“commercial property owners are not liable for clearing snow during a snowstorm”

Dixon v. HC Equities Assoc., LP , N.J. Super. App. Div. Decidied May 2, 2019.

Submitted by New Jersey Personal Injury Lawyer, Jeffrey Hark.

The issue in this case is what constitutes reasonable efforts by a land owner to remove snow during or after it stops snowing.

The Facts:

After leaving work on March 3, 2015, plaintiff fell during a snowstorm in Elizabeth. According to certified records from the National Centers for Environmental Information, U.S. Department of Commerce, National Oceanic and Atmospheric Administration (NOAA) for Newark Airport, a snowstorm consisting of mixed snow, ice pellets, and freezing rain developed between 5:15 p.m. and 10:09 p.m. that day. A winter weather advisory was issued at 4:01 a.m. on March 3, 2015, stating:

Winter weather advisory remains in effect from 3[:00] [p.m.] this afternoon to 2[:00] [a.m.] EST Wednesday.

*Locations . . . New York City . . . as well as Union [County] . . . .

*Hazard Types . . . snow . . . sleet and freezing rain.

*Accumulations . . . snow accumulation of [one] to [three] inches . . . along with less than a tenth of an inch of ice.

*Temperatures . . . in the lower [thirties]. 2


*Timing . . . snow develops late this afternoon . . . then mixes with sleet and freezing rain this evening before changing to freezing rain by midnight . . . then to plain rain late at night.

*Impacts . . . snow covered surfaces . . . coated with ice . . . will make traveling difficult at times.

Plaintiff was employed as a senior probation officer and left work at 7:00 p.m., exiting the Albender building through the front entrance and walking around the building to the parking lot where her state issued car was parked. According to plaintiff, she slipped and fell on ice outside of the building. At her deposition, she testified that it started snowing earlier that day while she was at work, but not before she arrived, and when she left. There was at least one inch of snow on the sidewalk and “[she] was making tracks . . . [she] was just walking.” Plaintiff was wearing boots and was “walking very slow” because she saw snow on the sidewalk. She testified she “was walking and the next thing [she] knew [she] was in the air and coming down.” Plaintiff “assume[d]” that her feet slipped, but had no specific recollection of whether one foot or both feet slipped. In her interrogatory answers, plaintiff certified that she did not notice ice under the snow before or after her fall, and contradicted herself in a supplemental interrogatory answer stating there was “[i]ce under snow.” She fell on her left side, “hitting [her] butt.” As a result of her fall, plaintiff fractured her left hip and underwent a left hip replacement.1

The Law:

In order to prove her negligence claim, plaintiff must prove: (1) defendant owed her a duty of care; (2) defendant breached that duty; (3) the breach was a proximate cause of her injury; and (4) plaintiff sustained actual damages. Townsend v. Pierre, 221 N.J. 36, 51 (2015). Defendant does not dispute that it owed plaintiff a duty to exercise reasonable care because she was a business invitee at the time of the accident, but her claim fails as a matter of law because she cannot show it breached that duty. We agree.

“An owner or possessor of property owes a higher degree of care to the business invitee because that person has been invited on the premises for purposes of the owner that often are commercial or business related.” Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 433 (1993). That duty requires owners “to make reasonable inspections of the property and to remedy any reasonably discoverable defects.” Id. at 441.

The area to which this duty applies “extends to the premises’ parking lot[.]” MacGrath v. Levin Props., 256 N.J. Super. 247, 250 (App. Div. 1992). Accordingly, a business owner is “under a duty to exercise reasonable care to keep [its parking area] free of ice and snow.” Bates v. Valley Fair Enters., Inc., 86 N.J. Super. 1, 6 (App. Div. 1964). It has long been recognized, however, that commercial landowners have a reasonable time in which to act to clear snow and ice from walkways. See Bodine v. Goerke Co., 102 N.J.L. 642, 644 (E. & A. 1926) (holding that a property owner could not be liable for failing to remove slush or ice from the entrance to a store while the storm was still ongoing).

In this case, it is undisputed that the snowstorm was ongoing when plaintiff slipped and fell while walking to her car. Indeed, plaintiff acknowledged that it was snowing after she arrived for work and when she left the building. Given these undisputed facts, defendant was not obligated to remove snow and ice until the precipitation stopped and it had a reasonable time to remove the snow and ice.

