By Thomas M. Else

The ongoing storm doctrine adopted by the New Jersey Supreme Court in 2021 in the case of Pareja v. Princeton International Properties, says that that commercial landowners do not have a duty to remove an accumulation of snow and ice from public walkways for a reasonable time after the conclusion of a storm.

However, there are some notable exceptions to the doctrine that will allow cases to continue and not get dismissed.

• Was there a pre-existing snow and ice accumulation prior to the onset of the storm?
• Commercial landowners may be liable if their actions increase the risk to pedestrians and invitees on their property.

One question lawyers need to consider is what constitutes a reasonable amount of time to remove ice and snow after a storm ends. This has already become a point of litigation in cases that have followed Pareja.

When a client comes to a trial attorney with a slip-and-fall case on snow or ice, lawyers need to ascertain the following information.

• What was the exact date, time, and location of the slip-and-fall?

Try and avoid a vague answer like morning or afternoon or a range of dates. If your client cannot recall the exact time period, see if you can access a police report, surveillance video, site-photos, and/or hospital records.

• Obtain a detailed description of the type of slip-and-fall hazard that caused the accident.
  For instance, was it clear, black ice from a melt/refreeze condition? Was it a patch of old ice that was camouflaged by newly fallen snow? There are different types of ice and finding the color, dimensions and location of the ice, will help a meteorologist and other liability experts find the source.

Here are some real-world examples.

• First case: Ongoing Storm - Newly Fallen Snow on Top of Old Ice

A person slipped and fell during a storm where it was actively snowing and there was two inches of new snow on the ground. However, the individual said there was a patch of ice underneath the freshly fallen snow that caused the fall.

In this instance, an investigation into the days leading up to the incident is required to establish whether ice existed prior to the onset of the ongoing storm. A weather expert must consider the accident site’s exposure to sunshine, the type of ice and how it formed as well as a detailed review of other meteorological parameters. 

If the meteorologist can establish within a reasonable degree of scientific certainty that the slipping hazard that caused the accident predated the ongoing storm, and was subsequently covered by newly fallen snow, it may provide the necessary facts to defeat the ongoing storm rule.

• Second case: Morning Freezing Rain Followed by a Late Day Slip-and-Fall

In this example, an individual slipped and fell on black ice in a parking lot around 4:00 pm. Freezing rain fell earlier that morning from 6:00 am to 9:00 am with a temperature in the upper 20s, which resulted in widespread black ice.

Thereafter, the weather was cloudy with no additional precipitation. In addition, the temperature slowly rose to the freezing point by the time of the incident.

The obvious question is was seven hours a reasonable amount of time to remove the ice after the storm ended? From a meteorological and liability experts’ perspective, the answer is yes because the temperature warmed to 32 degrees, which supports the effective use of deicers, and the complete removal of the ice from the property.

Additionally, seven hours should be more than enough time for the defendants to mobilize a crew, get to the incident site, and remove the ice.

• Third case: Ongoing Storm – Property Owner Negligence

A storm produced three inches of snow, and then the snow temporarily stopped. The National Weather Service cancelled the Winter Storm Warning but followed it up with a Special Weather Statement that said some freezing drizzle may produce black ice over the next few hours.

The snow-removal contractor plowed the parking lot but did not follow-up with an application of rock salt because the property owner felt it was not required. After the contractor left, a light freezing drizzle began and resulted in the parking lot to become icy and slippery.

A pedestrian left work, and while  walking in the parking lot, slipped and fell on black ice. For this case, you have an ongoing storm since the precipitation never completely ended. However, you can argue that the defendants made the parking lot condition worse when they removed the snow accumulation, but then neglected to apply rock salt to prevent the freezing drizzle from forming black ice.

A meteorologist can summarize the storm, such as, start-time, snow accumulation, and what National Weather Service forecasts, warnings and/or special weather statements were issued. Then a liability expert can show that the defendants were negligent by not following the weather forecasts and the industry standards on snow and ice removal.

The ongoing storm rule may have added some additional challenges for plaintiff’s attorneys filing slip and fall cases during or shortly after the cessation of a storm.  However, with a detailed review of meteorological and other pertinent data to the case, the experts you hire will be able to identify if there was a pre-existing ice or snow hazard, determine if there was a reasonable amount of time to remedy the condition, and explain whether actions taken by a landowner may. have increased the risk to plaintiff.

Thomas M. Else is a Senior Forensic Meteorologist for Weather Works, LLC, in Hackettstown, NJ. with over 26 years of experience. working on slip-and-fall cases. He is an American Meteorological Society (AMS) Certified Consulting Meteorologist, and a Snow and Ice Management Association (SIMA) Advanced Snow Manager certificate holder. He can be reached at tommyelse@weatherworksinc.com or at 908-867-8350.