Haydee Gallardo v. Walmart
Opinion
SYLLABUS
This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Court and may not summarize all portions of the opinion.
Haydee Gallardo v. Walmart (A-65-24) (089466)
Argued November 5, 2025 -- Decided July 30, 2026
JUSTICE PATTERSON, writing for the Court.
In this appeal, the Court considers whether a snow removal measure undertaken by a contractor hired by defendant Walmart -- the application of salt to the surface of the parking lot during a storm without pretreating the lot before precipitation began -- created “unusual circumstances” within the meaning of the first exception to the ongoing storm rule. That exception, which was recognized in Pareja v. Princeton International Properties, applies if a commercial landowner’s actions “increase the risk to pedestrians and invitees on their property” by “creating ‘unusual circumstances’ where the defendant’s conduct exacerbates and increases the risk of injury to the plaintiff.” 246 N.J. 546, 559 (2021).
At around 1:30 p.m. on January 3, 2015, plaintiff Haydee Gallardo fell in the parking lot of Walmart’s Union Township store during an ongoing storm of mixed precipitation that had begun at around 11:30 a.m. Land Pros of New Jersey, LLC was the snow removal contractor for that store. At the time of plaintiff’s accident, there was minimal accumulation on the parking lot -- “about a trace” to one tenth of an inch. According to Land Pros’ co-owner, he arrived at the Walmart store at 12:35 p.m. and “spread salt” on the “lots and walks” until 1:15 p.m. He testified that when he visited the Walmart property, the snow had not accumulated sufficiently to warrant plowing the parking lot. It is undisputed that prior to the storm, Land Pros did not pretreat the parking lot with salt or another de-icing compound.
In October 2016, Gallardo filed this action alleging that Walmart acted in a negligent, careless, and/or reckless manner. Her designated expert in the field of snow and ice management opined that that when Gallardo slipped and fell, “there was a dangerously slippery condition that should have been pretreated with an application of ice melt.” The trial court granted summary judgment in favor of Land Pros but denied Walmart’s motion for summary judgment.
On June 10, 2021, the Court decided Pareja. Walmart then filed its second motion for summary judgment. The trial court denied summary judgment, finding that the first exception identified in Pareja governs this case. The court did not 1 mention the “unusual circumstances” requirement of Pareja; instead, under the court’s interpretation of Pareja, the exception would apply if a commercial landlord’s actions “increase the risk to pedestrians and invitees on their property.”
Following a five-day trial, the jury found Walmart negligent and determined that its negligence was the proximate cause of Gallardo’s fall. After molding the verdict to account for past medical expenses and awarding prejudgment interest, the trial court entered judgment in Gallardo’s favor in the amount of $1,328,658.59.
Walmart appealed, and the Appellate Division vacated the trial court’s judgment and remanded for a new trial. It held, however, that Walmart was not entitled to summary judgment, judgment at trial, or judgment notwithstanding the verdict because it found, addressing the first exception of Pareja, that there was a genuine issue of material fact as to “whether Walmart’s conduct . . . made the parking lot more dangerous on the day of the accident.”
The Court denied Gallardo’s petition for certification, 260 N.J. 553 (2025), and granted Walmart’s cross-petition, 260 N.J. 562 (2025).
HELD: A snow removal contractor’s spreading of salt on the minimal accumulation of snow at issue does not give rise to “unusual circumstances” warranting the imposition of a duty on a commercial landowner during an ongoing storm.
1. Writing that the dissent is substantially premised on two arguments that were not asserted by any party or amicus in this case and were not ruled upon by any trial judge or appellate court, the Court explains that it will address only the issue presented by this appeal: whether this matter falls within the first exception set forth in Pareja, 246 N.J. at 559. (pp. 21-24)
2. To establish her claim for negligence, Gallardo had the burden to prove (1) that defendant owed plaintiff a duty of care; (2) a breach of that duty by defendant; (3) an injury to plaintiff proximately caused by defendant’s breach; and (4) actual damages. This appeal centers on the first element, the defendant’s duty of care. In Pareja, the Court held “that commercial landowners do not have the absolute duty, and the impossible burden, to keep sidewalks on their property free from snow or ice during an ongoing storm.” Id. at 557. Pareja expressly adopted the ongoing storm rule, which it found consistent with New Jersey case law on sidewalk liability and snow removal. “Absent unusual circumstances,” the Pareja Court explained, “a commercial landowner’s duty to remove snow and ice hazards arises not during the storm, but rather within a reasonable time after the storm.” Id. at 558. Pareja then identified settings in which “unusual circumstances” warrant an exception to the ongoing storm rule, setting forth two exceptions. Id. at 558-59. The first exception -- the exception Gallardo invokes in this appeal -- applies if commercial landowners’ 2 actions “increase the risk to pedestrians and invitees on their property, for example, by creating ‘unusual circumstances’ where the defendant’s conduct ‘exacerbate[s] and increase[s] the risk’ of injury to the plaintiff.” Id. at 559. The second exception to the ongoing storm rule, irrelevant to this appeal, applies “where there was a pre- existing risk on the premises before the storm.” Ibid. (pp. 25-29)
3. The first exception to Pareja does not apply simply because a jury could determine that a commercial landowner’s remediation of snow and ice increases the risk to pedestrians and invitees on the property -- a construction that reads out the “unusual circumstances” requirement. Noting that Gallardo cited Model Civil Jury Charge 5.20B as contrary support, the Court explains that model charges are not binding authority and asks the Committee on Model Civil Jury Charges to review that 5.20B and align it with the language of Pareja. (p. 30)
4. The Rhode Island Supreme Court’s decision in Terry v. Central Auto Radiators, Inc., 732 A.2d 713 (R.I. 1999), cited in Pareja, illustrates the meaning of Pareja’s first exception. The “unusual circumstances” recognized in Terry arose when the plaintiff, who had left her car at an auto repair company during an ongoing storm, returned to find it “had been removed by one of the defendant’s employees to a rear lot some hundred feet distant.” Id. at 717. The defendant’s employee told the plaintiff to “go and get her vehicle” and advised her “to be careful of the accumulating snow and ice on the very portion of property that she was directed to use in walking the extended distance to her vehicle.” Ibid. The action by the commercial landowner that increased the risk of harm to the plaintiff in Terry was not a failed attempt to remove snow and ice as it accumulated during an ongoing storm, but rather the defendant’s direction to the plaintiff to traverse uncertain conditions to retrieve her vehicle. Id. at 717-18. Terry illustrates the Court’s intent to limit Pareja’s first exception to unusual settings.
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SYLLABUS
This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Court and may not summarize all portions of the opinion.
Haydee Gallardo v. Walmart (A-65-24) (089466)
Argued November 5, 2025 -- Decided July 30, 2026
JUSTICE PATTERSON, writing for the Court.
In this appeal, the Court considers whether a snow removal measure undertaken by a contractor hired by defendant Walmart -- the application of salt to the surface of the parking lot during a storm without pretreating the lot before precipitation began -- created “unusual circumstances” within the meaning of the first exception to the ongoing storm rule. That exception, which was recognized in Pareja v. Princeton International Properties, applies if a commercial landowner’s actions “increase the risk to pedestrians and invitees on their property” by “creating ‘unusual circumstances’ where the defendant’s conduct exacerbates and increases the risk of injury to the plaintiff.” 246 N.J. 546, 559 (2021).
At around 1:30 p.m. on January 3, 2015, plaintiff Haydee Gallardo fell in the parking lot of Walmart’s Union Township store during an ongoing storm of mixed precipitation that had begun at around 11:30 a.m. Land Pros of New Jersey, LLC was the snow removal contractor for that store. At the time of plaintiff’s accident, there was minimal accumulation on the parking lot -- “about a trace” to one tenth of an inch. According to Land Pros’ co-owner, he arrived at the Walmart store at 12:35 p.m. and “spread salt” on the “lots and walks” until 1:15 p.m. He testified that when he visited the Walmart property, the snow had not accumulated sufficiently to warrant plowing the parking lot. It is undisputed that prior to the storm, Land Pros did not pretreat the parking lot with salt or another de-icing compound.
In October 2016, Gallardo filed this action alleging that Walmart acted in a negligent, careless, and/or reckless manner. Her designated expert in the field of snow and ice management opined that that when Gallardo slipped and fell, “there was a dangerously slippery condition that should have been pretreated with an application of ice melt.” The trial court granted summary judgment in favor of Land Pros but denied Walmart’s motion for summary judgment.
On June 10, 2021, the Court decided Pareja. Walmart then filed its second motion for summary judgment. The trial court denied summary judgment, finding that the first exception identified in Pareja governs this case. The court did not 1 mention the “unusual circumstances” requirement of Pareja; instead, under the court’s interpretation of Pareja, the exception would apply if a commercial landlord’s actions “increase the risk to pedestrians and invitees on their property.”
Following a five-day trial, the jury found Walmart negligent and determined that its negligence was the proximate cause of Gallardo’s fall. After molding the verdict to account for past medical expenses and awarding prejudgment interest, the trial court entered judgment in Gallardo’s favor in the amount of $1,328,658.59.
Walmart appealed, and the Appellate Division vacated the trial court’s judgment and remanded for a new trial. It held, however, that Walmart was not entitled to summary judgment, judgment at trial, or judgment notwithstanding the verdict because it found, addressing the first exception of Pareja, that there was a genuine issue of material fact as to “whether Walmart’s conduct . . . made the parking lot more dangerous on the day of the accident.”
The Court denied Gallardo’s petition for certification, 260 N.J. 553 (2025), and granted Walmart’s cross-petition, 260 N.J. 562 (2025).
HELD: A snow removal contractor’s spreading of salt on the minimal accumulation of snow at issue does not give rise to “unusual circumstances” warranting the imposition of a duty on a commercial landowner during an ongoing storm.
1. Writing that the dissent is substantially premised on two arguments that were not asserted by any party or amicus in this case and were not ruled upon by any trial judge or appellate court, the Court explains that it will address only the issue presented by this appeal: whether this matter falls within the first exception set forth in Pareja, 246 N.J. at 559. (pp. 21-24)
2. To establish her claim for negligence, Gallardo had the burden to prove (1) that defendant owed plaintiff a duty of care; (2) a breach of that duty by defendant; (3) an injury to plaintiff proximately caused by defendant’s breach; and (4) actual damages. This appeal centers on the first element, the defendant’s duty of care. In Pareja, the Court held “that commercial landowners do not have the absolute duty, and the impossible burden, to keep sidewalks on their property free from snow or ice during an ongoing storm.” Id. at 557. Pareja expressly adopted the ongoing storm rule, which it found consistent with New Jersey case law on sidewalk liability and snow removal. “Absent unusual circumstances,” the Pareja Court explained, “a commercial landowner’s duty to remove snow and ice hazards arises not during the storm, but rather within a reasonable time after the storm.” Id. at 558. Pareja then identified settings in which “unusual circumstances” warrant an exception to the ongoing storm rule, setting forth two exceptions. Id. at 558-59. The first exception -- the exception Gallardo invokes in this appeal -- applies if commercial landowners’ 2 actions “increase the risk to pedestrians and invitees on their property, for example, by creating ‘unusual circumstances’ where the defendant’s conduct ‘exacerbate[s] and increase[s] the risk’ of injury to the plaintiff.” Id. at 559. The second exception to the ongoing storm rule, irrelevant to this appeal, applies “where there was a pre- existing risk on the premises before the storm.” Ibid. (pp. 25-29)
3. The first exception to Pareja does not apply simply because a jury could determine that a commercial landowner’s remediation of snow and ice increases the risk to pedestrians and invitees on the property -- a construction that reads out the “unusual circumstances” requirement. Noting that Gallardo cited Model Civil Jury Charge 5.20B as contrary support, the Court explains that model charges are not binding authority and asks the Committee on Model Civil Jury Charges to review that 5.20B and align it with the language of Pareja. (p. 30)
4. The Rhode Island Supreme Court’s decision in Terry v. Central Auto Radiators, Inc., 732 A.2d 713 (R.I. 1999), cited in Pareja, illustrates the meaning of Pareja’s first exception. The “unusual circumstances” recognized in Terry arose when the plaintiff, who had left her car at an auto repair company during an ongoing storm, returned to find it “had been removed by one of the defendant’s employees to a rear lot some hundred feet distant.” Id. at 717. The defendant’s employee told the plaintiff to “go and get her vehicle” and advised her “to be careful of the accumulating snow and ice on the very portion of property that she was directed to use in walking the extended distance to her vehicle.” Ibid. The action by the commercial landowner that increased the risk of harm to the plaintiff in Terry was not a failed attempt to remove snow and ice as it accumulated during an ongoing storm, but rather the defendant’s direction to the plaintiff to traverse uncertain conditions to retrieve her vehicle. Id. at 717-18. Terry illustrates the Court’s intent to limit Pareja’s first exception to unusual settings. Absent the “unusual circumstances” requirement, a court could impose a duty on a commercial landowner if that landowner or its contractor applies a de-icer such as salt during an ongoing storm or shovels the snow, but its efforts fail and a pedestrian or business invitee is injured. Such a rule would incentivize landowners and their contractors to forgo any remediation effort until a storm is over, thereby increasing the risk of injury to pedestrians and invitees. The Court declines to impose such a rule and instead reaffirms that the first Pareja exception includes an “unusual circumstances” requirement, in accordance with the opinion’s express terms. (pp. 31-35)
5. Construing the record of this case in the light most favorable to Gallardo, the Court finds no genuine issue of material fact as to whether “unusual circumstances” warranted an exception to the ongoing storm rule. Walmart was entitled to judgment dismissing plaintiff’s claims based on the ongoing storm rule. (pp. 35-36)
REVERSED. REMANDED for the entry of summary judgment. 3 JUSTICE FASCIALE, dissenting, expresses the view that the majority misinterprets Pareja’s first exception by adding an undefined “unusualness” requirement. Justice Fasciale writes that the two circumstances noted in Pareja -- increasing the risk and a pre-existing risk -- are themselves the “unusual circumstances” that reimpose a legal duty of reasonable care on the landowner during a storm; the risk-increasing conduct need not also be “unusual.” Justice Fasciale also states that it is error to apply Pareja’s framework to this case for two reasons: first, the Pareja Court adopted the ongoing storm rule and the “unusual circumstances” exception at the heart of this appeal six years after plaintiff’s 2015 accident, so the well-established principles of general negligence that governed prior to Pareja should govern here; and, second, the accident at issue here occurred in Walmart’s private parking lot, whereas the express focus of Pareja and the decades of precedent upon which it relied focused on public walkways. Justice Fasciale adds that summary judgment should not be granted given the unresolved disputed issues of fact in this case. Justice Fasciale would uphold the jury’s verdict.
