Wade Clark Mulcahy LLP

The “slip and fall” might be the quintessential lawsuit, and beyond that it is a lawsuit that comes in more than one flavor; wet-floor, icy condition, debris, etc. The ice and snow variety is particularly noteworthy in the northern part of the United States, where winter temperatures can lead to icy conditions and storms that last for prolonged periods of time. This all begs the question, how does one defend against a slip and fall lawsuit due to icy conditions?

Though any lawsuit’s defenses will depend on the circumstances of the case, the Superior Court of New Jersey, appellate division recently ruled on an appeal touching on one of the issues of winter weather and New Jersey’s ongoing storm rule. In Gallardo v. Walmart, No. A-2336-22, 2024 WL 2003372, at *1 (N.J. Super. Ct. App. Div. May 7, 2024), plaintiff Gallardo slipped and fell at a Walmart in Union, New Jersey. Id. Prior to that winter, defendant Walmart had hired Land Pros of New Jersey, LLC (“Land Pros”) as an ice and snow contractor, which “typically used a salt-spreading snowplow truck, front-end loader, and had a shed on-site with shovels and bagged deicing agent. At two inches of snow accumulation, Land Pros would plow and provide ‘salt services as needed.’” Id. Land Pros cleared the parking lot the day before Gallardo fell, and though there was no snow on the parking lot in the morning of the day of Gallardo’s fall, “by late morning “sleet, snow, and rain began to fall and continued until 3:00 p.m., and it mainly continued to rain through the evening and night.” Id.

After both sides had presented evidence, Walmart “requested the court tailor the jury charge to include language regarding the ongoing storm doctrine. Id. at *3.

In New Jersey, the law is that a property owner or business does not have to remove snow or ice from the property until a reasonable amount of time after the storm ends. In this case, the evidence shows that ... [p]laintiff slipped in the roadway during an ongoing snowstorm.

There is an exception to this rule that you have to consider.

A commercial landowner may be liable if their actions increase the risk to pedestrians and invitees of their property, for example, by creating unusual circumstances where the defendant's conduct exacerbate[s] and increase[s] the risk of injury to the plaintiff. In this case, ... [p]laintiff claims that when Walmart's snow contractor applied salt on the ground, during the snowstorm, an unusual circumstance was created, that increased the risk that pedestrians would fall. Walmart denies that the application of an ice melting agent, during a snowstorm, created an unusual circumstance, which increased inherent hazards to pedestrians, like ... [p]laintiff.

Id. The Trial court declined to include the proposed charge and the jury was charged on “general negligence principles, including negligence and ordinary care, foreseeability, and duties owed to invitees.” Id. Walmart objected to the lack of a charge about the ongoing storm doctrine, but the Trial Court “declined to include language regarding the ongoing storm doctrine because ‘it would bring confusion into the jury in the [c]ourt's view.’” Id. The jury issued a verdict in favor of Gallardo totaling $1,127,941 which the Trial Court ultimately molded to $1,328,658.59. Id. Additionally, the Trial Court “denied Walmart’s subsequent motion for a new trial, judgement notwithstanding the verdict, or remitter.” Id.

In response to the verdict, Walmart filed an appeal, and argued that “trial judge should have instructed the jury on—or considered when adjudicating its pre- and post-trial motions—the ongoing storm doctrine” adopted in Pareja v. Princeton International Properties, 246 N.J. 546 (2021). Id. Moreover, Walmart argued that the “the exceptions to the ongoing storm doctrine did not exist here.” Id. at *4.

Walmart asserts the court improperly denied its motion for summary judgment because Land Pros was granted summary judgment based on the ongoing storm doctrine. The court's ruling on Walmart's motion was contrary to the law of the case and it cannot be held liable for the negligent retention of Land Pros where Land Pros was not found to be negligent.

Id. Walmart also argued that the Trial Court judge “erred when he refused to charge the jury on Pareja and the ongoing storm doctrine” and Walmart noted that the Trial Court “judge based his decision on the lack of a model jury charge, but this did not justify declining to charge the jury on the applicable law.” Id.

The Appellate Court reviewed the case law for Pareja, including the New Jersey Supreme Court’s holdings that “commercial landowners do not have a duty to remove the accumulation of snow and ice until the conclusion of a storm” and that “it is categorically inexpedient and impractical to remove or reduce hazards from snow and ice while the precipitation is ongoing.” Id. at *5. Further, the Appellate Court took into account the New Jersey Supreme Court’s note that “‘unusual circumstances may give rise to a duty before’ the conclusion of a storm” including “two exceptions to the no-duty rule for commercial landowners during ongoing storms.” Id.

The upshot of the Appellate Court’s review was that it decided that the Trial Court did not err “when it denied Walmart’s pre-trial summary judgment motion under the ongoing storm doctrine.” Id. This was because the Appellate Court determined that while summary judgment is “only proper where ‘there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law’” in this case “there was a genuine dispute whether Walmart’s conduct, through its contractor Land Pros, made the parking lot more dangerous on the day of the accident.” Id.

However, the Appellate Court also stated that the model jury instructions have been revised since Pareja and “now account for the ongoing storm doctrine.” Id. Simply put, the “trial judge should have instructed the jury on the ongoing storm doctrine.” Id. at *6. By way of explanation, the Appellate Court stated that:

We part ways with the judge's view that charging the jury on the doctrine would have confused them. The doctrine does not establish a blanket no-duty rule and has two clear exceptions, which are not beyond the ken of the average juror. The jury should have had the option to consider whether Walmart's conduct “ ‘exacerbate[d] or increase[d] the risk’ of injury to ... plaintiff,” or whether the application of the deicing agent was a normal circumstance of an ongoing storm.

Id. The judgment was accordingly vacated and remanded for a new trial, with instruction that if “the matter is re-tried, the court shall instruct the jury using the revised model charge on the ongoing-storm doctrine as a starting point.” Id.

While it is indeed possible that this particular case might proceed to another trial, as to the issue of charging a jury on the ongoing storm doctrine, it is likely that property owners, managers, and contractors, will likely sit up and take notice of the Appellate Court’s ruling.