alizio was responsible for ensuring that snow removal services were
being performed adequately after a storm, and he would direct further services
if inspection revealed deficiencies in the snow removal. Alizio stated that he
was near the property on the morning of January 12 and had noticed the
slippery conditions, but he could not remember if Lowe’s Landscaping had
treated the sidewalks. And while Feigenbaum would generally watch the
Weather Channel and alert Lowe’s Landscaping of expected storms so they
could address any wintry conditions, he did not recall informing Lowe’s
Landscaping about the conditions on that day.
In an engineering report of the accident presented by Pareja, an expert
opined that Princeton International could have successfully reduced the
5
hazardous icy condition by pre-treating the sidewalk with standard anti-icing
and de-icing materials. The expert stated, first, that Princeton International
“knew or should have known” about the Winter Weather Advisory that was in
effect because it was issued more than twenty-four hours before the accident.
Second, the expert concluded that the sidewalk was in a “hazardous condition”
on the day of the accident due to untreated ice on the surface. And finally, the
expert concluded that Princeton International failed to use anti-icing, de-icing,
or abrasive materials such as sand to make the sidewalk safe.
Pareja’s engineering expert also addressed a local ordinance for the
Borough of Princeton, section 28-16, which requires landowners to remove
snow and ice from sidewalks -- defined in the ordinance to “include the paved
area between the curb and right-of-way line at driveways commonly known as
a ‘driveway apron.’” The ordinance specifically provides for the removal of
snow and ice within twenty-four hours of the conclusion of the hazard-causing
precipitation. When such removal is impractical, it requires the owner to
thoroughly cover the area with sand, ashes, or rock salt. The report explained
that nothing in the ordinance addressed the responsibility of the landowner
before the cessation of the precipitation.
6
B.
Pareja filed a complaint against Princeton International, which then filed
a third-party complaint against Lowe’s Landscaping. Pareja later amended his
complaint to additionally bring a claim against Lowe’s Landscaping.
Both Lowe’s Landscaping and Princeton International moved for
summary judgment. The trial court granted Lowe’s Landscaping’s unopposed
motion, noting that there was no basis for imposing liability. It also granted
Princeton International’s motion, finding that Princeton International did not
owe a duty to Pareja.
The Appellate Division reversed the trial court’s grant of summary
judgment to Princeton International, finding that there were genuine issues of
material fact as to whether Princeton International had actual or constructive
notice of the dangerous condition and whether Princeton International had
acted reasonably. Pareja, 463 N.J. Super. at 253-54. In doing so, the court
rejected the ongoing storm rule. Instead, it held 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, even when precipitation
is falling.” Id. at 251. The court clarified that such liability would arise “only
if, after actual or constructive notice, [a commercial landowner] fails to act in
7
a reasonably prudent manner to remove or reduce the foreseeable hazard.”
Ibid.
In determining whether to impose a duty of reasonable care on
commercial landowners, the court engaged in an analysis of the factors
established in Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993). Id.
at 249-51. The court found all of the Hopkins factors weighed in favor of
imposing a duty of reasonable care. Ibid. To assist the jury in assessing
whether a commercial landowner’s conduct was reasonable, the court gave a
list of factors to consider:
(1) Whether any action would be inexpedient or
impractical;
(2) the extent of the precipitation, including the
amount of snow or ice accumulation;
(3) the timing of the precipitation, whether it’s day or
night;
(4) the nature of the efforts, if any, to prevent, remove,
or reduce snow or ice accumulation, especially whether
conditions were so hazardous as to make it unsafe for
the landowner or any contractor to venture out in the
elements;
(5) the minimal usage consequent on a “closed”
facility in contrast to a normal work week;
8
(6) the number of individuals expected to use the
public sidewalk, premises, and the area in need of
attention;
(7) the past, current, and anticipated weather
conditions, including but not solely dependent on
reliable weather predictions, and the practicality of
reasonable safety measures or methods of ingress or
egress; and
(8) any other relevant factors.