CHIEF JUSTICE RABNER and JUSTICES PIERRE-LOUIS and WAINER APTER join in JUSTICE PATTERSON’s opinion. JUSTICE FASCIALE filed a dissent in which JUSTICES NORIEGA and HOFFMAN join.
4 SUPREME COURT OF NEW JERSEY A-65 September Term 2024 089466
Haydee Gallardo,
Plaintiff-Respondent,
v.
Walmart, Debra Lewis, Wal-Mart Stores, Inc., Union 22 Plaza, LLC, Wal-Mart Real Estate Business Trust, and Wal-Mart Stores East, L.P.,
Defendants-Appellants,
and
Land Pros of New Jersey, LLC,
Defendant.
On certification to the Superior Court, Appellate Division.
Argued Decided November 5, 2025 July 30, 2026
Matthew D. Vodzak argued the cause for appellants (Fowler Hirtzel McNulty & Spaulding, attorneys; Matthew D. Vodzak, of counsel and on the briefs).
Paul K. Caliendo argued the cause for respondent (Gill & Chamas, attorneys; Paul K. Caliendo, on the brief).
1 Evan J. Lide argued the cause for amicus curiae New Jersey Association for Justice (Stark & Stark, attorneys; Evan J. Lide, of counsel, and John C. Lowenberg, on the brief).
JUSTICE PATTERSON delivered the opinion of the Court.
In Pareja v. Princeton International Properties, this Court invoked
longstanding precedent to hold that unless a case presents “unusual
circumstances,” a commercial landowner’s duty to remove snow and ice from
its property does not arise during an ongoing storm, but instead arises only
within a reasonable time after the storm concludes. 246 N.J. 546, 558 (2021).
The Court identified two “unusual circumstances” warranting exceptions
to the ongoing storm rule. Id. at 559. The first exception that the Court
recognized in Pareja applies if a commercial landowner’s actions “increase the
risk to pedestrians and invitees on their property” by “creating ‘unusual
circumstances’ where the defendant’s conduct exacerbates and increases the
risk of injury to the plaintiff.” Ibid. (internal quotation and alterations
omitted).
In this matter, plaintiff Haydee Gallardo filed a negligence action against
defendants Wal-Mart Stores East, LP i/p/a Walmart, Wal-Mart Stores, Inc.,
and Wal-Mart Real Estate Trust (collectively, Walmart). She alleges that she
suffered serious injuries due to a fall in the parking lot of Walmart’s Union
2 Township store on January 3, 2015. According to Gallardo’s expert, at the
time of her accident, there was only a “trace” to one tenth of an inch of snow
and sleet on the surface of Walmart’s parking lot.
Gallardo contends that a snow removal measure undertaken by a
contractor hired by Walmart -- the application of salt to the surface of the
parking lot during the storm without pretreating the lot before precipitation
began -- created “unusual circumstances” warranting application of the first
exception to the ongoing storm rule.
We disagree. A snow removal contractor’s spreading of salt on the
minimal accumulation of snow at issue does not give rise to “unusual
circumstances” warranting the imposition of a duty on a commercial
landowner during an ongoing storm. Were we to recognize such a duty in the
unremarkable factual setting of this appeal, the exception would defeat the
purpose of the ongoing storm rule. We decline to depart from our precedent
regarding that rule.
Accordingly, we hold that the trial court erred when it denied Walmart’s
motion for summary judgment, its motions for judgment at trial, and its motion
for judgment notwithstanding the verdict. We reverse the Appellate Division’s
judgment remanding the matter to the trial court for a new trial and remand
3 this matter to the trial court for the entry of summary judgment in Walmart’s
favor.
I.
A.
We summarize the facts based on the complaint, the summary judgment
record, and the trial record.
On January 2, 2014, Wal-Mart Stores, Inc. and a snow removal contractor,
Land Pros of New Jersey LLC, entered into a Master Services Agreement for
the performance of work on certain Walmart properties. Although the Master
Services Agreement envisioned that specific work assignments to the
contractor would be defined in scope of work agreements, the record does not
contain a scope of work agreement defining Land Pros’ snow and ice removal
responsibilities. 1 It is undisputed, however, that on the date of Gallardo’s
accident, Land Pros was retained to conduct snow and ice removal in the
parking lot of Walmart’s Union Township Store. Indeed, Gallardo alleges that
on the date of her accident, Walmart and Land Pros “owned, controlled,
1 Land Pros and Walmart certified in discovery that they could not locate a scope of work agreement defining Land Pros’ snow and ice removal responsibilities. Walmart produced an exemplar agreement as representative of its scope of work agreements with its snow and ice removal contractors. That exemplar agreement provided that the contractor “shall remove snow and ice continuously before, during and after an Event until snow and ice is removed and bare pavement has been achieved.” 4 operated, inspected and/or maintained” the premises of Walmart’s store in
Union Township.
The record establishes that when Gallardo fell in the Walmart parking lot
at approximately 1:30 p.m. on January 3, 2015, there was an ongoing storm.
According to Gallardo’s expert in the field of forensic meteorology, Thomas
Else, it began to snow in Union at approximately 11:30 a.m. on January 3,
2015. Else testified that at 1:00 p.m., “there was still some snow falling but it
was sleet and rain mixed in,” and that between 11:30 a.m. and 5:00 p.m. there
was continuous precipitation.
The record also makes clear that at the time of plaintiff’s accident, there
was minimal accumulation on the parking lot. Else testified that “[a]t 1:30,
around the time of the incident,” the accumulation amounted to “about a trace”
to one tenth of an inch, which “is the smallest amount that you can measure
with a ruler that we do for snow and sleet accumulation.”
According to Land Pros’ co-owner, John Fierro, who testified based on a
Land Pros service record, he arrived at the Walmart store at 12:35 p.m. on
January 3, 2015, and “spread salt” on the “lots and walks” until 1:15 p.m. He
testified that when he visited the Walmart property, the snow had not
accumulated sufficiently to warrant plowing the parking lot. It is undisputed
5 that prior to the storm, Fierro did not pretreat the parking lot with salt or
another de-icing compound.
At 1:30 p.m., approximately fifteen minutes after Fierro finished salting
the parking lot and sidewalks, Gallardo, driven by her son, arrived at Walmart
to purchase Tylenol for her grandson. She testified that when she and her son
walked from her car toward the Walmart store, the parking lot surface “had
white areas and dark areas,” but “was very slushy.” She said that she was
“looking straight ahead, being very careful because it was very slushy.”
Gallardo testified, “I don’t know what, I just slipped and fell. I lost my
balance, I couldn’t catch it. So, my -- my right leg went under my left leg, I
landed on my butt on my right side.” Asked by her counsel at trial why she
fell, Gallardo testified that she fell because of “[t]he slushy ice, snow.”
Gallardo stated that immediately after her fall, she could not get up on her
own, so her son assisted her, and they went into the store and made their
purchase.
Gallardo alleges that due to her fall, she hurt her lower back and sustained
other injuries.
6 B.
1.
On October 31, 2016, Gallardo filed this action. Gallardo alleged that
Walmart acted in a negligent, careless, and/or reckless manner. Wal-Mart
Stores East, L.P. filed a third-party complaint against Land Pros, alleging
breach of contract and seeking contribution and common-law indemnification.
In an amended complaint, Gallardo asserted a direct action against Land Pros
and named additional defendants.
In addition to Else, her meteorology expert, and a medical expert to opine
on her injuries, Gallardo designated J. Nelson Wiest as an expert in the field of
snow and ice management. Wiest adopted Else’s opinions, including his
opinion that when Gallardo fell, the snow accumulation was estimated to be
between a trace and one tenth of an inch. Among other opinions regarding the
alleged negligence of Walmart and Land Pros, Wiest opined that when
Gallardo slipped and fell, “there was a dangerously slippery condition that
should have been pretreated with an application of ice melt,” and that “[t]his
slippery condition was due to existing slippery conditions in the area.”
Land Pros moved for summary judgment. Citing Bodine v. Goerke Co.,
102 N.J.L. 642, 643-44 (E. & A. 1926), and other authority, the trial court held
that “the reasonable time in which a commercial property owner must act to
7 clear snow and ice from public walkways does not begin until after the storm
ends.” The court accordingly granted Land Pros’ motion for summary
judgment.
Walmart then filed its first motion for summary judgment. The trial court
denied the motion. 2
On June 10, 2021, this Court decided Pareja. In the wake of that decision,
Walmart filed its second motion for summary judgment. Walmart argued that
it owed no duty to clear snow and ice before the storm ended and noted that
there was no dispute that the storm was ongoing when Gallardo fell. Walmart
also asserted that under the law of the case doctrine, because Land Pros was
found not to have been negligent and was granted summary judgment,
Gallardo’s claim -- premised on Land Pros’ allegedly negligent removal of
snow and ice from the store parking lot -- should be dismissed on summary
Gallardo argued that Pareja did not compel the grant of summary
judgment in this case. She maintained that Walmart voluntarily assumed a
duty to conduct snow removal during an ongoing storm by virtue of its
2 The record does not reveal the trial court’s reasoning in denying Walmart’s first motion for summary judgment. The trial court’s denial of that motion is not challenged in this appeal.
8 contract with Land Pros and its exemplar scope of work’s mandate that the
contractor remove snow and ice continuously before, during, and after a storm.
Gallardo also noted that although this Court in Pareja granted Walmart
“absolute immunity” whether an ongoing storm is major or minor, it also
created an exception that applies if the defendant “does something that under
the circumstances makes the condition worse” or “creates a condition.” She
asserted that because Land Pros applied salt to accumulated snow without
pretreating the parking lot, this case fits within Pareja’s first exception.
