‘Ongoing Storm Rule’ Clears Costco of Liability for Customer’s Fall While Snow Falling

By Andrew G. Simpson | July 7, 2023

A New Jersey business is not liable for injuries suffered by a customer who falls in its snow-covered parking lot in the middle of a snowstorm, before the lot can be cleared.

A Costco Wholesale store in North Plainfield, and its snow removal contractor, have been cleared of liability for a patron’s injuries due to the “ongoing storm rule.”

A state Superior Court appeals panel has fully upheld a trial court that cited the state Supreme Court in its ruling that “commercial landowners do not have a duty to remove the accumulation of snow and ice until the conclusion of the storm.” That rule was articulated in a 2021 case, Pareja v. Princeton International Properties.

The customer had maintained that the “ongoing storm” rule applies only to public property, not private property, and that Costco had “exacerbated the risk of harm” by not letting her walk to her car with the support of her shopping cart. But those arguments melted away before both the trial and appellate courts.

In March 2018, Carol Smith fell outside of Costco, injuring herself. On the day of the incident, the Governor had declared a state of emergency for all of New Jersey due to a major snowstorm. After 12:00 p.m., snowfall became heavy, accumulating at a rate of one to two inches per hour. A total of approximately eight inches of snow accumulated throughout the duration of the storm.

During the storm, Smith drove to Costco, parked in the parking lot, and went inside to shop. The storefront was not far from where she parked her vehicle. Her receipt demonstrates she left the store at 2:13 p.m.

Smith left the store, carrying only her purse, to get her car, intending to drive it back to the entranceway, and load the items she bought into her vehicle before she drove home. She stated she was told by a store employee to leave her cart in the exit way of the store. As she walked to her vehicle, she slipped backwards and fell in the area between the entrance doors and red bollards prior to entering the parking lot, injuring herself. There were several inches of snow on the ground when she fell.

Costco sought summary judgement by arguing that the situation was “on all fours” with the state high court’s ruling in Pareja. The trial court agreed that Costco and its landscaper did not owe a duty of care to remove the snow from the area where Smith fell because the snowstorm was still ongoing at the time of her incident, concluding hours later.

The trial court, based on a “plain reading of the rule,” rejected Smith’s argument that Pareja only applies to public property. In the trial court’s view, to limit the ongoing storm rule in this manner would be “inapposite to its purpose of relieving commercial landowners from the impracticability of clearing snow and ice during an ongoing storm.”

The trial court also found no evidence that either Costco or the snow removal contractor “exacerbated the risk of harm” to Smith.

The appeals court noted that a commercial landowner’s duty to maintain safe premises extends to any area in which invitees are expected to go and requires them to protect an invitee from “known or reasonably discoverable dangers.” Specifically, a commercial landowner has a duty to dispose of snow and ice in its parking lots and walkways.

However, the state Supreme Court, in holding that “commercial landowners do not have a duty to remove the accumulation of snow and ice until the conclusion of the storm,” relieved commercial landowners of the duty to continuously clear snow and ice from their property throughout the duration of an inclement winter weather event.

“Such a duty does not consider the size, resources, and ability of individual commercial landowners or recognize that what may be reasonable for larger commercial landowners may not be reasonable — or even possible — for smaller ones. While we trust juries to uphold their duties to evaluate reasonableness, we do not wish to submit every commercial landowner to litigation when it is not feasible to provide uniform, clear guidance as to what would be reasonable. We decline to impose a duty that cannot be adhered to by all commercial landowners,” the high court wrote.

The high court specifically described the ongoing storm rule as suspending a landowner’s duty “until a reasonable time after the cessation of precipitation” and said the landowner’s duty arises “within a reasonable time after the storm.”

In Smith’s case, it is undisputed that her slip-and-fall occurred during the snowstorm. In fact, the storm did not end until many hours after she fell. Thus, the ongoing storm rule applies, relieving the defendants of any duty of care they may have owed plaintiff, the appeals court concluded.

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