[Id.
-- at 252.]
This Court granted Princeton International’s petition for certification.
244 N.J. 168 (2020). We also granted the motions of the New Jersey
Association for Justice (NJAJ) and the New Jersey Defense Association
(NJDA) to participate as amici curiae.
II.
A.
Princeton International submits that this Court has repeatedly expressed
the principles embodied by the ongoing storm rule and urges us to expressly
adopt it here. It argues that the Appellate Division “fundamentally
misconstrued” the ongoing storm rule as arbitrary when, in fact, the rule
reflects the commonsense recognition that compelling landowners to try to
prevent the accumulation of snow and ice on commercial sidewalks duri ng the
pendency of a winter weather event would be impractical and inefficient.
9
B.
Amicus curiae NJDA aligns itself with Princeton International’s
position, emphasizing that adopting the ongoing storm rule would relieve
commercial landowners of the duty to undertake “Sisyphean” snow and ice
removal efforts during a storm, which could be hazardous to the health and
safety of the landowner as well as futile. It also argues that the rule adequately
serves tort principles because, while a storm is ongoing, pedestrians are on
notice of dangerous conditions.
C.
In Pareja’s view, on the other hand, the Appellate Division’s rejection of
the ongoing storm rule is directly in line with this Court’s precedent. He
submits that the rule created by the Appellate Division properly focuses on the
reasonableness of the landowner’s actions and still internally considers
whether action during a storm may be “inexpedient or impractical,” a major
concern of Princeton International. Pareja contends that the categorical nature
of the ongoing storm rule would encourage inaction by the landowner even in
situations where such action was reasonable and feasible.
D.
Amicus curiae NJAJ echoes Pareja’s position, encouraging this Court to
reject the ongoing storm rule in favor of a duty of reasonable care. It argues
10
that adopting the rule would conflict with precedent, asserting that this Court
has shifted away from bright-line rules and has focused on balancing tests that
address a reasonableness standard instead. NJAJ points out that a duty of
reasonable care on commercial landowners is more than appropriate since they
both invite the public onto their properties and have full control over the
properties’ conditions.
III.
A.
When reviewing a grant of summary judgment, this Court applies the
same standard governing the trial court and considers “whether the competent
evidential materials presented, when viewed in the light most favorable to the
non-moving party, are sufficient to permit a rational factfinder to resolve the
alleged disputed issue in favor of the non-moving party.” Brill v. Guardian
Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Summary judgment should not
be granted unless the record reveals “no genuine issue as to any material fact”
and “the moving party is entitled to a judgment or order as a matter of law.”
R. 4:46-2(c). In questions of law, be it common law or a statute, our review is
de novo. Maison v. N.J. Transit Corp., 245 N.J. 270, 286 (2021).
11
B.
We begin by briefly reviewing our case law on sidewalk liability and a
landowner’s duty to remove snow and ice. While none of these cases directly
address the ongoing storm rule, they nevertheless guide our decision.
Originally, the common law provided no liability for commercial or
residential landowners “for the condition of a sidewalk caused by the action of
the elements or by wear and tear incident to public use.” Qian v. Toll Bros.
Inc., 223 N.J. 124, 135 (2015) (quoting Yankho v. Fane, 70 N.J. 528, 532
(1976), overruled in part by Stewart v. 104 Wallace St., Inc., 87 N.J. 146(1981)). This included “no duty to keep the public sidewalk adjoining their
premises free of snow and ice.” Ibid. (quoting Skupienski v. Maly, 27 N.J.
240, 247 (1958)).