The trial court agreed with Gallardo’s argument that the first exception
identified in Pareja governs this case. The court did not mention the “unusual
circumstances” requirement of Pareja; instead, under the court’s interpretation
of Pareja, the exception would apply if a commercial landlord’s actions
“increase the risk to pedestrians and invitees on their property.” The court
found a “genuine issue of fact as to whether [Walmart’s] contractor’s failure to
pretreat the parking lot and then spreading an ice-melting agent on the ground
surface after some snow fell created a risk to pedestrians and business
invitees.” The trial court denied summary judgment. 3
3 The trial court acknowledged Walmart’s argument that its contract with Land Pros could not afford Gallardo a cause of action given her failure to allege that she was a beneficiary of that contract, calling that argument “logical.” The court stated, however, that Walmart’s motion “relies solely on the ongoing storm rule.” 9 The case was tried before a jury for five days. Gallardo, her husband, and
her daughter testified about the circumstances of the accident and Gallardo’s
injuries. Gallardo presented the deposition testimony of current and former
Walmart representatives. She relied on her expert witnesses, Else and Wiest,
and a medical expert addressing damages.
In his trial testimony, Wiest stated that when Fierro “put salt and
apparently not enough salt to melt it all because we have the pictures of what
the result was, when he put the salt down,” he threw it “on top of the snow and
that snow melts and runs down and when it hits that cold untreated surface it
becomes black ice.” Wiest asserted that Fierro “essentially exacerbated the
condition by throwing water on it, which is what he did,” and that Fierro
“increased the risk.” Wiest also reiterated his opinion that Land Pros’ failure
to “pretreat before accumulation started” contributed to Gallardo’s fall.
After Gallardo rested her case, the trial court denied Walmart’s motion for
judgment at trial pursuant to Rule 4:40-1, finding Gallardo’s evidence
sufficient to warrant denial of that motion.
Walmart presented the testimony of Fierro, a Walmart assistant manager,
and expert witnesses addressing Gallardo’s claim for damages. At the close of
the evidence, Walmart again moved for judgment pursuant to Rule 4:40-1, and
the trial court denied the motion.
10 At the charge conference, Walmart submitted to the trial court a jury
instruction based on the first exception prescribed in Pareja, 246 N.J. at 559.
The charge that Walmart proposed would have directed the jury to determine
whether Land Pros’ application of an ice melting agent during a snowstorm
gave rise to an unusual circumstance that increased the risk of injury to
pedestrians such as Gallardo.
Because the dissent suggests that the trial court declined to charge the
jury on Pareja because Pareja was decided before Gallardo’s accident, see post
at ___ (slip op. at 17-18, 21, 35-39), we present in detail the court’s discussion
of the charge with counsel for the parties.
In response to Walmart’s request for a Pareja charge, the trial court
commented that “[t]here are many doctrines laid down by the Supreme Court
that are applied,” but “none of them have their own jury charge.” Gallardo
opposed the proposed charge without explaining the reason for that position.
Walmart stated that the court had denied summary judgment on the Pareja
question because it was a question of fact and added that the jury should be
told about Pareja because “that is the law right now.”
The trial court commented that “the question of fact in this case is not --
it was prior to the Supreme Court ruling,” and that under case law “going back
to the 40s, if you do something to make the conditions, you’re liable. And
11 there is no special charges to that.” The court stated that prior to Pareja, there
had been no jury charge; rather, “It’s simply if you find them negligent. In
other words, if the jury finds that Walmart undertook the obligation to clear it
and didn’t do it properly, making conditions worse, that’s what it is.” Gallardo
responded that when Bodine “was the controlling law,” there was “no charge
given to the jury that if you believed there was an ongoing storm, they had no
duty.” The court added that “the only difference” Pareja created “is that
there’s no absolute duty to do anything if there’s an ongoing storm. There --
but the -- law was always, before that and continued to be, that if you choose
to do something, you better do it right.”
The trial court suggested, as an alternative to a jury charge based on
Pareja, a post-verdict jury interrogatory intended to elicit the jury’s views as to
whether Walmart or an entity on its behalf had salted the parking lot prior to
Gallardo’s arrival, which would be followed by a motion for judgment
notwithstanding the verdict if the jury concluded that Walmart did not apply
salt. After considering the comments of counsel, the court abandoned that
suggestion.
The trial court then stated that its objection to Walmart’s proposed
Pareja charge was that “if I use your charge, I’ve got to tell them to -- ask the
jury first, was there a continuing storm, yes or no?” The court added that it
12 would then have to ask the jury, “[i]f there was a continuing storm, did
Walmart undertake actions despite the continuing storm, yes or no?” The trial
court observed,
the Supreme Court didn’t change the law, by the way. The exception existed prior to the law. The exception was basically, if you undertake -- they made it an exception but it was the law before. And if you undertake to do something -- you know, you go out and shovel your sidewalk and you do a bad job and you weren’t obligated to shovel your sidewalk, you created a liability for yourself. You know, it’s -- it’s the old maxim. You -- have no obligation to do it, but if you do it, you better make sure you do it right because you’ve now created -- you’ve undertaken a duty you didn’t have to do.
The trial court stated its understanding that under Pareja, commercial
landowners, lessees, and contractors “have no absolute duty to go out and do
something during a continuing storm,” but “there’s already all this law in place
that says if you go out and do it, you’d better make sure you do it right because
now you’ve undertaken the duty.” The court further commented that “the way
I read Pareja” is “that’s an issue for summary judgment. If there’s a
continuing storm, you get out on” summary judgment.
The trial court’s jury charge on the question of liability, premised on
general principles of negligence, did not mention the ongoing storm rule.
13 The following day, after the trial court instructed the jury, Walmart
again objected to the court’s decision not to charge the jury regarding Pareja.
Gallardo responded,
with respect to what occurred prior to Pareja, when, -- when we would rely upon Bodine, which was the, essentially, the absolute defense if an ongoing storm, was alleged, there wouldn’t be a charge with respect to ongoing storm or issues like that. It would be charged as regular negligence, as the court did in this case.
Gallardo also argued that in Pareja, “the issue was one of duty, and it is
an issue as a matter of law,” and that “that’s an issue of fact which has already
been addressed in this case.” Gallardo observed that Walmart’s motion for
summary judgment on Pareja “was already denied by this trial court.”
Stating that Pareja was “a recent Supreme Court decision” that was not
yet the subject of a model jury charge, the trial court commented that Pareja
“deals not with what happens at a trial before a jury,” but requires only that if
“there’s no question of fact that there’s an ongoing storm and the defendant
undertook no action,” then as a matter of law, the defendant would not be
liable. The trial court added:
This case is not Pareja. This case is dealing with the fact that Walmart, the defendant in this case, the allegations of fact for the jury to decide are that Walmart undertook an action. And whether or not they did that action properly causing, to worsening of the situation -- situation and causing, resulting damages is
14 a question of fact for the jury to decide under regular negligence as in a pre-Pareja case.
The trial court commented that it understood Walmart’s objection to its
decision not to give the Pareja charge, “but I’m not going to charge the jury as
to it because it -- it would bring confusion into the jury in the Court’s view.”
The jury found Walmart negligent and determined that its negligence was
the proximate cause of Gallardo’s fall. It awarded Gallardo $500,000 for pain
and suffering, $213,000 for past medical expenses, and $414,000 for future
medical expenses, for a total verdict of $1,127,000.
Walmart moved for judgment notwithstanding the verdict pursuant to Rule
4:40-2(b); for a new trial pursuant to Rule 4:49-1; and for a remittitur. The
trial court denied Walmart’s motions, again viewing Pareja to govern only
cases in which a commercial landowner takes no action to remove snow or ice,
not cases like this one, in which a commercial entity attempted -- by having a
contractor apply a de-icer -- to remove snow and ice from the parking lot.
After molding the verdict to account for past medical expenses and
awarding prejudgment interest, the trial court entered judgment in Gallardo’s
favor in the amount of $1,328,658.59.
2.
Walmart appealed the trial court’s decisions denying its motions for
summary judgment, judgment at trial, and judgment notwithstanding the 15 verdict. Walmart argued that Pareja precluded the imposition of a duty to
remove snow and ice during the ongoing storm on the day of Gallardo’s
accident and that, in the absence of unusual circumstances, neither exception
to the ongoing storm rule recognized in Pareja applied to this case. Walmart
further contended that the trial court erred when it declined to charge the jury
regarding the ongoing storm rule. 4
Gallardo countered that the trial court properly ruled that the ongoing
storm rule set forth in Pareja did not preclude the imposition of a duty because
Walmart directed its contractor to conduct snow removal during the storm.
She argued that Walmart voluntarily imposed a duty on itself by instructing
contractors in its exemplar scope of work to remove snow before, during, and
after storms.
The Appellate Division agreed with Walmart that the trial court
committed error when it declined to instruct the jury regarding the ongoing
storm rule. The appellate court stated, “[w]e part ways with the judge’s view
that charging the jury on the [ongoing storm] doctrine would have confused
4 Walmart also argued before the Appellate Division that the trial court should have granted summary judgment because it had granted summary judgment to Land Pros; that the court should have excluded the testimony of Gallardo’s snow removal expert on the ground that he rendered a net opinion; and that the trial court improperly declined Walmart’s request for a remittitur, thus allowing Gallardo to be awarded a windfall. 16 them.” The Appellate Division held that the trial court should have asked the
jury to determine whether this case fit into either of the exceptions to the duty
recognized in Pareja -- exceptions the appellate court viewed to be “clear” and
“not beyond the ken of the average juror.” The Appellate Division therefore
vacated the trial court’s judgment and remanded for a new trial, directing the
trial court to instruct the jury using Model Jury Charges (Civil), 5.20B,
“Liability for Defects in Public Streets and Sidewalks: Liability of Owner of
Commercial Property for Defects, Snow and Ice Accumulation and Other
Dangerous Conditions in Abutting Sidewalks” (rev. Nov. 2022).
The Appellate Division, however, held that Walmart was not entitled to
summary judgment, judgment at trial, or judgment notwithstanding the verdict.
Addressing the first exception of Pareja, the court held that there was a
genuine issue of material fact as to “whether Walmart’s conduct, through its
contractor Land Pros, made the parking lot more dangerous on the day of the
accident.” The appellate court viewed “the question of whether spreading salt
on snow during the storm was an unusual circumstance increasing or
exacerbating the risk” to be a disputed issue warranting a jury determination.
It rejected Walmart’s remaining arguments.
17 3.
Gallardo filed a petition for certification, challenging the Appellate
Division’s decision vacating the trial court’s judgment and remanding for a
new trial. We denied Gallardo’s petition for certification. 260 N.J. 553
(2025).
Walmart filed a cross-petition, arguing that (1) under Pareja, a commercial
landowner’s performance of normal snow removal operations during an
ongoing storm does not give rise to “unusual circumstances” warranting
application of the first exception to the ongoing storm rule; and (2) given the
trial court’s grant of summary judgment to Land Pros, Walmart cannot be held
liable for Land Pros’ conduct of snow removal. We granted Walmart’s cross-
petition for certification. 260 N.J. 562 (2025).
We granted amicus curiae status to the New Jersey Association for Justice
(NJAJ).
II.
Walmart argues that the first exception to the ongoing storm rule in
Pareja, 246 N.J. at 558-59, does not apply unless the commercial landowner’s
actions give rise to “unusual circumstances” increasing the risk of injury, and
that salting a parking lot in a snowstorm does not rise to the level of “unusual
circumstances.” Walmart asserts that if commercial landowners could be held
18 liable for ordinary snow removal activities during an ongoing storm, they
would have a compelling incentive not to shovel, apply salt, or otherwise
remediate the conditions until after the storm has ended.
Gallardo urges us to affirm the Appellate Division’s holding that genuine
issues of material fact regarding the application of the first exception of Pareja
preclude summary judgment. Citing Model Civil Jury Charge 5.20B, which
does not include the “unusual circumstances” language of Pareja, Gallardo
argues that the first exception in Pareja applies in any setting in which a
commercial property owner, during an ongoing storm, conducts snow removal
procedures that increase the risk of injury.
NJAJ interprets Pareja to hold that the ongoing storm rule does not shield
from liability commercial landowners who engage in conduct during the storm
that enhances the risk of harm. In NJAJ’s view, Pareja precludes the
imposition of a duty only when landowners choose to do nothing during a
snowstorm or conduct snow remediation using due care.
III.
“[I]n construing the law -- whether the common law or a statute -- our
review is de novo,” and we need not defer to the interpretive conclusions of
the trial court or Appellate Division. Qian v. Toll Bros., Inc., 223 N.J. 124,
19 135 (2015) (quoting Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584
(2012)); accord State in Int. of A.B., 219 N.J. 542, 554-55 (2014).
