The Weather Is Lousy and It’s Not Even a Defense! F. G. Cottrell (May 2020 NRRDA Newsletter)
"The basic duty of a proprietor of premises to which the public is invited for business purposes of the proprietor is to exercise reasonable care to see that one who enters the premises upon that invitation has a reasonably safe place to do that which is within the scope of the invitation.” New Jersey Civil Jury Charge 5.20F(5). However, the “storm-inprogress” doctrine, in those States where it is recognized, relieves the proprietor of the premises of this duty and is a powerful, if overlooked, defense. Its power is the subject of considerable attention in my native State of New Jersey, but the ongoing attention is instructive for lawyers and industry nationwide.
New Jersey was always thought to recognize a storm-in-progress defense, dating to Bodein v. Goerke, 102 N.J.L. 642 (E & A 1926). In Bodein, plaintiff slipped and fell on slushy snow at the entrance to defendant’s store. The evidence was that the snow started at about 9:00am, continued to 3:00pm, and plaintiff fell at about 12:30pm. In reversing verdict for plaintiff, the Appellate court found that there were no disputed facts and “no inferences from those facts that could or ought to justify a jury in finding that defendant was guilty of negligence… [T]herefore it was error for the trial judge to submit the case to the jury”.
Over the decades, Bodine was cited as the seminal authority supporting the “storm-inprogress” defense; a commercial landowner owes no duty to take steps to remove snow or ice until a reasonable time after the precipitation stops. Until Dixon v. HC Equities Assc. LP,, 2020 N.J. LEXIS 176. In Dixon, the evidence was that a snowstorm started at about 5:15pm and was continuing at 7:00pm. when plaintiff’s workday ended and she slipped and fell walking to her car in a parking lot. The trial court granted summary judgment based on the on-going storm, the Appellate Division affirmed and the New Jersey Supreme Court denied certification of the appeal. This concluded the case for Dixon but apparently did not end the legal issue it presented.
A single Justice dissented from the denial of certification, arguing vociferously that the ongoing storm doctrine was outdated, thinly supported by precedent and should be reconsidered. The dissent issued February 13, 2020. The dissent attracted attention, including a lead article in the statewide New Jersey Law Journal. In a case decided April 9, 2020 – a mere seven weeks later- the New Jersey Appellate Division took the cue and ruled that evidence that a storm is continuing is not a categorical defense, but instead the issue whether reasonable efforts were used to provide a safe premises under the circumstances will be a question for the jury.
In recalibrating New Jersey law on the issue, both decisions surveyed the various States and found the defense recognized by the majority of States, including Connecticut, Delaware, Iowa, Kansas, Minnesota, New York, Pennsylvania, Rhode Island, Tennessee, Texas and Virginia. As distilled by the Supreme Court dissent, “The majority rule is that a commercial landowner owes no duty to remove snow of ice until a reasonable time after the precipitation ends”. The minority rule, followed in Kentucky, Indiana, Maine, Michigan, Nebraska, Washington and the District of Columbia, “… is that a commercial landowner has a duty to take reasonable steps to render a walkway – covered by snow and 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.”
To assess the reasonableness of defendant’s conduct the Court suggested various factors: whether any action would be inexpedient or impractical; the extent of the snow or ice accumulation; the timing of the precipitation; whether it is day or night; the nature of the efforts, if any, to prevent, remove, or reduce snow or ice accumulation; whether conditions were so hazardous as to make it unsafe for the landowner or any contractor to venture out in the elements; the minimal usage consequent on a “closed” facility in contrast to a normal work week; the number of individuals expected to use the premises; and the past, current and anticipated weather conditions and the notice given on what remedial measures may be needed. It would be wise to keep these enumerated factors in mind when preparing the defense in jurisdictions where the reasonableness of measures in response to a weather event are for the jury (with New Jersey now apparently among them).
In those jurisdictions that allow a storm-in-progress as a categorical defense, be aware that it is a powerful tool; in many, if not most instances, motions for summary judgment turn on 1 easily proven issue – whether a storm was continuing at the time of the alleged accident. The defense essentially negates the element of a duty owed by the defendant. To position for the motion, testimony should be collected during depositions on the weather. This testimony should be supplanted by certified weather reports obtained by a weather expert for directly from the National Climatic Data Center (“NCDC”) (www.ncdc.noaa.gov). These records are admissible as public records under the F.R.E. 803(8) hearsay exception and self-authenticating if certified under F.R.E. 902(2). See e.g., In Re Complaint of Munyann, 143 F.R.D. 560 (D.N.J. 1992). The motion can be enhanced with newspaper articles and other sources that may describe slippery and other adverse conditions created by the storm, although these materials present their own issues of authentication and admission.
And a final observation: a significant change in the law was achieved (pending action by the New Jersey Supreme Court) by attorneys that argued through two levels of appeal for a change in the law, likely knowing such changes rarely occur in a system so bound to precedent. Although this was “the other side,” we can take the lesson that our willingness to fight can work significant change. It is a consoling thought in these challenging times