The Court of Errors and Appeals first considered a case of winter
sidewalk hazards in Bodine v. Goerke Co., where the plaintiff slipped on a
wintry slush of “rain mixed with . . . snow” at the entrance of the defendant’s
store. 102 N.J.L. 642, 643 (E. & A. 1926). The Court vacated a jury verdict in
favor of Bodine upon finding that there were “no disputed facts [or] inferences
from those facts, that could or ought to justify a jury in finding[] that the
defendant was guilty of negligence.” Id. at 644. That general principle of
non-liability, however, did not extend to situations where landowners
12
undertook to remove snow from a public sidewalk and, “through [their own]
negligence[,] a new element of danger or hazard, other than one caused by
natural forces, [was] added to the safe use of the sidewalk by a pedestrian.”
Saco v. Hall, 1 N.J. 377, 381 (1949); see Davis v. Pecorino, 69 N.J. 1, 4 (1975)
(noting that the creation of a dangerous condition through the landowner’s
special use of a public walkway also serves as a “well-recognized exception[]
to [the] rules of non-responsibility”).
In Stewart, we carved out an exception for commercial landowners,
holding that they “are responsible for maintaining in reasonably good
condition the sidewalks abutting their property and are liable to pedestrians
injured as a result of their negligent failure to do so.” 87 N.J. at 157. Our
rationale for departure from the longstanding rule against liability was both to
align with the foundations of tort law -- by providing remedies for seriously
injured plaintiffs and creating incentives for landowners to repair deteriorated
sidewalks -- and to respond to changing times in recognition that
municipalities were no longer solely responsible for the maintenance of
sidewalks as they once were. Id. at 155-56.
Two years later in Mirza v. Filmore Corp., we extended the duty
recognized in Stewart to expressly include the “removal or reduction of the
hazard of snow and ice.” 92 N.J. 390, 400 (1983). There, the plaintiff slipped
13
on ice that was covered by snow from storms earlier in the week and the night
before. Id. at 393. Reversing the grant of summary judgment to defendant, we
held that “maintenance of a public sidewalk in a reasonably good condition
may require removal of snow or ice or reduction of the risk, depending upon
the circumstances.” Id. at 395.
We acknowledged in Mirza that “the duty to remove snow and ice is
more important and less onerous than the general duty of maintenance imposed
in Stewart,” and that removal of the common hazards of snow and ice is “less
expensive and more easily accomplished than extensive sidewalk repair.”
Ibid. In the absence of the non-liability rule, we applied the standard that a
commercial landowner’s responsibility would arise “only if, after actual or
constructive notice, he has not acted in a reasonably prudent manner under the
circumstances to remove or reduce the hazard.” Ibid.More recently, we discussed the duty of care a landowner owes to a
pedestrian walking on the sidewalk, where a plaintiff slipped and fell on ice on
a private sidewalk in a common-interest community. Qian, 223 N.J. at 130.
The ice accumulated from freezing rain from a snowstorm earlier in the week
and on the morning of the fall. Ibid. We echoed Mirza’s sentiments to find
that the homeowners’ association and its management company had a duty to
clear snow and ice from the private sidewalks abutting its land. Id. at 136,
14
141-42. That liability has not been extended to residential landowners. Id. at
136; see Luchejko v. City of Hoboken, 207 N.J. 191, 211 (2011).
Significantly, those cases discuss the imposition of a duty on
commercial landowners to remove snow and ice only after the cessation of the
hazardous precipitation; none opine on the imposition of a duty before that
point, which is the crux of this appeal.
IV.
Applying our precedent to a situation where a storm is ongoing, we hold
that commercial landowners do not have the absolute duty, and the impossible
burden, to keep sidewalks on their property free from snow or ice during an
ongoing storm. We find instead that the limiting principles established in our
precedent warrant the adoption of the ongoing storm rule.
Guided by the ongoing storm rule and the facts of this case, we conclude
that Princeton International did not owe Pareja a duty to clear the snow and ice
during the storm, and there were no unusual circumstances that would
otherwise create such a duty. We reverse the Appellate Division’s decision
and find that the trial court was correct in granting summary judgment to
Princeton International.
