OS Wins Motion for Reconsideration in Pareja Claim

OS recently defended a matter for its client, a snow removal contractor, involving a four-day-long snowstorm that resulted in more than twenty inches of snow and ice accumulation. Plaintiff, a unit owner in a Passaic County condominium association, claimed to have slipped and fallen on black ice on the condominium’s sidewalk. 

 

On the accident date, periods of light snow occurred, adding minor snow accumulation. The snow did not completely end until the day after the accident. The contractor testified that he was on the property for the entirety of the snowstorm, and the plaintiff also testified that the contractor was removing the snow and applying de-icing materials on the day she fell. 

 

OS moved for summary judgment on the basis that its client did not owe a duty of care to the plaintiff since the storm was ongoing at the time of her fall. In its denial, the Court based its ruling on the fact that the contractor either did not pre-treat the pavement at the incident location or that an inadequate amount of salt/de-icing materials had been used. The Court further determined that the contractor should have removed ice and put sand or another traction enhancer on the roadway until it was ice-free and safe for pedestrians. 

 

OS moved for reconsideration, arguing that its client had no contractual obligation to pre-treat the roadways. In reviewing its client’s contract with the Association, the only reference to salting was that “Snow removal will commence when first flakes start to accumulate. At this time, [the contractor] will begin by salting the main roads if needed, otherwise [the contractor] will begin snowplowing.” A clear reading of the agreement establishes that the contractor was not contractually obligated to pre-treat the roadways. Instead, salt could be applied to the main roads contemporaneously with the beginning of snow removal at the property. OS argued that the Court imposed a duty on its client that it was not contractually obligated to perform.

 

The New Jersey Supreme Court has held that defendants do not have a duty to keep sidewalks on their property free from snow or ice during an ongoing storm. Pareja v. Princeton International Properties, 246 N.J. 546 (2021). OS argued that there was no basis for liability against its client based on the failure to remove snow or ice during an ongoing storm. There are only two exceptions to the rule outlined in Pareja: (1) where the defendant’s actions increase the risk of injury to a plaintiff by creating unusual circumstances through conduct that exacerbates and increases the risk of injury, and (2) where a defendant fails to remove or reduce a pre-existing risk on the property. The Court found no pre-existing risk on the property that the contractor failed to remove or reduce. Therefore, the Court only analyzed whether the plaintiff produced any evidence that the contractor’s conduct created unusual circumstances such that he increased the risk to the plaintiff, which led to her fall.

 

On reconsideration, OS argued that the Court denied summary judgment because its client did not reduce or mitigate the risk sufficiently during the storm. That is not the standard set forth in Pareja by which New Jersey courts evaluate a defendant’s duty under the Ongoing Storm Doctrine. In fact, it is the very argument that the Pareja Court rejected. Instead, evidence is required to show that the defendant actively increased the danger. Failure to perform an act is not an act that increased the dangers posed by the ongoing storm to the plaintiff. The Court granted OS’s Motion for Reconsideration, noting that it applied the wrong standard in denying its Motion for Summary Judgment, having applied the “negligence standard” instead of the “increased risk standard.” Although Motions for Reconsideration are rarely granted, it can be a cost-effective way to attempt to resolve an error instead of an eventual appeal to the Appellate Division.