Defending Snow and Ice Claims in Pennsylvania and New Jersey
Defense Digest, Vol. 24, No. 1, March 2018
By Alex B. Norman, Esq., Brielle N. Kovalchek, Esq. and Elyse N. Cohen, Esq.*
The full version of this article originally appeared in the February 6, 2018, issue of Pennsylvania Law Weekly. © 2018 ALM Media Properties, LLC. Reprinted with permission. Further duplication without permission is prohibited. All rights reserved.
It is generally well known that at this time of year snow and ice (#SNICE) are commonplace. Yet, despite the commonness of snow and ice in this area, people still get injured as a result. Why? It’s pretty simple actually. Snow and ice are slippery. A little bit of snow, ice, black ice or freezing rain can turn the roughest paved surface into a skating rink. Alas, all is not lost. An accident involving snow or ice does not mean that plaintiffs are guaranteed recoveries. This article will outline various defenses available and some precautions and practice points that property owners can utilize to protect themselves, particularly through risk transfer, against the claims and lawsuits that are a near certainty.
Defenses in New Jersey
In any negligence action, the plaintiff must prove a duty of care. With regard to snow and ice removal in New Jersey, the duty first turns on whether the premises is a commercial or residential property. New Jersey courts have long held that residential owners owe no duty to clear snow and ice from public sidewalks abutting their land. Luchejko v. City of Hoboken, 23 A.3d 912, 918 (N.J. 2011) (citing Davis v. Pecorino, 350 A.2d 51, 53 (N.J. 1975)). Commercial owners, however, are “[l]iable for injuries on the sidewalks abutting their property that are caused by their negligent failure to maintain the sidewalks in a reasonably good condition.” Luchejko, 23 A.3d at 918 (citing Stewart v. 104 Wallace Street, Inc., 432 A.2d 881, 883 (N.J. 1981)).
In Jimenez v. Maisch, 748 A.2d 121 (N.J.Super. App. Div. 2000), the court held that a residential property owner owed no duty to the plaintiff, a postal worker delivering mail, when the plaintiff slipped and fell on ice on the defendant’s property. The court considered several factors to be determinative that no duty existed: (1) nearly 30 inches of snow had fallen in the days before the plaintiff’s accident; (2) the state of New Jersey had declared a state of emergency; and (3) at least half of the defendant’s neighborhood still had some snow on the residential sidewalks and driveways. The court considered the risk “obvious” and that it was contrary to a basic sense of fairness to impose a duty on the land owner in such a situation.
Since 2002, Jimenez has also been applied in the commercial setting. Most recently, in Holmes v. INCAA-Carroll St. Houses Corp., 2015 N.J. Super. Unpub. LEXIS 1280 (N.J.Super. App. Div. June 2, 2015), the court held that the defendants were not required to remove snow in the midst of an ongoing snowstorm. The plaintiff fell on a snow accumulation outside of her apartment, which was managed by the defendants. The court held that, because there was a massive snowstorm the day before, a winter storm watch was still in effect and the public roads were still not clear in the area surrounding the defendant’s property, it would have been unfair in light of the circumstances and public policy to impose a duty on the landlord.
In 2010, in Richards v. Quality Auto. of Bloomingdale, Inc., 2012 N.J. Super. Unpub. LEXIS 1484 (N.J.Super. App. Div. June 25, 2012), the plaintiff fell on a sidewalk abutting the defendant’s commercial property. The court distinguished Jimenez as the size of the storm in comparison was vastly smaller.
Jimenez’s principles were also applied in DeLucca v. Givaudan Roure Corp., 2010 N.J. Super. Unpub. LEXIS 1711 (N.J.Super. App. Div. July 23, 2010). In that case, the plaintiff, a truck driver, originally pulled his truck into the loading dock area at the defendant’s property at 4:00 a.m. without incident. When he returned to the dock at 2:30 p.m., he slipped and fell on ice on the dock. Citing Jimenez, the court held that, while the owner of the property had a non-delegable duty to provide safe conditions for those individuals entering the site and utilizing its property, because it was not their contractual duty to remove snow at the time of the incident, no liability could be found.
In all, the duty analysis in New Jersey snow and ice removal cases requires a balancing of factors. The duty analysis is “highly fact specific” and, thus, a determination that should be made by the court. Jimenez v. Maisch, 748 A.2d at 124 (citing Hopkins v. Fox & Lazo Realtors, 625 A.2d 1110, 1116 (N.J. 1993)).