15
A.
The Appellate Division here imposed a duty of ordinary and reasonable
care that would create liability for those commercial landowners who “after
actual or constructive notice, [fail] to act in a reasonably prudent manner to
remove or reduce the foreseeable hazard.” Pareja, 463 N.J. Super. at 251.
But such a duty does not consider the size, resources, and ability of
individual commercial landowners or recognize that what may be reasonable
for larger commercial landowners may not be reasonable -- or even possible --
for smaller ones. While we trust juries to uphold their duties to evaluate
reasonableness, we do not wish to submit every commercial landowner to
litigation when it is not feasible to provide uniform, clear guidance as to what
would be reasonable. 1 We decline to impose a duty that cannot be adhered to
by all commercial landowners.
The alternative to the duty imposed by the Appellate Division is the
ongoing storm rule. The premise of the rule is that it is categorically
inexpedient and impractical to remove or reduce hazards from snow and ice
while the precipitation is ongoing. We agree. Our precedent makes clear, and
1
The dissent suggests that all a landlord need do to avoid liability is to take
such a simple measure as spreading salt. This ignores the diversity of storms a
landlord may confront and that measures like spreading salt in a heavy
snowstorm or ice storm can be ineffective or even enhance the danger, thus
imposing an untenable duty of care on landlords.
16
we reiterate today, that absent unusual circumstances, a commercial
landowner’s duty to remove snow and ice hazards arises not during the storm,
but rather within a reasonable time after the storm. See Qian, 223 N.J. at 135-
36; Mirza, 92 N.J. at 395-96; Stewart, 87 N.J. at 157; Bodine, 102 N.J.L. at
644. Given the unreasonableness of removing the accumulation of snow and
ice while a storm is ongoing, adopting the ongoing storm rule today is
consistent with our case law on sidewalk liability and snow removal.
Our decision today aligns us with the majority rule and ten other states
that have adopted the ongoing storm rule. See Dixon v. HC Equities
Associates, LP, 241 N.J. 132, 135 (2020) (Albin, J, dissenting). Among those
ten states are four of our neighbors -- Connecticut, Kraus v. Newton, 558 A.2d
240, 243 (Conn. 1989); Delaware, Laine v. Speedway, LLC, 177 A.3d 1227,
1228 (Del. 2018); New York, Solazzo v. N.Y.C. Transit Auth., 843 N.E. 2d
748, 749 (N.Y. 2005); and Pennsylvania, Goodman v. Corn Exch. Nat’l Bank
& Tr. Co., 200 A. 642, 643-44 (Pa. 1938) -- each of which have climates
similar to our own.
Considering our caselaw and balancing the concerns of commercial
landowners with the need to provide redress for injured plaintiffs, we state
today that, under the ongoing storm rule, commercial landowners do not have a
17
duty to remove the accumulation of snow and ice until the conclusion of the
storm, but that unusual circumstances may give rise to a duty before then .
The following unusual circumstances present exceptions to the ongoing
storm rule. First, commercial landowners may be liable if their actions
increase the risk to pedestrians and invitees on their property, for example, by
creating “unusual circumstances” where the defendant’s conduct
“exacerbate[s] and increase[s] the risk” of injury to the plaintiff. Terry v.
Cent. Auto Radiators, Inc., 732 A.2d 713, 717-18 (R.I. 1999). The Supreme
Court of Rhode Island held that “unusual circumstances” existed where a
defendant “actively increas[ed] . . . [the] risk [of injury] by placing [the
plaintiff’s] vehicle so far distant and then directing her to make the longer
walk over the treacherous icy terrain.” Id. at 718. Under those circumstances,
[t]he defendant, by having removed the vehicle to the
rear of its business premises and by having directed the
plaintiff to retrieve it from there, had exacerbated and
increased the risk of the plaintiff’s falling when it
required her to walk some one hundred additional feet
over snow and ice that had been accumulating on
unknown and difficult terrain. She was left with no
choice but to do as directed if she wished to retrieve her
vehicle.
