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Emerging Liability Theory Provides New Defense for Premises Cases – The Ongoing Storm Doctrine

September 1, 2019

Defense Digest, Vol. 25, No. 3, September 2019

By Josie A. Scanlan, Esq.*

Key Points:

  • A tool to utilize for summary judgment and leverage for settlement.
  • Defendants are given reasonable amount of time to clear weather conditions on their property.
  • Courts are applying the doctrine on a fact-specific, case-by-case basis.


New Jersey premises liability law is well established: commercial property owners have a duty to maintain the public sidewalks abutting their premises in a reasonably safe condition, and this duty extends to the removal of snow and ice from the abutting public sidewalk. The law requires that commercial property owners act reasonably under the same circumstances. For example, they must take reasonable steps to alleviate the alleged danger by making the sidewalk reasonably safe, within a reasonable period of time, after receiving actual or constructive notice of the existence of accumulation of snow and/or ice.

When deciding whether a commercial property owner acted reasonably with respect to the removal of accumulated snow and/or ice, New Jersey courts have applied the “Ongoing Storm Doctrine.” The ongoing storm doctrine, or “storm in progress” doctrine, specifies that a commercial property owner cannot be held liable, as a matter of law, for failing to remove accumulated snow or ice until a reasonable time after the storm ends.

While it has not yet been officially adopted by the New Jersey courts, the ongoing storm doctrine is recognized in a number of other jurisdictions. See, Walker v. The Memorial Hospital, 45 S.E.2d 898 (Va. 1948); Olejniczak v. E.I. Du Pont De Nemours and Co., 998 F. Supp. 274, 280 (W.D.N.Y. 1998); Munsill v. United States, 14 F. Supp. 2d 214 (D.R.I. 1998); Sinert v. Olympia Dev. Co., 664 A.2d 791 (Conn. App. 1995); Solazzo v. New York City Trans. Auth., 800 N.Y. S.2d 698 (N.Y. App. Div. 2005), aff’d 843 N.E.2d 748 (2005).

The doctrine also comports with our knowledge of winter weather conditions, particularly in our region. The hazardous conditions that occur during snow and ice storms throughout the winter season cannot be fully remedied during the course of an ongoing storm. Land surfaces may need to be shoveled or salted multiple times during the course of a storm, with previously cleared and treated surfaces being again covered with precipitation. Therefore, requiring a property owner to keep the surfaces, like exits and sidewalks, clear of snow and ice accumulation at all times during the course of a winter storm would be unreasonable and unduly burdensome. It would require the property owner to be an insurer of the safety of pedestrians using the exits and sidewalks, a notion that has been explicitly rejected by New Jersey courts. In Walker, 45 S.E.2d at 907, the court recognized that requiring a property owner to continuously remove precipitation from outdoor surfaces during a winter storm would require owners to insure the safety of invitees, “a burden which is beyond ordinary care.” In Foley v. Ulrich, 228 A.2d 702, 709 (N.J.Super. App. Div.) (Kolovsky, J.A.D., dissenting) rev’d, 50 N.J. 426 (1967) (citing Taggart v. Bouldin, 111 N.J.L. 464 (E. & A. 1933), the court stated: “[a] property owner cannot be made out to be an insurer of the safety of pedestrians using the sidewalk.” Accordingly, to accommodate the circumstances posed by winter storms in New Jersey, the courts have increasingly afforded a reasonable period of time after a storm has ended for the property owner to remediate the hazards caused by snow and ice before imposing liability.

For example, the plaintiff in Bodine v. Goerke Co., 133 A.295 (E. & A. 1926), a shopper, slipped on snow slush near the entrance of the defendant’s store at approximately 12:30 p.m. one afternoon. It had started snowing approximately three hours before the plaintiff’s incident and continued to snow for another three hours after the incident. The plaintiff sustained injuries and sued the property owner, alleging that it allowed snow and ice to remain on the store entrance for an unreasonable length of time after having notice of the condition. In deciding whether the defendant was negligent, the court contrasted the case before it to the earlier case of Cooper v. Reinhardt, where the defendant, a hotel owner, was found negligent for allowing ice to remain for more than three hours after the snow had stopped falling. In contrast to Cooper, the evidence in Bodine indicated the snowstorm was ongoing at the time of the plaintiff’s accident. Accordingly, the New Jersey Supreme Court concluded that no reasonable jury could find the defendant guilty of negligence because the snow slush condition did not persist for an unreasonable length of time.

Relying on and applying the precedent set forth in Bodine, the New Jersey Appellate Division has recently applied the ongoing storm doctrine to affirm summary judgment in favor of commercial property owners on multiple occasions. See Holmes v. INCAA-Carroll St. Houses Corp., 2015 N.J. Super. Unpub. LEXIS 1280 (N.J.Super. App. Div. Jun. 2, 2015); Quiles v. Hector, 2018 N.J. Super. Unpub. LEXIS 124 (N.J.Super. App. Div. Jan. 19, 2018); Hill v. St. Barnabas Med. Ctr., 2018 N.J. Super. Unpub. LEXIS 1699 (N.J.Super. App. Div. Jul. 16, 2018); Oyebola v. Wal-Mart, Inc., 2019 N.J. Super Unpub. LEXIS 432 (N.J.Super. App. Div. Feb. 25, 2019). In these cases, the court determined that the duty of care did not require snow and ice remediation while a storm was in progress. While not precedential, these cases demonstrate the New Jersey courts’ increasing willingness to apply the ongoing storm doctrine to the benefit of property owners.

In conclusion, the ongoing storm doctrine is an increasingly useful tool to utilize when developing our defense strategy on liability. When the facts of the case support the application of the doctrine, summary judgment in favor of the property owner is increasingly likely, as the New Jersey courts have demonstrated they are moving toward adopting the ongoing storm doctrine as precedential law.

*Josie is an associate in our Roseland, New Jersey office. She can be reached at or 973.618.4173.


Defense Digest, Vol. 25, No. 3, September 2019. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2019 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact


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Josie A. Scanlan
(973) 618-4173


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