When we review a trial court’s grant or denial of a summary judgment
motion, we apply the same standard that governs the trial court’s
determination. In re Est. of Jones, 259 N.J. 584, 594 (2025). In accordance
with Rule 4:46-2(c), an appellate court decides “whether the competent
evidential materials presented, when viewed in the light most favorable to the
non-moving party, are sufficient to permit a rational factfinder to resolve the
alleged disputed issue in favor of the non-moving party.” Padilla v. Young Il
An, 257 N.J. 540, 547 (2024) (quoting Brill v. Guardian Life Ins. Co. of Am.,
142 N.J. 520, 540 (1995)).
The standard for determining a motion for judgment under Rule 4:40-1
and the standard for determining a motion for judgment notwithstanding the
verdict under Rule 4:40-2 are the same: “the court must accept as true all the
evidence which supports the position of the party defending against the motion
and must accord that party the benefit of all legitimate inferences which can be
deduced therefrom,” and it must deny the motion “if reasonable minds could
differ.” Pressler & Verniero, Current N.J. Court Rules, cmt. 1 to R. 4:40-1 and
-2 (2026); see also Dolson v. Anastasia, 55 N.J. 2, 5 (1969); Velazquez ex rel.
Velazquez v. Jiminez, 336 N.J. Super. 10, 30-31 (App. Div. 2000).
20 B.
The dissent is substantially premised on two arguments that were not
asserted by any party or amicus in this case and were not ruled upon by any
trial judge or appellate court. In a matter litigated for more than a decade, in
which the parties and amicus are represented by seasoned counsel, those two
arguments are asserted -- for the first and only time -- in the dissent.
First, the dissent contends that Pareja should not govern this appeal
because the accident in this matter occurred prior to the Court’s decision in
that case. Post at ___ (slip op. at 6-9, 32-35).
Neither party shares the dissent’s view that Pareja does not govern this
case because of the timing of that decision. Walmart has consistently
maintained that Pareja applies to this case. Gallardo vehemently agrees. In
her opposition to Walmart’s petition for certification, she urged this Court not
to accept Walmart’s argument that it is entitled to summary judgment because
its contractor, Land Pros, was granted summary judgment. In that argument,
Gallardo made abundantly clear her position that Pareja -- not prior law
addressing duties during ongoing storms -- provides the standard for this case.
Gallardo wrote:
Land Pros was granted summary judgment on July 1, 2019; nearly nine months prior to the Appellate Division holding in Pareja v. Princeton Int’l Props., 363 N.J. Super. 231 (App. Div. 2020), which was decided 21 on April 9, 2020, and almost two years prior to the Supreme Court’s Decision in Pareja v. Princeton Int’l Props., 246 N.J. 546 (2021). The basis for the Trial Court’s grant of summary judgment to Land Pros turned on the then-controlling caselaw espoused by Bodine v. Goerke Co.. 102 N.J.L. 642 (E. & A. 1926). As this Court is undoubtedly aware, its holding in Pareja v. Int’l Props., 246 N.J. 546 (2021) supersedes the holding of Bodine.
After criticizing Walmart for relying on the grant of summary judgment
to Land Pros before Pareja was decided, Gallardo added that “the law of the
case as it existed at the time Land Pros was granted summary judgment in July
2019, prior to Pareja, is not the same law that is now applicable on remand
from the Appellate Division.” Gallardo invoked “the drastic change in the
caselaw guiding the responsibility of commercial landowners during a
snowstorm event since 2019” and reminded this Court that the Appellate
Division “agreed that the holding of Pareja applies to this litigation.”
Accordingly, the dissent’s argument that Pareja does not provide the
governing law because it was decided after Gallardo’s accident directly
contravenes the positions of both parties, and raises an issue that no court in
this case has determined. 5
5 As noted above, see supra at pp. 11-15, the trial court’s decision not to charge the jury regarding Pareja -- and to charge general negligence principles instead -- was based on (1) the court’s view that Pareja applies only to cases in which commercial landowners take no action during an ongoing storm, not to cases in which they conduct snow and ice removal; (2) its view that Pareja 22 Second, the dissent asserts that Pareja’s reach is confined to cases
involving accidents on sidewalks, not cases arising from accidents in private
parking lots such as the parking lot at issue here. Post at ___ (slip op. at 9-10,
32-35, 39-43). That contention is also raised for the first time by the dissent.
Neither Gallardo nor Walmart argued such a position before the two trial
judges who considered this case, before the Appellate Division, or before this
Court. Instead, they agree that Pareja provides the governing law. Their
dispute concerns the application of Pareja to this specific case. 6 And
consistent with the positions of the parties, none of the courts that heard this
case have premised their rulings on any contention that Pareja does not provide
presents an issue for summary judgment, not for trial; and (3) its view that charging the jury with respect to Pareja would be confusing. The dissent nonetheless contends that the trial court’s decision not to charge the jury regarding Pareja related to the fact that Gallardo’s accident occurred prior to the Pareja decision. Post at ___ (slip op. at 17-18, 21, 35-39). The court’s decision to reject the charge had nothing to do with the timing of Pareja. 6 Parties -- not amici curiae -- frame the issues in an appeal. State v. Patel, 264 N.J. 80, 96-97 (2026). For the sake of completeness, however, we note that the sole amicus curiae who appears in this matter, the NJAJ, made no claim that Pareja does not govern here because of the timing of that decision, or that Pareja does not apply because Gallardo’s fall occurred in a parking lot, not on a public sidewalk. Instead, the NJAJ cites Pareja as the governing law and addresses the question before the Court: whether Pareja’s first exception applies in the factual setting of this appeal.
23 the governing law either because of its timing or because Gallardo’s accident
occurred in a parking lot rather than on a public sidewalk.
“[T]he ‘rule that points not argued will not be considered’ []
distinguishes our adversarial system of justice from an inquisitorial one.”
Margolin v. Nat’l Ass’n of Immigr. Judges, 608 U.S. ___, ___ (2026) (slip op.
at 3) (quoting United States v. Burke, 504 U.S. 229, 246 (1992) (Scalia, J.,
concurring in judgment)). Our appellate courts limit their rulings to the issues
raised by the parties for compelling reasons. That practice furthers essential
principles of consistency, fairness, and judicial economy, and we follow it
today.
We do not respond to the dissent’s contentions that are not part of this
case, and address only the issue presented by this appeal: whether this matter
falls within the first exception set forth in Pareja, 246 N.J. at 559. 7
C.
7 In addition, the dissent challenges the Appellate Division’s decision to vacate the trial court’s judgment and remand this matter for a new trial on the ground that the jury charge was improper, and states that it would “uphold the jury verdict” in this case. Post at ___ (slip op. at 10-11, 35-39). Because this Court denied Gallardo’s petition for certification, in which she asked the Court to reverse the Appellate Division’s decision vacating the judgment in her favor, the jury charge issue addressed by the Appellate Division is not part of this appeal. See 260 N.J. at 553. 24 To establish her claim for negligence, Gallardo had the burden to prove
(1) that defendant owed plaintiff a duty of care; (2) a breach of that duty by
defendant; (3) an injury to plaintiff proximately caused by defendant’s breach;
and (4) actual damages. Townsend v. Pierre, 221 N.J. 36, 51 (2015). This
appeal centers on the first element, the defendant’s duty of care.
As this Court has observed, “[d]etermining the scope of tort liability has
traditionally been the responsibility of the courts.” Hopkins v. Fox & Lazo
Realtors, 132 N.J. 426, 439 (1993). “Whether a person owes a duty of
reasonable care toward another turns on whether the imposition of such a duty
satisfies an abiding sense of basic fairness under all of the circumstances in
light of considerations of public policy.” Ibid. “Whether, in a given context,
‘a duty to exercise reasonable care to avoid the risk of harm to another exists is
[a question] of fairness and policy that implicates many factors.’” Holm v.
Purdy, 252 N.J. 384, 402 (2022) (alteration in original) (quoting Coleman v.
Martinez, 247 N.J. 319, 337 (2021)).
In Pareja, we applied those principles to find that the defendant
commercial landowner owed no duty of care to the plaintiff, who fell on ice on
the defendant’s property. 246 N.J. at 554-60. There, an overnight “wintry mix
of light rain, freezing rain, and sleet” had fallen; at the time of the plaintiff’s
accident, “‘light rain and pockets of freezing rain were falling,’ and the
25 temperature was about thirty-two to thirty-three degrees.” Id. at 549. The
defendant could not recall whether its landscaping contractor had been
summoned to address the icy conditions on its property. Id. at 550. There was
no dispute that the accident took place during an ongoing storm. Id. at 549.
The trial court found in Pareja that the defendant had no duty to clear the
accumulated precipitation while the storm was still underway. Id. at 551. The
Appellate Division reversed, holding that “a commercial landowner has a duty
to take reasonable steps to render a public walkway abutting its property --
covered by snow or ice -- reasonably safe, even when precipitation is falling.”
Pareja v. Princeton Int’l Props., 463 N.J. Super. 231, 251 (App. Div. 2020).
We granted the defendant’s petition for certification and reversed the
Appellate Division’s determination. 246 N.J. at 554-60.
We relied in Pareja on the opinion of the Court of Errors and Appeals
nearly a century before in Bodine, 102 N.J.L. at 642-44. There, the plaintiff
“fell or slipped at the entrance or lobby of the defendant’s” Newark store
during a storm that left an accumulation of “slushy” and “sloppy”
precipitation. Id. at 642-43. The Court of Errors and Appeals distinguished
the case before it from Cooper v. Reinhardt, 91 N.J.L. 402, 403-404 (Sup. Ct.
1918), in which “ice was allowed to remain on the steps of the defendant’s
hotel for three and one-half hours after the snow had stopped falling.” Bodine,
26 102 N.J.L. at 643. The court found, in the ongoing storm setting, no
inferences from the facts in the record “that could or ought to justify a jury in
finding” that the defendant was negligent. Id. at 644. 8
In Pareja, we acknowledged case law addressing a commercial
landowner’s duty to act “in a reasonably prudent manner under the
circumstances to remove or reduce the hazard” of ice and snow within a
reasonable time after a storm’s conclusion. 246 N.J. at 555-56 (quoting Mirza
v. Filmore Corp., 92 N.J. 390, 393-400 (1983), and also discussing Qian, 223
N.J. at 130, 136; Stewart v. 104 Wallace St., Inc., 87 N.J. 146, 155-57 (1981)).
We noted, however, that “those cases discuss the imposition of a duty on
commercial landowners to remove snow and ice only after the cessation of the
hazardous precipitation,” and that “none opine on the imposition of a duty
before that point, which is the crux of this appeal.” Id. at 556.
Citing “the limiting principles established in our precedent,” we held
“that commercial landowners do not have the absolute duty, and the impossible
burden, to keep sidewalks on their property free from snow or ice during an
8 As we noted in Pareja, 246 N.J. at 555, the setting of Bodine contrasted with that of Saco v. Hall, 1 N.J. 377, 381 (1949), in which the defendant had constructed a water removal system that malfunctioned and caused the hazard that the plaintiff encountered, and with Davis v. Pecorino, 69 N.J. 1, 4 (1975), in which the owner’s decision to allow motor vehicles to traverse the sidewalk created the dangerous condition. 27 ongoing storm.” Id. at 557. We explained the premise of the rule: that it is
“categorically inexpedient and impractical to remove or reduce hazards from
snow and ice while the precipitation is ongoing.” Id. at 558. As we stated,
[o]ur precedent makes clear, and we reiterate today, that absent unusual circumstances, a commercial landowner’s duty to remove snow and ice hazards arises not during the storm, but rather within a reasonable time after the storm. Given the unreasonableness of removing the accumulation of snow and ice while a storm is ongoing, adopting the ongoing storm rule today is consistent with our case law on sidewalk liability and snow removal.
[Id. at 558 (citing Qian, 223 N.J. at 135-36; Mirza, 92 N.J. at 395-96; Stewart, 87 N.J. at 157; Bodine, 102 N.J.L. at 644).]
We noted that our holding “aligns us with the majority rule and ten other
states that have adopted the ongoing storm rule.” Id. at 558 (citing Dixon v.
HC Equities Assocs., LP, 241 N.J. 132, 135 (2020) (Albin, J. dissenting)).
We reasoned in Pareja that although “commercial landowners do not
have a duty to remove the accumulation of snow and ice” until a storm is over,
“unusual circumstances may give rise to a duty before then.” Ibid. We
therefore identified settings in which “unusual circumstances” warrant an
exception to the ongoing storm rule. Id. at 558-59.