[Id. at 717-18.]
Second, a commercial landowner may be liable where there was a pre -
existing risk on the premises before the storm. For example, if a commercial
18
landowner failed to remove or reduce a pre-existing risk on the property,
including the duty to remove snow from a previous storm that has since
concluded, he may be liable for an injury during a later ongoing storm.
Our rule today does not preclude a jury from hearing questions of fact
such as, but not limited to, when the storm concluded or whether the
accumulation of snow or ice was from a previous storm.
B.
In light of our adoption of the ongoing storm rule and our clarification
that a commercial landowner owes no duty during a storm, we find that the
trial court was correct in granting summary judgment to Princeton
International. Princeton International owes Pareja a duty only in unusual
circumstances, none of which we find here. Princeton International took no
action to increase Pareja’s risk, and the record shows that the ice on the
sidewalk was not a pre-existing condition, but rather a result of the ongoing
storm.
V.
We reverse the judgment of the Appellate Division.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON,
and SOLOMON join in JUSTICE FERNANDEZ-VINA’s opinion. JUSTICE
ALBIN filed a dissent, in which JUSTICE PIERRE-LOUIS joins.
19
Angel Alberto Pareja,
Plaintiff-Respondent,
v.
Princeton International Properties
and Lowe’s Landscaping and Lawn
Maintenance, LLC,
Defendants,
and
Princeton International Properties,
Defendant/Third-Party
Plaintiff-Appellant,
v.
Lowe’s Landscaping and
Lawn Maintenance, LLC,
Third-Party Defendants.
JUSTICE ALBIN, dissenting.
Today, the majority holds that, so long as any precipitation is falling
during a “storm,” the owner of a commercial building has no duty to take
commonsense, practicable, and easy-to-apply measures to render its sidewalks
less hazardous. Those who live and work in commercially owned buildings --
1
or members of the public just passing by -- must traverse the sidewalks in
winter weather. They have no choice but to fulfill the everyday demands of
life, going to and from work or shopping, as light precipitation continues . But
as they slip and slide on the icy walkways -- and fall and suffer serious injuries
-- the profit-making commercial landowner can choose to do nothing and will
face no consequences. The majority has announced that commercial
landowners have no duty to take any reasonable measure to make the sidewalk
safe, such as by spreading salt to prevent avoidable accidents and injuries.
The salting of roadways and highways, even as precipitation is falling,
evidently is not a futile effort; it is a reasonable public-safety measure to
protect motorists from serious and even fatal accidents. Then why is that not
true for pedestrians who must use the sidewalks of commercial landowners?
The majority’s adoption of the ongoing storm rule is not an extension
but a repudiation of our progressive tort law jurisprudence. I agree with Judge
Fasciale’s thorough and well-reasoned analysis, which came to the rather
unexceptional conclusion 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.” Pareja v. Princeton Int’l Props., 463 N.J.
Super. 231, 235 (App. Div. 2020) (emphases added). The Appellate Division
did not impose a duty on commercial landowners to do the im possible when
2
precipitation is falling, only what is practicable under all the attendant
circumstances. Id. at 247-48, 251-52.
I would affirm the Appellate Division and therefore respectfully dissent.
I.
A.
“[O]ne of the main functions of tort law is to prevent accidents” by
encouraging landowners to exercise ordinary and reasonable care. See
Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 448 (1993) (emphasis added).
Imposing liability on a commercial landowner for injuries suffered by a
blameless pedestrian or patron is intended not only to compensate the innocent
injured party, but also to deter irresponsible and negligent conduct by the
landowner. See ibid.A duty of care is imposed on a landowner when doing so “satisfies an
abiding sense of basic fairness under all of the circumstances in light of
considerations of public policy.” Id. at 439. For example, “commercial
landowners are responsible for maintaining in reasonably good condition the
sidewalks abutting their property and are liable to pedestrians injured as a
result of their negligent failure to do so.” Stewart v. 104 Wallace St., Inc., 87
N.J. 146, 157 (1981) (emphasis added).
