Snow and Ice Cases: A Slippery Slope
Snow and ice cases garner many appeals. On summary judgment at the trial court level, commercial landowners frequently argue successfully that they owe no duty to an injured plaintiff who fell on snow and ice outside their property until a reasonable time after the termination of a “continuing snow event.” Recently, an Appellate Division case, Dixon v H.C. Equities Associates LP, upheld a trial court’s grant of summary judgment to defendants on that very basis, finding that it was well-settled that New Jersey property owners were not liable for clearing snow during a snowstorm. A Petition for Certification to the New Jersey Supreme Court was denied, but Justice Albin’s dissent regarding the denial of that Petition makes clear that the law is far from settled regarding a commercial landowner’s duty to the public during a “continuing snow event.”
Noting that the Appellate Division was mistaken in its finding that the New Jersey Supreme Court had spoken to this issue, Justice Albin unequivocally stated that the Dixon case was at least the third unpublished Appellate Division decision to misconstrue the Supreme Court’s holdings in Qian, Mirza and Bodine. Not one of those cases, according to Justice Albin, supports the proposition that a commercial landowner has no duty to make any effort to clear its walkways until a reasonable time after sleet or snow stops falling. Justice Albin then reviewed the majority and minority views taken by other jurisdictions when deciding that issue.
The majority rule is that a commercial landowner owes no duty to remove snow or ice until a reasonable time after the precipitation ends. The minority rule is that a commercial landowner has a duty to take reasonable steps to render a walkway — covered by snow or ice — reasonably safe for its invitees, considering all of the circumstances, even when precipitation is still falling, with the ultimate question of liability to be decided by the jury. In fact, while not cited by Justice Albin, there is an unpublished opinion of the Appellate Division that followed the minority rule in making its determination in a snow and ice case.
Scott v. Mercer County Improvement Authority, Docket No. A-3392-17 (App. Div. April 10, 2019), dealt with the dismissal on summary judgment of plaintiff’s slip and fall on snow and ice claim. In Scott, the plaintiff’s fell during a snowstorm while he was leaving a concert at the Sun Bank National Arena (“the Arena”) promoted by defendant.
The appellate panel found that there was a genuine factual dispute whether reasonable steps were taken to remove snow and ice and reversed the trial court’s grant of summary judgment. The Scott court stated: “A jury should consider whether defendants made reasonable efforts to shovel, salt, or sand the area where plaintiff slipped and fell, or otherwise arrange for such precautions, to provide safe passage for plaintiff from the Arena to his car. A jury should consider all relevant circumstances, which may include: [T]he extent and timing of the snowfall, the time of day or night, the nature of the efforts actually taken . . . to maintain the premises, the practicality of cleaning up in stages or by priorities, the plaintiff’s care for his own safety including his foot wear, . . . and any other pertinent factors. Id. at 8-9 (citing Moore v. Schering Plough, Inc., 328 N.J. Super. 300, 307 (App. Div. 2000).
At the end of his dissent, Justice Albin stressed that “despite the denial of certification, the Appellate Division — in an appropriate case — may revisit the erroneous use of our precedents and address the issue anew in light of the competing rationales presented by cases in other jurisdictions.” In this writer’s opinion, the minority view, as adopted in Scott, is the better-reasoned and fairer approach to snow and ice cases and is more in line with New Jersey jurisprudence. One can only hope that in a future appropriate setting, the Appellate Division will feel the same way.