We held that the first exception -- the exception Gallardo invokes in this
appeal -- applies if commercial landowners’ actions “increase the risk to
28 pedestrians and invitees on their property, for example, by creating ‘unusual
circumstances’ where the defendant’s conduct ‘exacerbate[s] and increase[s]
the risk’ of injury to the plaintiff.” Id. at 559 (quoting Terry v. Cent. Auto
Radiators, Inc., 732 A.2d 713, 717-18 (R.I. 1999)).
We recognized a second exception to the ongoing storm rule, irrelevant
to this appeal, which applies “where there was a pre-existing risk on the
premises before the storm.” Ibid. We noted, as an example of that second
exception, that “if a commercial landowner failed to remove or reduce a pre-
existing risk on the property, including the duty to remove snow from a
previous storm that has since concluded, he may be liable for an injury during
a later ongoing storm.” Ibid.
We stated in Pareja that our holding “does not preclude a jury from
hearing questions of fact such as, but not limited to, when the storm concluded
or whether the accumulation of snow or ice was from a previous storm.” Ibid.
D.
We determine whether the first exception to the ongoing storm rule
recognized in Pareja applies in the setting of this appeal.
29 Contrary to the contentions of the trial court and Gallardo and the view
expressed in the dissent, post at ___ (slip op. at 29-32), the first exception to
Pareja does not apply any time a jury could determine that a commercial
landowner’s remediation of snow and ice increases the risk to pedestrians and
invitees on the landowner’s property. See ibid. That construction of Pareja
reads the “unusual circumstances” requirement out of the decision. 9
That requirement, however, is an integral component of the Court’s
holding, not mere verbiage that courts and counsel are free to ignore. See
Pareja, 246 N.J. at 557-59. The term “unusual circumstances” appears in two
parts of the opinion: in the Court’s statement that the ongoing storm rule
precludes the imposition of a duty “absent unusual circumstances”; and in the
Court’s description of the two exceptions in which “unusual circumstances”
may be found. Ibid. Under Pareja, a court should not impose on commercial
9 We do not concur with Gallardo that the omission of the term “unusual circumstances” from Model Civil Jury Charge 5.20B supports her argument that the first Pareja exception can be established absent such circumstances. The Model Civil Jury Charges are valuable aids created by the Model Civil Jury Charge Committee to assist judges and litigants, “but they ‘are not binding authority.’” Graphnet, Inc. v. Retarus, Inc., 250 N.J. 24, 40 (2022) (quoting State v. Bryant, 419 N.J. Super. 15, 28 (App. Div. 2011)). If a model charge is inconsistent with governing case law, it should be amended to conform to that law. See ibid. We ask the Committee on Model Civil Jury Charges to review the model ongoing storm jury charge -- Model Civil Jury Charge 5.20B -- and align it with the language of Pareja. 30 landowners a duty to remove snow and ice during an ongoing storm unless it
finds that the defendant’s actions gave rise to “unusual circumstances.”
The Rhode Island Supreme Court’s decision in Terry, cited in Pareja,
illustrates the meaning of Pareja’s first exception. The “unusual
circumstances” recognized in Terry arose “when the plaintiff, who in early
winter dusk and during an ongoing storm, had returned to pick up her
automobile at a place where she had originally left it [on the premises of the
defendant auto repair company], she found that it was no longer there.” Terry,
732 A.2d at 717. The automobile “had been removed by one of the
defendant’s employees to a rear lot some hundred feet distant.” Ibid. The
defendant’s employee told the plaintiff to “go and get her vehicle” and advised
her “to be careful of the accumulating snow and ice on the very portion of
property that she was directed to use in walking the extended distance to her
vehicle.” Ibid. The Rhode Island Supreme Court reasoned that although the
plaintiff “subjected herself to the risk of falling on the snow and ice” when she
chose to retrieve her vehicle during a snowstorm, the defendant “exacerbated
and increased the risk of the plaintiff’s falling when it required her to walk
some one hundred additional feet over snow and ice that had been
accumulating on unknown and difficult terrain.” Id. at 717-18. Thus, in Terry,
the action by the commercial landowner that increased the risk of harm to the
31 plaintiff was not a failed attempt to remove snow and ice as it accumulated
during an ongoing storm, but rather the defendant’s direction to the plaintiff to
traverse uncertain conditions to retrieve her vehicle. Ibid. Terry thus
illustrates this Court’s intent to limit Pareja’s first exception to unusual
settings. See Pareja, 246 N.J. at 559. 10
The dissent asserts that other states that have adopted the ongoing storm
rule uniformly hold that if a commercial landowner undertakes snow removal
activities during an ongoing storm, a claim that arises from an accident
following those activities is not subject to an “unusual circumstances” test, but
10 The dissent characterizes our inclusion of the “unusual circumstances” requirement of Pareja’s first exception in our holding as “superimpos[ing] a novel, ill-defined, and unworkable ‘unusualness’ element to Pareja’s exceptions,” “a wholesale departure from our well-established precedent,” a “brand new ‘unusualness’ requirement,” a “new interpretation of Pareja’s first exception,” “not a meaningful legal test,” not a “predictable or workable legal standard,” the imposition of “blanket immunity from liability,” the imposition of “an additional requirement” not in Pareja, and “immunizing unreasonable conduct.” Post at ___ (slip op. at 1, 2, 6, 22, 26, 29, 30, 34, 36). The dissent also contends that, “in first announcing” the exceptions in Pareja, “the Court made no reference to ‘unusual circumstances,’” and it characterizes the Court’s use of the term “unusual circumstances” in that decision to be “descriptive.” Post at ___ (slip op. at 21, 22).
In Pareja, however, the Court defined its first exception as follows: “First, commercial landowners may be liable if their actions increase the risk to pedestrians and invitees on their property, for example, by creating ‘unusual circumstances’ where the defendant’s conduct ‘exacerbate[s] and increase[s] the risk’ of injury to the plaintiff.” Pareja, 246 N.J. at 559 (citing Terry, 732 A.2d at 717-18) (emphasis added). Our holding comports with the express terms of the Pareja decision. 32 is determined under an ordinary negligence standard. Post at ___ (slip op. at
25-28). The dissent further claims that the jurisdictions that have adopted the
ongoing storm rule uniformly exclude from that rule cases in which the
commercial landowner has attempted to remediate snow and ice during an
ongoing storm. Ibid. It portrays the “unusual circumstances” standard
governing Pareja’s first exception as a novel concept, originating in this
appeal, that deviates from tort principles adopted in other states. Post at ___
(slip op. at 25).
Those assertions are incorrect. A decade after it decided Terry, the
Rhode Island Supreme Court confirmed in Berardis v. Louangxay, 969 A.2d
1288, 1291-93 (R.I. 2009), that the “unusual circumstances” test of Terry
governs the question whether an exception to the ongoing storm rule applies --
even if, as in Berardis, the defendant has attempted to remove snow and ice
during an ongoing storm. The Connecticut Supreme Court has held that “in the
absence of unusual circumstances,” a property owner “may await the end of a
storm and a reasonable time thereafter before removing ice and snow from
outside walks and steps.” Kraus v. Newton, 558 A.2d 240, 243 (Conn. 1989).
And in Laine v. Speedway, LLC, 177 A.3d 1227, 1229 (Del. 2018), the
Delaware Supreme Court held that “[u]nder the continuing storm doctrine, it is
reasonable for a business owner to wait until a storm has ended and a
33 reasonable time thereafter to remove natural accumulations of ice and snow in
the absence of unusual circumstances.” The Delaware Supreme Court
also held that a commercial landowner does not “assume[] a duty to make [a]
parking lot safe by beginning snow removal operations while the storm [is]
still in progress.” Id. at 1230.
In short, contrary to the dissent’s contention, neither the adoption of the
“unusual circumstances” exception in Pareja nor the application of that
standard in this appeal makes New Jersey an outlier among the jurisdictions
that apply the ongoing storm rule.
Were we to construe the first Pareja exception as the trial court and
Gallardo interpreted it and the dissent contends that we should, that exception
would eviscerate the ongoing storm rule. Absent the “unusual circumstances”
requirement, a court could impose a duty on a commercial landowner if that
landowner or its contractor applies a de-icer such as salt during an ongoing
storm or shovels the snow, but its efforts fail and a pedestrian or business
invitee is injured. Ibid. Indeed, in this case, the trial court explained its
understanding that if a commercial landowner takes any action to remove snow
and ice during an ongoing storm, it is held to the ordinary standard of due care
-- the same standard that applies if an accident occurs a reasonable time after a
storm ends. Such a rule would apply with equal force to a family operating a
34 single store or a major corporation such as Walmart. It would incentivize
landowners and their contractors to forgo any remediation effort until a storm
is over, thereby increasing the risk of injury to pedestrians and invitees.
We decline to impose such a rule. Instead, we reaffirm that the first
Pareja exception includes an “unusual circumstances” requirement, in
accordance with our opinion’s express terms.
We find in this record no genuine issue of material fact as to whether
“unusual circumstances” warranted an exception to the ongoing storm rule.
When Gallardo fell in Walmart’s parking lot at approximately 1:30 p.m. on
January 3, 2015, there was an ongoing storm that would not end for several
hours. It is clear that any accumulation of precipitation at that time was -- at
most -- minimal, estimated to amount to no more than a trace to one tenth of
an inch. Walmart’s contractor did not pretreat its parking lot before the storm
began, but applied a commonly used de-icer -- salt -- to the parking lot surface
during the storm, before Gallardo fell. That conduct simply did not not give
rise to “unusual circumstances” of any kind, let alone a setting comparable to
that of Terry. The first exception prescribed by Pareja cannot, as a matter of
law, govern this appeal.
Construing the summary judgment record in the light most favorable to
Gallardo, we find no genuine issue of material fact with respect to the first
35 element of Gallardo’s negligence claim, the defendant’s duty of care. We
therefore conclude that the trial court should have granted Walmart’s motion
for summary judgment based on the record presented in that motion. See R.
4:46-2(c). The trial record only underscored the absence of unusual
circumstances in this case -- no fact or expert witness testimony established
“unusual circumstances” that would justify the imposition of a duty as an
Accepting as true the evidence that supports Gallardo’s position and
giving her the benefit of all legitimate inferences from that evidence, we find
that the trial record warranted the grant of Walmart’s motion for judgment at
trial and motion for judgment notwithstanding the verdict. See R. 4:40-1, -2.
Accordingly, we hold that Walmart was entitled to judgment dismissing
plaintiff’s claims based on the ongoing storm rule.
We do not reach the question whether Walmart could properly be held
liable based on the conduct of Land Pros, given the trial court’s finding that
Land Pros was not negligent and entering summary judgment dismissing
Gallardo’s claims against it.
36 IV.
The judgment of the Appellate Division is reversed, and the matter is
remanded to the trial court for the entry of summary judgment dismissing
Gallardo’s claims against Walmart.
CHIEF JUSTICE RABNER and JUSTICES PIERRE-LOUIS and WAINER APTER join in JUSTICE PATTERSON’s opinion. JUSTICE FASCIALE filed a dissent in which JUSTICES NORIEGA and HOFFMAN join.
37 Haydee Gallardo,
Walmart, Debra Lewis, Wal-Mart Stores, Inc., Union 22 Plaza, LLC, Wal-Mart Real Estate Business Trust, and Wal-Mart Stores East, L.P.,
JUSTICE FASCIALE, dissenting.
Today, the majority ventures far afield from bedrock tort principles, first
erring in its novel misreading of Pareja v. Princeton International Properties,
246 N.J. 546 (2021), and further erring in applying that novel misreading to
this case. By holding for the first time today that active snow remediation that
increases the risk of harm to plaintiffs cannot be actionable -- even if
unreasonably performed -- unless that remediation itself somehow also seems
“unusual,” the majority stretches Pareja’s holding far beyond its intended
1 reach. In so doing, the majority superimposes a novel, ill-defined, and
unworkable “unusualness” element to Pareja’s exceptions that should never be
applied to this case -- a case which predates Pareja’s framework and lies
outside its holding. As a result, the majority dismisses plaintiff’s complaint,
despite the jury’s finding that plaintiff suffered serious, permanent injuries as a
direct result of Walmart’s negligence. The majority’s disposition is not merely
an isolated misstep; it is a wholesale departure from our well-established
precedent, a misapplication of the ongoing storm rule’s exceptions, and an
injustice to the parties here and to future litigants alike, leaving New Jersey
residents at the mercy of tortious snow and ice removal efforts each winter.
