Personal Injury Claims From Falls on Snow and Ice: Litigating the Ongoing Storm Doctrine and Its Exceptions

Commercial property owners must keep their property and public walkways free of snow and ice accumulation, but winter storms pose unique issues. The "ongoing storm" or "storm in progress" doctrine provides that the duty to remove snow and ice does not arise until a reasonable time after the storm is over. Defendants argue there is no liability if the injury occurred during the storm because they had no duty to act. Plaintiffs seeking to oppose this will want to prove that the storm already ended. In addition, if there was an ongoing storm, there was a pre-existing snow/ice accumulation that resulted in Plaintiff to slip-and-fall. Or, one of the Defendants was negligent and contributed to the slip-and-fall.

Listen as our distinguished panel offers practical tips and strategies for both Plaintiff and Defense lawyers litigating slip and falls occurring on snow and ice and how it relates to the ongoing storm doctrine.

1. Overview of landowner's duty as to snow or ice removal
2. Ongoing storm doctrine
   1. What it is
      1. In New Jersey, the doctrine was codified in Pareja v. Princeton International Properties, (A-4-20)(2021)
   2. When and how asserted
      1. The Supreme Court holds that a landowner does not have a duty to remove snow or ice from public walkways until “a reasonable time” after the cessation of precipitation
   3. Burdens of proof
   4. Elements of the doctrine
      1. What constitutes an ongoing storm?
      2. When does a storm "officially end?" What if there are breaks in the precipitation?
      3. What is a reasonable amount of time to remove the snow/ice after the storm ends?
         1. Impact of municipal ordinances
         2. Thoroughness of removal
3. Exceptions to the rule
   1. Pre-existing snow/ice accumulation.
      1. Old ice patch that was covered by newly fallen snow.
      2. Residual snow accumulation that was not properly removed and was compacted by pedestrians and vehicles.
      3. Man-made source of water that was purposely discharged and then subsequently refroze.
   2. Property owner, property manager, and/or snow removal contractor negligence.
      1. Drainage issues (broken gutter, faulty drainage).
      2. Improper plowing, shoveling, and/or applying a deicer.
      3. Potholes, cracks, poorly constructed sidewalk - roadway, no handrail for traversing steps
   3.  Post Storm Effects
      1. Refreeze occurs after it rains and falls below-freezing.
      2. Blowing and drifting snow recovering surfaces.
      3. Man-made snow piles in the parking lot from a previous snowstorm that resulted in a melt/refreeze condition.
4. Liability of third-party snow removers
5. Summary judgment considerations
6. Obtaining and admitting evidence
   1. Only using weather data from the internet
   2. Obtaining the right experts
      1. Meteorologist
      2. Engineer
      3. Certified snow professional (people that remove snow and ice for a living)

The panel will review these and other key issues:

• Is applicability of the ongoing storm doctrine a legal question for the judge or factual question for the jury?
• Does a contract between a snow removal company and the landowner create a separate contractual duty to remediate an ongoing storm?
• Is the logic of the ongoing storm doctrine applicable in other weather events?