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More to the point, the “maintenance of a public sidewalk in a reasonably
good condition may require removal of snow or ice or reduction of the risk,
depending upon the circumstances.” Mirza v. Filmore Corp., 92 N.J. 390, 395
(1983) (emphasis added). In Mirza, we stated that “[s]now and ice pose a
much more common hazard than dilapidated sidewalks” and that “the duty to
remove snow and ice is more important,” “less onerous,” and “less expensive
and more easily accomplished than” the duty of major or minor sidewalk
maintenance. See ibid. We noted that “commercial landowners should be
encouraged to eliminate or reduce the dangers which may be so readily
abated.” Ibid.We eschewed any bright-line rule and instead held that “[t]he test is
whether a reasonably prudent person, who knows or should have known of the
condition, would have within a reasonable period of time thereafter caused the
public sidewalk to be in reasonably safe condition.” Id. at 395-96 (emphases
added) (footnote omitted). We concluded that “[t]he many innocent plaintiffs
that suffer injury because of unreasonable accumulations should not be left
without recourse.” Id. at 395.
One of the public policy rationales for imposing on commercial
landowners the duty of clearing their sidewalks of snow and ice is the
economic benefit they receive from keeping their sidewalks “in good repair.”
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See Stewart, 87 N.J. at 159 (quoting Krug v. Wanner, 28 N.J. 174, 179-80
(1958)). “[S]idewalks provide commercial owners with easy access to their
premises and increase the value of their property.” Id. at 152 (emphasis
added). We imposed a duty on commercial landowners in Mirza to clear their
walkways of snow and ice knowing that the protection of the public from harm
and the compensation of those injured would not be without cost -- and that
“spreading the risk of loss” might occur “through the increase of future
insurance policy premiums, or . . . through higher charges for the commercial
enterprise’s goods or services.” See Luchejko v. City of Hoboken, 207 N.J.
191, 203 (2011) (omission in original) (quoting Mirza, 92 N.J. at 397).
B.
Never before has this Court held that a commercial landowner has no
duty to exercise reasonable care to make safe its walkways until a reasonable
time after rain, sleet, or snow stops falling. See Pareja, 463 N.J. Super. at 239-
41. In the case before us, it makes no difference to the majority that it may not
have been onerous or expensive for the commercial landowner to salt or shovel
the icy walkway on which plaintiff Pareja fell and broke his hip. At the time
of Pareja’s fall, there was no snowstorm, just light rain and pockets of freezing
rain. See ante at ___ (slip op. at 4).
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In adopting the ongoing storm rule, the majority has accepted the
premise “that it is categorically inexpedient and impractical to remove or
reduce hazards from snow and ice while the precipitation is ongoing.” ----
Ante at
___ (slip op. at 16). The majority, however, does not attempt to explain how
that premise can possibly be correct in all or even in most circumstances. Is it
really “inexpedient and impractical to remove or reduce hazards from sn ow
and ice while the precipitation is ongoing” if there is only a light dusting of
snow or a light falling of freezing rain? Under a reasonableness analysis,
circumstances matter -- the type of winter weather event matters.
It is not a futile undertaking for commercial landowners exercising
ordinary and reasonable care to protect their tenants, customers, or the general
public if there is precipitation still falling after a minor snowfall or ice storm.
Although snow removal would be impracticable during an ongoing blizzard,
the same could not be said if there were an inch or two of snow and continuing
light flurries, and the landowner could render the sidewalk safe with little
effort or expense.