Defenses in Pennsylvania
In Pennsylvania, although possessors of land are typically responsible for keeping their property free from dangerous conditions, the law does not impose a duty on possessors to protect against “general slippery conditions” that occur during winter. Rinaldi v. Levine, 176 A.2d 623 (Pa. 1962). Rather, the Hills and Ridges Doctrine is frequently applied and often bars a plaintiff’s claim of injury resulting from slipping and falling on snow or ice. Under the Hills and Ridges Doctrine, a plaintiff must establish that: (1) the snow and ice accumulated on the sidewalk in ridges or elevations that unreasonably obstruct travel and constitute a danger to pedestrians; (2) the property owner had actual or constructive notice of the condition; and (3) the dangerous accumulation of snow and ice caused the plaintiff’s fall. Rinaldi v. Levine, 176 A.2d at 625.
The rationale behind the Hills and Ridges Doctrine is founded upon the realistic understanding that snowy, icy conditions are common during the winter season. Thus, “[t]o require that one’s walks be always free of ice and snow would be to impose an impossible burden in view of the climactic conditions in this hemisphere.” Gilligan v. Villanova University, 583 A.2d 1005, 1007 (Pa.Super. 1991). Under the doctrine, possessors are only obligated to act within a reasonable time to remove the snow and ice. Morin v. Traveler’s Rest Motel, Inc., 704 A.2d 1085 (Pa.Super. 1997).
Pennsylvania case law has established several conditions precedent before the Hills and Ridges Doctrine can be invoked. For example, the doctrine only applies when “general slippery conditions [prevail] in the community.” Tonik v. Apex Garages, Inc., 275 A.2d 296, 298 (Pa. 1971). See also Morin v. Traveler’s Rest. Motel, Inc., 704 A.2d 1085, 1087 (Pa.Super. 1997) (citing Harmotta v. Bender, 601 A.2d 837 (Pa.Super. 1987)). When a plaintiff claims to have slipped on a “localized patch of ice,” or on a condition created by a defendant’s negligence—such as a defective water pipe, hydrant or spigot—Pennsylvania’s courts have declined to apply the doctrine to shield possessors of land from liability. Harmotta v. Bender, 601 A.2d at 841-842.
Further, the doctrine only applies to private and public outdoor premises, such as parking lots and walkways. In Heasley v. Carter Lumber, 843 A.2d 1274 (Pa.Super. 2004), for example, the Superior Court considered whether the doctrine should be extended to include circumstances where a plaintiff slips and falls in a structure partially open to the elements. The Superior Court declined to extend the scope of the doctrine, ruling that it would be “unnecessary and unwarranted.”
The Hills and Ridges Doctrine is not applied where the accumulation is not natural, such as when snow is plowed or deposited into a pile that obstructs a walkway. For instance, in Basick v. Barnes, 341 A.2d 157 (Pa.Super. 1975), the Superior Court declined to apply the Hills and Ridges Doctrine when a woman was forced to walk in the street due to a snow bank blocking the sidewalk and berm of the road. Decades later, the Superior Court again declined to apply the Doctrine when improper snow removal or salting procedures created unnatural accumulations of ice. Harvey v. Rouse Chamberlin, Ltd., 901 A.2d 523 (Pa.Super. 2006); Liggett v. Pennsylvania’s N. Lights Shoppers City, Inc., 75 Pa. D. & C. 4th 322, 327-28 (C.P. Beaver 2005).
Despite its limitations, courts still widely employ the Hills and Ridges Doctrine. For example, in Alexander v. City of Meadville, 61 A.3d 218, 225 (Pa.Super. 2012), the Superior Court affirmed the trial court’s decision to grant summary judgment in favor of the business owner where a plaintiff alleged that he slipped and fell on an icy ramp. The plaintiff had alleged that, while he was walking home at 1:20 a.m. on a weekend, he slipped and fell on a smooth patch of ice covered by 1” to 2” of snow in a dip in a ramp. The Superior Court held that the property owner did not owe a duty of care to the plaintiff since he did not prove that the property owner had actual or constructive notice of the conditions because no employees worked outside of business hours. Moreover, the plaintiff’s testimony that he fell on a smooth patch of ice was insufficient to establish that the snow and ice were unnavigable lumps and mounds.
In O’Donnell v. CoGo’s Co., 116 A.3d 678 (Pa.Super. 2014), the Superior Court utilized the Hills and Ridges Doctrine to affirm the lower court’s decision granting summary judgment in favor of the defendants. Despite plaintiff’s allegation that she fell on an isolated patch of ice due to the defendant’s failure to properly salt the entire lot, the court acknowledged that icy conditions prevailed in the community at the time of the accident and ruled that the plaintiff failed to adduce sufficient evidence to show that the natural accumulation that caused her fall was of such a nature as to unreasonably obstruct her travel.
