Pareja v. Princeton Int'l Props.

• Decision Date: 09 April 2020
• Docket Number: DOCKET NO. A-2111-18T3
• Citation: 231 A.3d 751,463 N.J.Super. 231
• Parties: Angel Alberto PAREJA, Plaintiff-Appellant, v. PRINCETON INTERNATIONAL PROPERTIES and Lowe's Landscaping and Lawn Maintenance, LLC, Defendants-Respondents, Princeton International Properties, Defendant/Third-Party Plaintiff, v. Lowe's Landscaping and Lawn Maintenance, LLC, Third-Party Defendants.
• Court: New Jersey Superior Court — Appellate Division

463 N.J.Super. 231

231 A.3d 751

Angel Alberto PAREJA, Plaintiff-Appellant,

v.PRINCETON INTERNATIONAL PROPERTIES and Lowe's Landscaping and Lawn Maintenance, LLC, Defendants-Respondents,Princeton International Properties, Defendant/Third-Party Plaintiff,

v.Lowe's Landscaping and Lawn Maintenance, LLC, Third-Party Defendants.

DOCKET NO. A-2111-18T3

Superior Court of New Jersey, Appellate Division.

Submitted December 2, 2019

Decided April 9, 2020

Garces, Grabler & LeBrocq, PC, attorneys for appellant (David E. Rehe, New Brunswick, on the brief).

William Pfister, Jr., Leonardo, attorney for respondent Princeton International Properties.

Before Judges Fasciale, Moynihan and Mitterhoff.

The opinion of the court was delivered by

FASCIALE, P.J.A.D.

In this slip and fall case, we must address whether the ongoing-storm rule applies in New Jersey. The ongoing-storm rule arbitrarily relieves commercial landowners from any obligation to try to render their property safe while sleet or snow is falling. The rule is premised on the ground that to do so would always be "inexpedient and impractical." Such a bright-line rule, however, ignores situations when it is reasonable for a commercial landowner to remove or reduce foreseeable and known snow or ice hazards. Thus, adherence to the rule frustrates a main function of tort law—deterring tortious behavior and preventing accidents.¹

We 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. Such a duty—to remove or reduce a foreseeable hazard—cannot be fulfilled by always waiting to act until after a storm ends, regardless of the risk imposed to invitees and pedestrians. The commercial landowner's liability may arise only if, after actual or constructive notice, it fails to act in a reasonably prudent manner under the circumstances to remove or reduce the foreseeable hazard. Whether it would be inexpedient or impractical to act is one of many factors for the jury's consideration. Thus, reasonableness is the polestar.

On appeal from the grant of summary judgment, plaintiff argues the judge erred by: (1) Applying the ongoing-storm rule and determining that defendant Princeton International Properties, the commercial landowner, had no duty to remove or reduce the ice hazard until after the precipitation ended; and (2) usurping the jury by finding that no de-icing or removal efforts would have been successful until after the storm ended. We reverse.

I.

When reviewing an order granting summary judgment, we apply the same standard the motion judge considered. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540, 666 A.2d 146 (1995) ; see also R. 4:46-2(c). First, we determine "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, 142 N.J. at 540, 666 A.2d 146. Once we resolve that question, we decide de novo the legal question of whether the moving party is entitled to judgment as a matter of law. Ibid.

The record does not reflect the anticipated number of people using defendant's property on the morning of the accident. We do know, however, that defendant's property consisted of two offices on the first floor, two apartments on the second and third floors, and a paved parking lot with a concrete driveway apron. The accident occurred at 7:50 a.m. on Monday, January 12, 2015, so presumably the businesses were open, the residents who lived on the second and third floors could come and go, and pedestrians were using the public sidewalks.

Defendant employed maintenance people and retained Lowe's Landscaping (Lowe's) to perform snow and ice removal at the property.² However, it appears that no snow or ice pre-treatment or removal occurred on the date in question. Weather conditions caused black ice to form on the sloped apron, which caused plaintiff to slip as he walked to work. He was seriously injured.

Defendant's forensic meteorologist, Matthew Potter, M.S., examined the pertinent temperature trends, precipitation, and the residual snow and ice present on the ground for the six days leading up to the accident. He stated that three storms had occurred over those six days, such that at the time of the accident there remained a trace to less-than-one inch of snow on undisturbed ground surfaces, as well as piles of snow at street corners; the temperature during that timeframe was colder than normal—characterized as sub-freezing; and some ground surfaces remained at or below thirty-two degrees through the time of the incident.