The adoption of the ongoing storm rule is certainly a boon to
commercial landowners who will have no duty to go to the expense of salting
or shoveling a sidewalk while even slight precipitation is falling. But what
about the safety of a public employee, such as Janet Dixon, who works in a
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commercially owned building and leaves the office at 7:00 p.m., and falls and
fractures her hip on an icy sidewalk because the building’s live-in maintenance
manager made no effort to salt or shovel the sidewalk of snow or sleet while
precipitation still fell? See Dixon v. HC Equities Assocs., LP, 241 N.J. 132,
133 (2020) (Albin, J., dissenting). How many more Janet Dixons must suffer
serious injuries because a commercial landowner has no duty to exercise
reasonable care when it is practicable to do so? To be sure, those at risk for
the most serious injuries from the ongoing storm rule will be the elderly and
those with physical disabilities.
“There is a simple logic behind the law of premises liability: when
business owners exercise due care, there are fewer accidents . . . .” Stelluti v.
Casapenn Enters., LLC, 203 N.J. 286, 326 (2010) (Albin, J., dissenting). The
costs of preventable injuries are borne not just by the victim but also “by
society in many different ways, including through unemployment insurance,
social services, and increased health-care costs.” Ibid. The ongoing storm rule
does not advance a sound or enlightened public policy.
C.
The majority aligns itself with the greater number of states that have
opted against imposing a duty on commercial landowners because of concerns
about impracticability and inexpediency. See ante at ___ (slip op. at 17).
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However, “we have never slavishly followed the popular trends in other
jurisdictions, particularly when the majority approach is incompatible with the
unique interests, values, customs, and concerns of our people.” See Lewis v.
Harris, 188 N.J. 415, 456 (2006).
The basic tort law principles enunciated by this Court are best reflected
by the considerable number of jurisdictions that have rejected the ongoing
storm rule. See, e.g., Carter v. Bullitt Host, LLC, 471 S.W.3d 288, 299-300
(Ky. 2015); Budzko v. One City Ctr. Assocs. Ltd. P’ship, 767 A.2d 310, 314
(Me. 2001); Danner v. Myott Park, Ltd., 306 N.W.2d 580, 583 (Neb. 1981);
Henderson v. Reid Hosp. & Healthcare Servs., 17 N.E.3d 311, 319 (Ind. Ct.
App. 2014); Lundy v. Groty, 367 N.W.2d 448, 449-50 (Mich. Ct. App. 1985);
Cramer v. Van Parys, 500 P.2d 1255, 1261-62 (Wash. Ct. App. 1972);
Pessagno v. Euclid Inv. Co., 112 F.2d 577, 579 (D.C. Cir. 1940). Those courts
generally hold that, considering all of the circumstances, a commercial
landowner has a duty to take reasonable steps to render a walkway, covered by
snow or ice, safe from foreseeable dangers, even when precipitation is still
falling. The reasoning of those cases is consistent with our holdings in Stewart
and Mirza.
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D.
The majority carves out an exception to its ongoing storm rule, stating
that commercial landowners may be subject to liability “if their actions
increase the risk to pedestrians and invitees on their property.” Ante at ___
(slip op. at 17). That is not a salutary exception. It tells commercial
landowners that they are exposed to liability only if they act. It thus is likely
to encourage landowners to do nothing.
II.
The Appellate Division got it right in rejecting the ongoing storm rule as
inconsistent with this Court’s jurisprudence. A commercial landowner is
expected to do only what is prudent and reasonable, not what is “inexpedient
or impractical.” Pareja, 463 N.J. Super. at 251-52. The duty of ordinary care
merely requires “a commercial landowner to act in a reasonably prudent
manner under all circumstances.” Id. at 252. I too therefore would “hold 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,
even when precipitation is falling.” See id. at 251.
I cannot join an opinion that immunizes commercial landowners from
liability when they do not take reasonable steps to protect the safety of tenants,
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workers, and retail customers in their buildings, and others who use their
sidewalks, merely because precipitation is falling.
I therefore respectfully dissent.
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