To begin, the majority fundamentally misinterprets Pareja’s first
exception 1 by adding an undefined “unusualness” requirement.
Pareja’s framework is clear: commercial landowners do not have a duty
to affirmatively act while precipitation is falling, but once they do act and
“increase the risk” to plaintiffs, 246 N.J. at 559, a duty of care is reimposed as
to those actions, and their execution must be reasonable or liability will follow.
Today, the majority instead insists that Pareja’s first exception reimposes a
1 In adopting the ongoing storm rule, Pareja announced “two exceptions that could impose a duty: if the owner’s conduct increases the risk, or the danger is pre-existing.” 246 N.J. at 549. This appeal involves only the first exception.
2 duty of care on a commercial landowner not only if (1) the landowner
voluntarily increases the risk of harm, but also, separately (2) does so under
circumstances that a court believes to be “unusual.” See ante at ___ (slip op.
at 35). The majority attempts to ground this novel holding in our precedent,
but such an attempt misreads both Pareja and the foundation upon which it was
built.
Pareja explained its exceptions as follows:
The following unusual circumstances present exceptions to the ongoing storm rule. First, commercial landowners may be liable if their actions increase the risk to pedestrians and invitees on their property, for example, by creating “unusual circumstances” where the defendant’s conduct “exacerbate[s] and increase[s] the risk’ of injury to the plaintiff.”. . .
Second, a commercial landowner may be liable where there was a pre-existing risk on the premises before the storm. For example, if a commercial landowner failed to remove or reduce a pre-existing risk on the property, including the duty to remove snow from a previous storm that has since concluded[.]
[246 N.J. at 558-59 (emphases added) (quoting Terry v. Cent. Auto Radiators, Inc., 732 A.2d 713, 717-18 (R.I. 1999)).]
A plain reading of Pareja illustrates that those two circumstances --
increasing the risk and a pre-existing risk -- are themselves the “unusual
circumstances” that reimpose a legal duty of reasonable care on the landowner
during a storm. The Pareja Court used the term “unusual circumstances” to
3 describe the two exceptions, not to impose some separate, undefined element.
In other words, a circumstance is unusual solely because it increases the risk,
not because the risk-increasing conduct is itself also “unusual.” Indeed, the
Rhode Island Supreme Court, which the majority asserts “confirmed . . . the
‘unusual circumstances’ test of Terry,” ante at ___ (slip op at 33), has
unequivocally clarified that in Terry, “[the] . . . circumstances were unusual
because the defendant ‘exacerbated and increased the risk,’” Berardis v.
Louangxay, 969 A.2d 1288, 1292 (R.I. 2009) (emphasis added) (quoting Terry,
732 A.2d at 717-18), nothing more.
If there was any doubt, in incorporating the first exception, Pareja
reviewed a body of law which uniformly held that even when there is no duty
to act, if one does act in a manner that increases the risk of harm to plaintiffs,
that individual assumes a duty of reasonable care to those plaintiffs -- a
holding that is in line with the application of equivalent exceptions in the other
jurisdictions that have adopted the ongoing storm rule, as well as our state’s
tort law. See Restatement (Second) of Torts § 323 (Am. L. Inst. 1965)
(explaining the general tort rule that a duty voluntarily undertaken must not
“increase[] the risk of such harm,” with liability hinging on whether reasonable
care was exercised). Indeed, as the trial judge explained to counsel at the
charge conference, our “law was always, before [Pareja,] and continued to be
4 [after], that if you choose to do something, you better do it right.” Ante at ___
(slip op. at 12). We have never held, and no court that I have found in New
Jersey or otherwise has ever held, that a commercial landowner’s voluntary,
unreasonable acts are immune from liability simply because precipitation is
falling.
The majority contravenes those well-established principles by severing
the “unusual circumstances” language from Pareja’s two clearly defined
unusual circumstances: “increase the risk” and “pre-existing risk.” 246 N.J. at
549 (“[W]e . . . recognize two exceptions that could impose a duty: if the
owner’s conduct increases the risk, or the danger is pre-existing.”). I disagree
with the majority’s sole rationale for doing so -- its concern that, without a
separate “unusualness” requirement, commercial landowners would be
discouraged from undertaking any remedial efforts during a storm. See ante at
___ (slip op. at 34-35). As plainly written, the first Pareja exception does not
punish commercial landowners for acting; it merely requires that, if they
choose to act, they do so with reasonable care. Thus, as is the case in other
jurisdictions and our law before today, it would not be the act of salting or
shoveling that triggers liability, but rather, it would be the negligent execution
of those acts. By contrast, the majority’s policy rationale turns tort law on its
head, incentivizing unreasonable conduct and leaving innocent, injured victims
5 without recourse. 2 In my view, the law should continue to incentivize
reasonable conduct and provide recourse for injured parties.
If the majority’s new interpretation of Pareja’s first exception was
somehow correct (which it is not), then the majority nonetheless errs in
applying Pareja’s framework to begin with, as it does not and cannot govern
this appeal for two reasons. 3
2 The majority bases its holding on the concern that, under my reading, “a court could impose a duty on a commercial landowner if that landowner or its contractor applies a de-icer such as salt during an ongoing storm or shovels the snow, but its efforts fail and a pedestrian or business invitee is injured.” See ante at ___ (slip op. at 34). If by “fail” the majority means that a pedestrian or business invitee is injured despite reasonable remediation efforts or injured on a part of the premises unrelated to the remediation efforts, then that concern is misplaced -- neither my reading, nor Pareja’s plain text, nor the underlying legal principles would mean that a landowner who “fails” at perfectly remediating the snowfall across the entire premises would face liability. But if by “fail” the majority means that a pedestrian or business invitee is injured because the landowner’s action was unreasonable and increased the risk, then that is precisely when liability should attach. Voluntary, affirmative conduct that is unreasonably executed has always resulted in liability -- under Pareja, longstanding New Jersey law, and other jurisdictions that apply the ongoing storm rule. 3 The majority finds that the merits of my position -- that its novel two-step “unusualness” standard should not govern this 2015 accident -- ought to be ignored simply because “[i]n a matter litigated for more than a decade, in which the parties and amicus are represented by seasoned counsel, [this argument is] asserted -- for the first and only time -- in the dissent.” See ante at ___ (slip op. at 21). But no matter how seasoned, no counsel could have raised arguments challenging the applicability of the majority’s newly invented interpretation, employed by this Court for the very first time in this appeal.
6 First, the majority errs by applying its novel interpretation of Pareja’s
framework to plaintiff’s 2015 accident. It was not until six years later, in
2021, that the Pareja Court adopted -- “[f]or the first time” -- the ongoing
storm rule, under which a commercial landowner’s duty to remove snow or ice
from public walkways is suspended “until a reasonable time after the cessation
of precipitation,” along with the corresponding exception at the heart of this
appeal: “[A] commercial landowner may [nonetheless] be liable if their
actions increase the risk to pedestrians and invitees on their property.” 246
N.J. at 559 (emphasis added). Prior to Pareja, no case had ever insulated
landowners from a duty of reasonable care during snowfall on the basis of
“unusual circumstances,” and no commercial entity -- Walmart included --
could have ever reasonably anticipated that such a standard governed its
conduct.
Yet, the majority now dismisses plaintiff’s complaint and vacates the
jury’s verdict -- eleven years after the accident -- by introducing a new
requirement: that a landowner’s duty during a storm is triggered only if the
risk-increasing conduct also seems “unusual.” It is beyond dispute that this
“unusual circumstances” language did not exist in New Jersey tort law at the
time of the accident. As a result, it cannot control here and plaintiff therefore
cannot have been required to present at the motion record evidence of “unusual
7 circumstances” to reestablish a legal duty of care. Accordingly, the majority’s
de novo grant of summary judgment is extraordinarily unfair to the parties,
based entirely on a legal standard that was not articulated until today.
In contrast, the trial judge properly instructed the jury on the law that
governed at the time: well-established principles of general negligence. The
trial judge rightly rejected Walmart’s request to instruct the jury on Pareja’s
new framework, explaining that “this case is not Pareja” and that the question
for the jury was simply whether Walmart failed to exercise reasonable care in
its actions. Any suggestion that Pareja’s new framework -- and especially its
“unusual circumstances” descriptor -- was part of New Jersey law at the time
of the accident is belied by both the text of Pareja and the history of our tort
law. Indeed, the parties themselves highlight the novelty of Pareja’s
framework, with plaintiff emphasizing that Pareja is a “drastic change in the
case law guiding the responsibility of commercial landowners during a
snowstorm,” and with Walmart characterizing the Pareja decision as
announcing “special standards governing a negligence analysis relating to an
ongoing storm.” (emphases added). 4 Thus, regardless of any interpretations of
4 Throughout the proceedings, the parties repeatedly and directly raised the applicability of Pareja and its exceptions, an issue of significant public importance that warrants this Court’s review to ensure clarity and consistency
8 Pareja today, the law prior to Pareja was perfectly clear: commercial
landowners owed a duty of reasonable care for their voluntary acts on their
premises, and liability attached for the negligent execution of such acts.
Because the trial judge correctly charged the jury with that applicable law, the
jury’s verdict should be upheld.
Second, Pareja cannot govern this appeal because it is materially
distinguishable from this case -- its ongoing storm rule does not apply to
plaintiff’s accident, which occurred in Walmart’s private parking lot. 5 In
applying Pareja, the majority expands Pareja’s holding to cover not only
“public walkways” -- the express focus of Pareja and the decades of precedent
upon which it relied -- but also to cover private premises voluntarily left open
for business during a storm. 246 N.J. at 548 (emphasis added). There is a
critical distinction between public and private premises liability -- as this
Court has long recognized, the law has never treated as interchangeable the
duty of care owed to plaintiffs on public sidewalks and private property. The
status of the injured party, the nature of the property, and the relationship
in the law. It remains the Court’s fundamental duty to determine and apply the correct governing law. 5 Even if Pareja applies to a commercial owner’s private parking lot, Walmart’s conduct during the storm reimposed a duty of reasonable care. The jury found Walmart breached that duty.
9 between the parties matter here, and have always mattered in our longstanding
tort law. The trial judge correctly acknowledged this distinction in denying
Walmart’s motion for a judgment notwithstanding the verdict (JNOV) and
finding Pareja inapplicable.
Finally, because a duty of reasonable care was reimposed on Walmart
due to its conduct during the storm, the majority errs by disposing of this case
on a summary judgment motion despite the litany of disputed issues of fact.
At the end of this opinion, I point to over twenty disputed issues of material
fact as to the reasonableness of Walmart’s conduct (including expert testimony
as to increase of risk to invitees) that preclude summary judgment.
Nevertheless, the jury has already heard and weighed the evidence, found that
Walmart acted negligently, and awarded plaintiff over a million dollars, which
the majority now sets aside over a decade later.
* * *
In sum, because the trial judge instructed the jury on the correct law, I
would uphold the jury’s verdict and plaintiff’s $1,328,658.59 judgment
compensating her for her injuries. 6 I would not adopt the majority’s novel
6 The jury awarded plaintiff $500,000 for pain and suffering, $213,941 for past medical expenses, and $414,000 for future medical expenses. The judge molded the award to include prejudgment interest and entered an award for $1,328,658.59.
10 interpretation of Pareja’s first exception. As this Court has repeatedly
emphasized, the central aim of tort law is to prevent accidents by encouraging
reasonable care and to ensure that those who cause harm bear the cost of their
wrongdoing. The majority’s policy decision -- to insulate Walmart and all
other commercial landowners from liability arising from unreasonable snow
removal -- does not effectuate that central aim.
New Jersey is home to over nine million residents. As a result of the
majority’s decision today, so long as precipitation is falling, if those residents
visit a Walmart -- a grocery store, a doctor’s office, or any commercial
property -- they do so at their own peril.
For those reasons, I dissent.
Because the majority grants summary judgment and dismisses the
complaint with prejudice eleven years after the accident, I consider the facts in
the light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am.,
142 N.J. 520, 540 (1995).
On January 3, 2015, at approximately 11:30 a.m., snow, sleet, and rain
began to fall at the Walmart location in Union Township. The precipitation
continued until approximately 3:30 p.m.
