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New Jersey Supreme Court Reemphasizes “Unusual Circumstances” Requirement of First Exception to Ongoing Storm Rule
In Gallardo v. Walmart, the New Jersey Supreme Court reaffirmed that, under the ongoing storm rule, a commercial landowner cannot be found liable for remediation measures taken during the storm except under “unusual circumstances.” The ongoing storm rule, adopted by the New Jersey Supreme Court in 2021 under Pareja v. Princeton International Properties, provides that a commercial landowner has no duty to clear snow or ice until a reasonable time after a storm ends unless “unusual circumstances” exist. Pareja identified two types of “unusual circumstances” that give rise to an exception to the ongoing-storm rule: (1) when a commercial landowner’s actions increase the risk to those on their property by creating unusual circumstances where the landowner’s conduct exacerbates and increases the risk of injury to the plaintiff; and (2) where there was a pre-existing risk on the premises before the storm.
Plaintiff Gallardo alleged that she had fallen while walking in the parking lot of a Wal-Mart several hours into an ongoing storm. Before Gallardo’s fall, but after the storm had begun, Wal-Mart’s snow-removal contractor had spread salt throughout the parking lot. Gallardo alleged that the application of salt to the parking lot during the storm without treating the lot before the storm created “unusual circumstances” warranting the application of the first Pareja exception.
The trial court denied Wal-Mart’s motion for summary judgement, viewing Pareja as governing only cases in which a commercial landowner takes no action to remove snow or ice and interpreting Pareja’s first exception to apply when a commercial landlord’s actions “increase the risk” to those on their property. After a five-day trial, a jury ruled in favor of Gallardo. The Appellate Division vacated and ordered a new trial, finding that the trial court erred in declining to instruct the jury on the ongoing-storm rule but agreeing that Wal-Mart was not entitled to summary judgment because there was a dispute as to whether Wal-Mart had “made the parking lot more dangerous,” creating a question for the jury.
The New Jersey Supreme Court disagreed with the lower courts, explaining that the first Pareja exception – “unusual circumstances” – is an “integral component” of the Pareja holding, meaning that the exception “does not apply any time a jury could determine that a commercial landowner’s remediation of snow and ice increases the risk to pedestrians and invitees on the landowner’s property.” Instead, under Pareja, courts “should not impose on commercial landowners a duty to remove snow and ice during an ongoing storm unless it finds that the defendant’s actions gave rise to ‘unusual circumstances.’”
Gallardo reinforces that the “absolute immunity” offered by the ongoing-storm rule applies in scenarios in which commercial landowners make efforts to remove snow and ice absent “unusual circumstances.” Commercial landowners should take care to document the timing and extent of snow remediation measures undertaken before and during an ongoing storm to ensure trial courts have enough information to find that, as a matter of law, no “unusual circumstances” existed at the time of an injury on their property.