Potter's report is consistent with that of plaintiff's forensic meteorology expert, Alicia C. Wasula, Ph.D, CCM, as well as plaintiff's recollection that it had snowed days before the accident, but on the morning of his accident, "most of the ground [had] no snow" except for "big bunches of snow" at street corners.

Twenty-eight hours before plaintiff's accident, at 3:55 a.m. on January 11, 2015, the National Weather Service issued an advisory predicting a mix of snow and sleet accumulations of around one inch, as well as trace amounts of ice, expected between 1:00 a.m. and 10:00 a.m. on January 12. The advisory warned that untreated surfaces might become slippery due to the precipitation.

Wasula reported that, consistent with the weather advisory, very light sleet fell between 1:31 a.m. and 1:40 a.m., with Potter reporting pockets of "freezing rain and sleet." According to Wasula, there was then "[a] mix of sleet, rain and freezing rain" between 7:22 a.m. and 9:00 a.m. Potter concluded it was reasonably certain, as a result of the precipitation and "sub-freezing temperature[ ] in the prior six days," that "a glaze of ice ... develop[ed] on these colder ground surfaces."

Defendant conceded that it ordinarily prepared for upcoming storms. Defendant's Vice President (the VP) gave deposition testimony about such steps. The record reflects that the VP regularly watched the Weather Channel, and informed Lowe's about expected storms so that "they" would be prepared. At this point in the litigation, we therefore reasonably infer that defendant knew about the advisory's warning that untreated surfaces might become slippery.

Defendant's maintenance supervisor (the supervisor) asserted that Lowe's was responsible for salting the property. He did not know whether Lowe's had been out on the day of the accident. However, that morning, the supervisor was in the general area of the accident and confirmed that the driving conditions were slippery.

At 7:50 a.m. on January 12, plaintiff parked across the street from defendant's property, walked towards the property wearing slip-resistant shoes, and without detecting ice on the roadway, stepped onto the driveway apron and then slipped and fell on black ice. The meteorological documentation in the record indicates that the temperature was thirty-two degrees, the sky was overcast, and the wind was blowing between five and ten miles per hour from the southwest. Plaintiff testified that it was not snowing when he fell, but it was drizzling sleet.

Plaintiff retained Wayne F. Nolte, Ph.D., P.E., a professional engineer, who opined that pre-treating the slippery conditions with anti-icing and de-icing materials would have reduced the hazard. Nolte relied on the advisory; the American Society for Testing and Materials (ASTM) "Standard Guide for [S]now and Ice Control for Walkway Surfaces," which describes techniques for snow and ice control, including preparatory, pre-storm application of anti-icing, de-icing, and abrasive materials, and monitoring and treating walkway surfaces for refreezing; and the American National Standards Institute "Provision of Slip Resistance on Walking/Working Surfaces," which provides that "[e]ffective snow management is anticipatory." He also concluded that nothing in the local ordinance³ regarding snow and ice removal precluded a commercial owner from exercising reasonable care to pre-treat dangerous conditions as they develop.

II.

We now address our rejection of the ongoing-storm rule. We will analyze: (i) The soundness of defendant's argument that our Supreme Court's precedent imposed the rule; (ii) authority from other jurisdictions; (iii) our rationale for imposing a duty of reasonable care on defendant; and (iv) the details of that duty.

(i) Defendant's Erroneous Belief that the New Jersey Supreme Court Adopted the Ongoing-Storm Rule

Our Court has not squarely addressed the ongoing-storm rule, let alone explicitly held that it would categorically be "inexpedient and impractical" for a commercial landowner to make reasonable efforts to remove or reduce known foreseeable snow or ice hazards on public sidewalks abutting its property while precipitation is falling.

Relying on Bodine, defendant erroneously asserts that it is "clear and well settled" that the duty of a commercial landowner to "keep a sidewalk reasonably free and clear of snow and ice does not commence until after a reasonable time passes following precipitation." In Bodine, the plaintiff alleged that the commercial landowner allowed "snow to remain on the store entrance ... for an unreasonable length of time [after] having notice thereof [and] that [doing so] would be slippery and dangerous[.]" 102 N.J.L. at 643, 133 A. 295. The Court of Errors and Appeals identified the only question on appeal: "[W]hether negligence may be reasonably inferred from the testimony." Id. at 642, 133 A. 295. It concluded the judge erred by not entering a directed verdict of no cause of action in the commercial landowner's favor. Id. at 644, 133 A. 295. The Court of Errors and Appeals—in its two-page opinion written ninety-four years ago—did not definitively hold that a commercial landowner has no duty to clear a business entrance of snow and ice until precipitation has ceased, and no...