11 Under the terms of Walmart’s lease with its landowner, the landowner
assigned maintenance responsibility to Walmart. 7 Walmart contracted with
Land Pros of New Jersey, LLC (Land Pros) to perform snow and ice removal
at the premises. Under its contract, Land Pros was required to “apply anti-
icing or de[-]icing agents to the site before snowfall (commonly known as a
pretreatment).”
Although aware of the expected storm and despite its obligation under
the contract, Land Pros did not pretreat the lot with icing or de-icing agents.
Instead, Land Pros waited until the storm started before it commenced attempts
to address the dangerous ice and snow conditions present before plaintiff
arrived at Walmart. At approximately 12:35 p.m., during the ongoing storm,
Land Pros began to apply de-icing agent/salt, and continued to do so for about
forty minutes.
At about 1:30 p.m., plaintiff arrived at Walmart during the ongoing
storm and slipped and fell in the parking lot on “slushy ice, snow.” She
sustained serious permanent injuries to her lower back, shoulder, neck, groin,
and leg.
7 Walmart leased the premises from landowner Union 22.
12 B.
Plaintiff sued Walmart and the store manager (collectively, Walmart),
seeking compensation for the injuries she sustained. Walmart filed a third-
party breach of contract complaint against Land Pros. Plaintiff then amended
her complaint and named Land Pros as a direct defendant. In plaintiff’s
amended pleading, she did not allege that Walmart was vicariously liable for
Land Pros’ negligence. Rather, plaintiff maintained that Walmart’s direct
negligence caused her injuries, as her claim focused on Walmart’s breach of its
nondelegable duty to ensure the parking lot was reasonably safe for business
invitees.
Before the discovery end date, and pre-Pareja, Land Pros filed a motion
for summary judgment. Only plaintiff opposed the motion. The motion judge,
who was different from the trial judge, erroneously found that Land Pros “was
not obligated to remove ice and snow until after the storm ended” and that “no
duty arose under the circumstances until after the snowstorm ended.” He
reached this conclusion despite the fact that (1) Land Pros is not a commercial
landowner and the sidewalk case law cited by the judge addressed only
commercial landowners (not snow removal contractors); (2) Land Pros’ scope
of work remained disputed; (3) Land Pros attempted to treat the parking lot
during the storm, while, by its own admission, the “snow, sleet and rain . . .
13 began to fall swiftly”; and (4) discovery remained incomplete, which
prevented plaintiff from obtaining more details of Land Pros’ contractual
duties to remove and remediate ice and snow. Nearly two years before this
Court released Pareja, that motion judge granted partial summary judgment
and dismissed all claims against Land Pros, including Walmart’s breach of
contract claim.
After this Court released the Pareja decision in 2021 -- six years after the
accident occurred -- Walmart filed a motion for summary judgment,
contending that under Pareja, it had no duty to remove ice and snow when
plaintiff fell. 8 The same motion judge correctly found that disputed issues of
fact precluded entering summary judgment in Walmart’s favor. He agreed
with plaintiff’s arguments that Walmart attempted to remove snow and ice
during the storm and, applying general negligence principles, that disputed
issues of material fact existed as to whether Walmart itself breached its
nondelegable duty to business invitees to ensure its property was free of
dangerous conditions. The parties then proceeded to trial with Land Pros as an
empty chair.
8 Walmart had twice before been denied summary judgment due to disputed issues of material fact.
14 C.
At trial, plaintiff introduced evidence that while Walmart remained open
during the storm, it breached its nondelegable duty to make its premises
reasonably safe for its invitees. Specifically, plaintiff introduced proofs that
Walmart failed to follow its own standard operating procedure for pretreating
the parking lot surface, that Walmart delegated its responsibility to make its
premises safe to Land Pros, and that Walmart failed to inspect or supervise
Land Pros’ work. Additionally, Walmart’s assistant manager admitted that the
parking lot “should have been better cleaned off” and, despite that knowledge,
did not ask Land Pros to address the dangerous condition it had created and
remove the snow and ice.
Plaintiff also introduced testimony from the owner of Land Pros, John
Fierro. Fierro’s testimony revealed that he believed he had no written contract
for snow and ice management and that, after spreading salt, Fierro did not
monitor the parking lot condition and failed to return despite the ongoing
snow, sleet, and rain.
Plaintiff’s expert in snow and ice management, John Nelson Weist,
opined that: Fierro had no formal training in snow and ice management; Fierro
had no written policies for snow and ice management; Fierro failed to inspect
the property at reasonable intervals; and Fierro failed to pretreat the parking
15 lot surface, even though he monitored the weather. Weist then explained that
“Fierro’s application of salt, once accumulation occurred, decreased the
overall traction of the surface” and “applying de[-]icer as in this case will
cause increased slickness if the surface/ground temperature is around or above
[thirty-two degrees].” Weist concluded that “the manner in which . . . Fierro
addressed the conditions at Walmart required/caused/created the further need
not only for [Land Pros] but for Walmart to . . . follow-up by clearing the
resulting snow and slush.” He further stated that the throwing of de-icer on
snow already on the ground was “absolutely not” acceptable by industry
standards, because with
[t]he ground temperature being at least freezing, [thirty-two] degrees, when warmer water, liquid hits it, it immediately becomes black ice. You can’t see it. . . . [M]ost times you can’t see it. The way people experience it is when they take a flip through it and hurt [themselves].
So, one . . . thought here is that when he put salt[,] and apparently not enough salt to melt it all[,] because we have the pictures of what the result was, when he put the salt down, now he throws it on top of the snow and that snow melts and runs down[,] and when it hits that cold untreated surface it becomes black ice. So he essentially exacerbated the condition by throwing water on it, which is what he did.
[(emphasis added).]
16 Weist thus concluded that this action increased the risk of harm: ice
formed in Walmart’s parking lot and was permitted to remain, but it would
have been corrected had Walmart conducted a reasonable inspection. He
further opined that Walmart’s actions violated accepted standards due to
Walmart’s lack of personnel trained in snow and ice management and
monitoring; and that Walmart failed to have in place and follow proper
procedures to make its premises safe for invitees, particularly as Walmart’s
management knew or should have known that the dangerous accumulation of
snow and ice existed in its parking lot. Weist’s testimony and conclusions
were thus consistent with plaintiff’s theory of the case -- that Walmart
breached its nondelegable duty to ensure its premises are safe for business
Before the close of evidence, Walmart requested that the trial judge
charge the jury in accordance with Pareja even though (1) the Pareja
framework at issue here did not exist at the time of the accident; (2) plaintiff
fell in a commercial private parking lot, not a public sidewalk; and (3) the
exception concerns the reimposition of a duty of care, a legal question that
would never be decided by a jury. Nevertheless, Walmart requested, in part,
that the judge give the following jury charge:
A commercial landowner may be liable if their actions increase the risk to pedestrians and invitees of their
17 property, for example, by creating unusual circumstances where the defendant’s conduct exacerbate[s] and increase[s] the risk of injury to the plaintiff. In this case, . . . [p]laintiff claims that when Walmart’s snow contractor applied salt on the ground, during the snowstorm, an unusual circumstance was created, that increased the risk that pedestrians would fall. Walmart denies that the application of an ice melting agent, during a snowstorm, created an unusual circumstance, which increased inherent hazards to pedestrians, like . . . [p]laintiff.
[(emphases added).]
Plaintiff opposed that request and instead urged the trial judge to charge
the jury on the applicable, existing principles of negligence, ordinary care, and
foreseeability. In other words, charge the applicable law. The trial judge
agreed with plaintiff and instructed the jury on those longstanding tort
principles. After the final jury charge, Walmart’s counsel re-raised Pareja and
argued that the judge should have instructed the jury as he had proposed,
which included multiple references to “unusual circumstances.” The trial
judge again denied that request and concluded that this “case is not Pareja.
This case is dealing with . . . a question of fact for the jury to decide under
regular negligence as in a pre-Pareja case.” (emphases added).
The jury found that Walmart’s actions or inactions, as to its voluntary
“snow removal and/or treatment of the parking lot,” were negligent; that
Walmart’s negligence proximately caused plaintiff’s accident; and that
18 Walmart’s negligence proximately caused plaintiff’s permanent injuries. It
then awarded her damages for the injuries caused by Walmart’s negligence.
The jury returned its verdict against Walmart even though Walmart pointed to
Land Pros as an empty chair.
Walmart moved for a new trial relying on Pareja. Plaintiff’s counsel
argued, and the trial judge agreed, that Pareja was inapplicable. As the judge
remarked, the plaintiff in Pareja slipped on the sidewalk. And in denying
Walmart’s motion for JNOV, the judge specifically repeated that Pareja dealt
with a sidewalk. The judge explained that the facts in this case are
distinguishable from Pareja -- plaintiff’s case focused not on a sidewalk, but
rather on Walmart’s nondelegable duty to make a private business parking lot
safe for invitees.
Walmart appealed. The Appellate Division erroneously reversed and
vacated plaintiff’s verdict, determining that the jury should have been
instructed on Pareja’s new legal framework. The majority now compounds
that error by granting Walmart summary judgment on the basis that Pareja
purportedly immunizes Walmart from its unreasonable yet “ordinary” snow
removal activities.
19 II.
The majority fundamentally errs by granting Walmart summary
judgment based on its interpretation of Pareja’s first exception -- that it
immunizes commercial occupiers of land, like Walmart, from liability for their
unreasonable -- but somehow, in the majority’s opinion, “usual” -- actions
during a storm.
Under Pareja, “a landowner does not have a duty to remove snow or ice
from public walkways until a reasonable time after the cessation of
precipitation” unless “the owner’s conduct increases the risk” of injury to the
plaintiff. 246 N.J. at 548-49. In announcing that exception, the Pareja Court
drew on case law that uniformly held that even when there is no affirmative
duty to act, if a defendant does act, that action must be reasonable or liability
will follow. E.g., Stewart v. 104 Wallace Street, Inc., 87 N.J. 146, 152-53, 155
(1981) (explaining that historically, despite the prior “no liability” public-
sidewalk rule, a landowner was nevertheless liable “for repairs voluntarily
undertaken but negligently performed” (collecting cases)).
Accordingly, I would hold that the first Pareja exception reimposes a
duty of reasonable care on commercial landowners when they affirmatively
take an action that “increase[s] the risk to pedestrians and invitees on the
property.” 246 N.J. at 559. Here, because Walmart voluntarily increased the
20 risk of harm to plaintiff, Walmart owed her a duty of reasonable care in
undertaking those actions, and the trial judge correctly instructed the jury on
applicable general negligence principles for business invitees.
Indeed, as the trial judge correctly observed, under a plain reading of
Pareja’s first exception,
the [Pareja] Court didn’t change the [pre-existing] law, by the way. The exception existed prior to [Pareja]. The exception was basically, if you undertake -- they made it an exception but it was the law before. And if you undertake to do something -- you know, you go out and shovel your sidewalk and you do a bad job and you weren’t obligated to shovel your sidewalk, you created a liability for yourself. You know, it’s -- it’s the old maxim. You -- have no obligation to do it, but if you do it, you better make sure you do it right because you’ve now created -- you’ve undertaken a duty you didn’t have to do.
The trial judge understood that under Pareja, commercial landowners “have no
absolute duty to go out and do something during a continuing storm,” but
“there’s already all this law in place that says if you go out and do it, you’d
better make sure you do it right because now you’ve undertaken the duty.”
The majority now eschews that well-established principle and alters our
longstanding law under the guise of Pareja’s descriptive use of the phrase
“unusual circumstances.” Specifically, in concluding as a matter of law that
Walmart did not have a duty of care on the basis that its conduct was not
“unusual,” the majority now, for the first time, redefines Pareja’s exception by
21 adding an additional requirement -- that a court find that a defendant’s actions
must qualify as “unusual” -- for it to apply and reimpose a duty of care. I
disagree with that interpretation of Pareja’s first exception because it (A) is
unsupported by a fair reading of Pareja and the case law it relied on; (B)
deviates from how other jurisdictions have interpreted equivalent exceptions to
their ongoing-storm doctrines; (C) fails to provide any guidance for future
cases; and (D) is based solely on a policy rationale that undermines tort law.
First, a plain reading of Pareja belies the majority’s novel two-step
understanding of Pareja’s first exception.