One year later, in Lockman v. Berkshire Hills Assocs., L.P., 131 A.3d 86 (Pa.Super. 2015), the Superior Court affirmed the entry of summary judgment in favor of the defendants-property owners. There, the plaintiff fell on icy remnants from a prior storm in the midst of a new snowfall. Relying on a meteorologist’s report that described an initial “significant snowfall event,” followed by continued snow, sleet, freezing rain, rain, and additional snow events over the next few days, the Superior Court agreed with the trial court that generally slippery conditions prevailed throughout the community. At deposition, the plaintiff denied being able to see any bumps and hills and ridges in the ice, as the ice was flat. The Superior Court concluded that there was a sufficient basis for the trial court to determine that the plaintiff failed to meet his burden under the Hills and Ridges Doctrine; thus, summary judgment was appropriate.
In a 2017 unpublished opinion in Neifert v. Speedway, LLC, 2017 Pa.Super. Unpub. LEXIS 3412 (Pa.Super. Sept. 14, 2017), the Superior Court again affirmed a trial court’s decision to grant summary judgment in favor of a property owner and against a plaintiff based on the Hills and Ridges Doctrine. The plaintiff fell when the general community experienced icy conditions but did not demonstrate that the accumulations were in elevations that unreasonably obstructed his travel.
Risk Transfer in New Jersey and Pennsylvania
Risk transfer is most commonly effectuated through indemnification provisions in snow removal contracts. New Jersey’s courts look at the contracts to determine if the language is clear and unambiguous. Contract language is strictly construed against the indemnitee, as the indemnitee is generally the party with the greater bargaining power and, therefore, the person with the greater interest in the indemnification provision. The law is clear that language must be included in the contract in order to be indemnified for negligent acts or omissions.
It is very common for snow removal companies in New Jersey to reserve a right to hire a snow removal subcontractor. It is very important for snow removal companies with indemnification provisions in their contracts with landowners to have identical provisions in their subcontracts. If they do not have the same provisions, they may be faced with a situation where they are forced to defend and indemnify the landowner for negligent acts, but are precluded from seeking reimbursement from the subcontractor because the subcontract contained a more narrow indemnification.
Much like in New Jersey, Pennsylvania’s courts look to the contract to determine the clear intent of the parties and require that the indemnified act be unambiguously identified in the indemnification provision. Courts also look at the type of negligent act—whether it is active or passive.
As an example of the active versus passive analysis, imagine that a landowner is responsible for clearing snow and ice from the sidewalk, and they hire a snow removal company to clear snow and ice from the parking areas. The snow removal contract contains an indemnification provision whereby the snow removal company agrees to indemnify the landowner for any and all negligent acts. On the date of loss, the plaintiff slips and falls on snow and ice that is in the parking lot. Through discovery it is learned that the snow removal company cleared the area of the fall before the incident occurred. After the parking lot was cleared, the landowner cleared the sidewalk and threw snow on the parking area, creating the dangerous condition. The landowner’s negligence is active. To cause the snow removal company to indemnify the landowner would be to make them the insurer. Therefore, the indemnification provision will not be enforced against the snow removal company.
Many snow removal contracts require that the indemnitor name the indemnitee as an additional insured on a general liability policy. As a practice point, the snow removal contract should be evaluated immediately after a loss is reported to determine if there is an additional insured requirement. If there is one, the full policy, including the additional insured endorsements, should be requested from the snow removal contractor. Given the sophistication of the contract drafters, there can be a complex interplay between the insurance requirements of the contract and the indemnification provisions of the contract. Having the full policy at the outset of the litigation will allow the defense team to fully evaluate risk transfer. For instance, in some policies there has to be a finding that the indemnitor is negligent before coverage is provided to the indemnitee. In this example, the case would have to be adjudicated before a coverage determination could be made.
With proper evaluation and planning, property owners can take the necessary steps to maximize risk transfer through clear and intentional snow removal contract drafting. When suits are filed, the available defenses should be used to protect property owners from unreasonable results. Snow, ice and the resultant claims are inevitable. Plan and prepare, then you will learn to stop worrying and love the winter weather. We leave you with the immortal genius of Irving Berlin:
Snow I’ll soon be there with snow
I’ll wash my hair with snow
And with a spade of snow
I’ll build a man that’s made of snow
I’d love to stay up with you but I recommend a little shuteye
Go to sleep . . .
And dream . . .
*Alex Norman is a shareholder in our Philadelphia, Pennsylvania office and can be reached at 215.575.3563 or firstname.lastname@example.org. Brielle Kovalchek is an associate in our Mt. Laurel, New Jersey office and can be reached at 856.414.6309 or email@example.com. Elyse Cohen is an associate in our Philadelphia office can be reached at 215.575.2792 or firstname.lastname@example.org.
Defense Digest, Vol. 24, No. 1, March 2018. 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. © 2018 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 email@example.com.