In determining whether a duty exists, the court must consider “whether the imposition of such a duty satisfies an abiding sense of basic fairness under all of the circumstances in light of considerations of public policy.” Hopkins, 132 N.J. at 439. This inquiry “involves identifying, weighing, and balancing several factors—the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution.” ADS Assocs. Grp., Inc. v. Oritani Sav. Bank, 219 N.J. 496, 522-23 (2014) (quoting Brunson v. Affinity Fed. Credit Union, 199 N.J. 381, 403 (2009)). The presence or absence of an enforceable duty is generally a question of law for the court. Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496, 502 (1997).

At common law, residential and commercial property owners did not have a duty to maintain public sidewalks, abutting their premises, free from snow and ice. Skupienski v. Maly, 27 N.J. 240, 247 (1958). An exception was later “carved out” for commercial landowners in Stewart v. 104 Wallace St., Inc., 87 N.J. 146, 149-50 (1981). There, plaintiff fell on a severely dilapidated sidewalk abutting defendant’s property and sustained injuries. Id. at 150. Stewart held that “[c]ommercial property owners are henceforth liable for injuries on the sidewalks abutting their property that are caused by their negligent failure to maintain the sidewalks in reasonably good condition.” Ibid. This duty has been extended to include snow and ice removal if a plaintiff could prove actual or constructive notice by the owner. Mirza v. Filmore Corp., 92 N.J. 390, 395 (1983).

In Mirza, plaintiff was employed by a company that was located in a building owned by defendant. Id. at 393. The entrance to the building was covered with a foot of snow, which concealed ice underneath it. Ibid. It had snowed three or four days before the day of the accident, as well as throughout the night leading into the morning plaintiff fell. Ibid. At the time, there was no duty for an abutting landowner to remove the natural accumulation of snow and ice from a public sidewalk. Ibid. The trial judge granted summary judgment in favor of defendant, and we affirmed. Id. at 393-94.

In considering Stewart, our Court reiterated that “an abutting owner may be liable to a pedestrian who is injured as a result of a dangerous condition irrespective of the fact that nature or some third person caused the condition.” Id. at 394-95. It follows, therefore that:

the duty to remove snow and ice is more important and less onerous than the general duty of maintenance imposed by Stewart. Snow and ice pose a much more common hazard than dilapidated sidewalks. The many innocent plaintiffs that suffer injury because of unreasonable accumulations should not be left without recourse.

[Id. at 395.]
The Court clarified “[t]he abutting commercial owner’s responsibility arises 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. The question is whether a reasonably prudent person would have caused the public sidewalk to be reasonably safe within a reasonable period of time after the person knew or should have known of the condition. Id. at 395-96. Our Court concluded the duty to remove “snow or ice or reduction of the risk” depends on the circumstances. Id. at 396.

Whether a person owes a duty of reasonable care toward another turns on whether the imposition of such a duty satisfies an abiding sense of basic fairness under all of the circumstances in light of considerations of public policy.” Hopkins, 132 N.J. at 439. Our courts have interpreted this to mean that commercial landlords are not required to remove dangerous conditions while snow is still accumulating, but within a reasonable time after snowfall has stopped. See Qian v. Toll Bros., Inc., 223 N.J. 124, 136 (2015) (upholding the imposition of “a duty on commercial property owners to take reasonable measures to maintain a public sidewalk for the safety of pedestrians was consonant with public policy and notions of fairness”).

New Jersey has long upheld the principle that commercial property owners are not liable for clearing snow during a snowstorm. In Bodine, the plaintiff slipped on slush at the entrance of a store. 102 N.J.L. at 642-43. Plaintiff fell while it was still snowing, leading the judge to conclude that these facts could not “justify a jury in finding, that the defendant was guilty of negligence.” Id. at 644. While Bodine involved a plaintiff falling at a store entrance, the premise that an owner cannot be found negligent for failing to clear snow and ice during an ongoing storm has been extended to commercial sidewalks.

I write blogs about many subjects in New Jersey case.  Most of these opinions are “Not Approved for Publication” so you must remember the notice placed at the top of every one of these cases.

” As mentioned above, unpublished opinions are not binding on any court and should not be relied upon for precedential authority. Pressler & Verniero, Current N.J. Court Rules, cmt. 2 on R. 1:36-3 (2019). “Although the parties may bring unpublished opinions to the attention of the court, the court itself may not cite an unpublished opinion except to the limited extent required by the application of preclusionary legal principals or case history.”

The Attorneys in this case attempted to cite numerous other cases regarding additional notice requirements and awareness of a commercial landlord and employers regarding employees leaving at all times during the day. The court rejected these case decisions because they were not “Approved for Publication”

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Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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