The majority bases its interpretation on the fact that “[t]he term ‘unusual
circumstances’ appears in two parts of the opinion.” Ante at ___ (slip op. at
30). But the majority’s reading ignores the context of the “unusual
circumstances” phrase. In Pareja, the phrase “unusual circumstances” is used
to describe circumstances where a duty of care is reimposed on a commercial
landowner during snowfall:
The following unusual circumstances present exceptions to the ongoing storm rule. First, commercial landowners may be liable if their actions increase the risk to pedestrians and invitees on their property, for example, by creating “unusual circumstances” where the defendant’s conduct “exacerbate[s] and increase[s] the risk” of injury to the plaintiff. . . .
22 Second, a commercial landowner may be liable where there was a pre-existing risk on the premises before the storm. For example, if a commercial landowner failed to remove or reduce a pre-existing risk on the property, including the duty to remove snow from a previous storm that has since concluded[.]
[246 N.J. at 559 (emphases added) (quoting Terry, 732 A.2d at 717-18).]
Thus, under Pareja, those two circumstances -- increasing the risk and a
pre-existing risk -- are in-and-of themselves the “unusual circumstances” that
reimpose a duty of care. Indeed, in first announcing -- within the introduction
of the opinion -- the exceptions, the Court made no reference to “unusual
circumstances.” Instead, Pareja states that, “[i]n addition to adopting the
[ongoing storm] rule, we also recognize two exceptions that could impose a
duty: if the owner’s conduct increases the risk, or the danger is pre-existing.”
Id. at 546-47 (emphases added). Fairly read, such circumstances are already
“unusual.” A plain reading of Pareja speaks for itself.
To understand how Pareja’s exceptions should operate, we need look no
further than the Court’s application in Pareja itself. In determining whether an
exception applied to the facts of that case, the Pareja Court explained: “[The
defendant] owes [the plaintiff] a duty only in unusual circumstances, none of
which we find here. [The defendant] took no action to increase [the
plaintiff’s] risk, and the record shows that the ice on the sidewalk was not a
23 pre-existing condition.” Id. at 559-60 (emphases added). The Pareja Court’s
analysis turned on whether the defendant’s conduct fit into the two defined
“unusual circumstances” -- increase the risk or a pre-existing risk. See ibid.
Beyond those two categories, the Court did not make a separate determination
as to the “usualness” or “unusualness” of the setting. See ibid. Neither should
the majority make such a determination today.
Further, in discussing the appropriate duty for a commercial landowner
during a storm, Pareja itself, significantly, acknowledged “that measures like
spreading salt in a[n] . . . ice storm can . . . enhance the danger” to the public,
246 N.J. at 557 n.1. That is exactly what plaintiff alleged and the jury found
here. And Pareja further explained that a duty of care always exists wherever
a “landowner[] undertook to remove snow from a public sidewalk and,
‘through [their own] negligence[,] a new element of danger or hazard, other
than the one caused by natural forces, [was] added to the safe use of the
sidewalk by a pedestrian.’” 246 N.J. at 555 (alterations in original) (quoting
Saco v. Hall, 1 N.J. 377, 381 (1949)). Thus, Pareja’s reimposition of a duty
during snowfall must extend to Walmart’s voluntary spreading of salt during a
storm, which enhanced the danger to invitees beyond that which existed
naturally.
24 B.
Second, any broader interpretation of Pareja’s first exception deviates
from the way equivalent exceptions operate in other jurisdictions’ case law,
including Terry v. Central Auto Radiators, Inc., 732 A.2d 713 (R.I. 1999),
upon which the majority relies.
In Pareja, to demonstrate application of its first exception, the Court
relied on Terry, 732 A.2d at 717-18, wherein the Rhode Island Supreme Court
adopted the ongoing storm rule and applied an equivalent exception. In Terry,
as the Pareja Court explained, “[t]he Supreme Court of Rhode Island held that
‘unusual circumstances’ existed where a defendant ‘actively increas[ed] . . .
[the] risk [of injury] by placing [the plaintiff’s] vehicle so far distant and then
directing her to make the longer walk over the treacherous icy terrain.’”
Pareja, 246 N.J. at 559 (alterations in original) (quoting Terry, 732 A.2d at
718). In so doing, “[t]he defendant . . . exacerbated and increased the risk of
the plaintiff’s falling.” Terry, 732 A.2d at 718. Resultingly, the defendant
owed the plaintiff a duty of reasonable care. Ibid.
In imposing the duty, the Terry court made its rationale clear: Rather
than arbitrarily labeling circumstances as “usual” or “unusual,” the Terry court
explained that, as always, “[t]he linchpin in determining the existence of any
duty owed to [a plaintiff is] the foreseeability of the risk of injury to [the
25 plaintiff] by [the defendant’s] actions.” Ibid. (quoting Splendorio v. Bilray
Demolition Co., 682 A.2d 461, 466 (R.I. 1996)). And the Terry Court further
noted the tort axiom that, “[i]n carrying on any activity, a property owner must
use reasonable care for the safety of invitees and refrain from activities that
increase the danger to invitees.” Id. at 718 n.3 (emphases added) (citing J.D.
Lee & Barry A. Lindahl, 3 Modern Tort Law, § 39.10 (rev. ed. 1998)).
Accordingly, because longstanding tort principles provide that when a
defendant’s conduct foreseeably exacerbates or increases the risk of harm to
plaintiffs, that conduct itself creates a duty of care, and thus, such conduct
must trigger the ongoing-storm-rule exception. See ibid.
That principle remains evidently clear throughout the subsequent Rhode
Island Supreme Court case law upon which the majority relies. In Berardis v.
Louangxay, the court explained that the Terry “circumstances were unusual
because the defendant ‘exacerbated and increased the risk’ that the plaintiff
would fall and suffer an injury.” 969 A.2d 1288, 1291-93 (R.I. 2009) (quoting
Terry, 732 A.2d at 717). The court’s use of the term “because” is significant:
the court found only that the defendant’s act of increasing the risk made the
circumstances unusual. Ibid. (quoting Terry, 732 A.2d at 717). In other
words, the circumstances were unusual solely “because” the defendant
“increased the risk,” not because there was some separate, undefined,
26 “unusualness” to the defendant’s risk-increasing conduct. Terry, 732 A.2d at
717.
In subsequent Rhode Island cases where there were no “unusual
circumstances,” as in Pareja, the court explained that “unusual circumstances”
did not exist to reimpose a duty of care on the landowner because the
landowner’s conduct did “not itself increase any risk to the plaintiff that did
not already exist naturally as a result of the storm.” Berardis, 969 A.2d at
1293. Similarly, in Benaski v. Weinberg, the court found nothing “unusual”
about the circumstances when the defendant’s conduct had not “exacerbated
the risk that the plaintiff undertook,” again, with no separate “unusualness”
inquiry. 899 A.2d 499, 503-04 (R.I. 2006) (emphasis added) (explaining that
“[t]he linchpin of [the court’s] duty analysis in Terry was the presence of a
heightened risk” (emphasis added)). Despite the majority’s reliance on those
cases, the Rhode Island Supreme Court has never independently opined on the
“unusualness” of a given circumstance beyond the well-established “increase-
the-risk” linchpin. Ibid. The case law is unambiguous.
And in jurisdictions that have adopted the ongoing storm rule without
reference to the “unusual circumstances” descriptor, their analogous
exceptions operate in the exact same manner, consistent with longstanding tort
principles. See, e.g., Aronov v. St. Vincent’s Hous. Dev. Fund Co., 43
27 N.Y.S.3d 99, 100 (App. Div. 2016) (“If a property owner has elected to clear a
sidewalk during a storm in progress, the owner is required to act with
reasonable care and may be liable if its efforts create a hazardous condition or
exacerbate a natural hazard created by the storm.” (collecting New York
cases)); Avalos v. Pulte Home Corp., 474 F. Supp. 2d 961, 970 (N.D. Ill. 2007)
(“Under Illinois law, a landowner does not have a duty to remove natural
accumulations of snow and ice, but the landowner who voluntarily removes
snow or ice negligently may be subject to liability.”); Wailes v. Hy-Vee, Inc.,
861 N.W.2d 262, 267 (Iowa Ct. App. 2014) (explaining that, notwithstanding
Iowa’s “continuing storm” doctrine, a landowner may nonetheless be liable if
their efforts “created a hazardous condition or exacerbated the natural hazards
created by the storm . . . consistent with the general rule that an actor
ordinarily has a duty to exercise reasonable care when the actor’s conduct
creates a risk of physical harm” (citation omitted)); see generally Restatement
(Second) of Torts § 323 (explaining the general tort rule that a duty voluntarily
assumed must not “increase[] the risk of such harm,” with liability hinging on
whether reasonable care was exercised). Any interpretation of Pareja’s first
exception in tension with that fundamental tort principle significantly misses
the mark.
28 C.
Third, the majority’s holding provides no predictable or workable legal
standard -- and therefore no future guidance -- as to how its erroneous
interpretation of Pareja’s “unusual circumstances” exceptions should apply in
subsequent cases. Specifically, the majority leaves us without any legal
standard or definition for what the “unusual circumstances” phrase actually
means.
Practically speaking, it is unworkable to require that judges additionally
consider whether circumstances were “unusual” as a matter of law -- beyond
whether the defendant’s conduct increased the risk -- in order to reimpose a
duty of care during snowfall. Pareja expressly defined the two unusual
circumstances; outside those definitions, the “usualness” of a defendant’s
actions as opposed to its “unusualness” is not a meaningful legal test for the
imposition of a duty of care. Such a requirement, especially without any clear
guiding legal standard, will inevitably lead to confusion for our trial judges
and litigants, and result in arbitrary outcomes. 9
9 And even beyond the first Pareja exception, under the majority’s holding, the applicability of the second exception -- whether there was a “pre-existing risk on the premises before the storm” -- will similarly turn on haphazard determinations as to whether the pre-existing risk not only existed, but was also one the court finds to be “unusual.” See id. at 559.
29 D.
Finally, and most importantly, the majority’s interpretation undermines
tort law. Its interpretation amounts to blanket immunity from liability for
commercial landowners’ “normal” yet unreasonable snow and ice removal
activities. It is well known that “one of the main functions of tort law is to
prevent accidents” by encouraging landowners to exercise ordinary and
reasonable care. See Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 448
(1993) (emphasis added). The aim of tort law is to ensure that defendants who
tortiously cause plaintiffs harm are held liable for their wrongdoing. See
McCarrell v. Hoffman-La Roche, Inc., 227 N.J. 569, 592 (2017) (“The
essential purpose of substantive tort law is to provide a remedy to a party who
has been wronged.”). Yet, under the majority’s reasoning, innocent parties
who suffer injuries due to negligent snow removal are denied a cause of action
and are unable to seek relief. By immunizing unreasonable conduct, victims
absorb the losses that tortfeasors should bear, and the tortfeasors retain the
benefit of their wrongful conduct. See People Express Airlines, Inc. v. Consol.
Rail Corp., 100 N.J. 246, 255 (1985) (explaining that the “overarching purpose
of tort law” is that “wronged persons should be compensated for their injuries
and that those responsible for the wrong should bear the cost of their tortious
conduct”).
30 By contrast, I would hold that a commercial occupier of land cannot
voluntarily undertake snow and ice removal, do so in an unreasonable manner
that injures plaintiffs, and then be simultaneously immunized from liability
under Pareja’s first exception to the ongoing storm rule. In other words,
voluntary snow and ice removal can never be “normal” if it is done
unreasonably. Under Pareja, commercial landowners no longer have a duty to
affirmatively undertake snow and ice remediation during an ongoing storm.
But if they voluntarily decide to do so, Pareja’s first exception reimposes a
duty of reasonable care on them. Those ordinary tort principles must apply to
prevent accidents and compensate innocent victims -- here, business invitees.
Notably, the rationale underlying the majority’s disregard for those
principles in its expansion of the Pareja exception rests solely on its policy
preference that it disapproves of the consequences business owners might
otherwise face. The majority explains:
Were we to construe the first Pareja exception as the trial court and Gallardo interpreted it and the dissent contends that we should, that exception would eviscerate the ongoing storm rule. Absent the “unusual circumstances” requirement, a court could impose a duty on a commercial landowner if that landowner or its contractor applies a de-icer such as salt during an ongoing storm or shovels the snow, but its efforts fail and a pedestrian or business invitee is injured. . . . Such a rule would apply with equal force to a family operating a single store or a major corporation such as Walmart. It would incentivize landowners and their
31 contractors to forgo any remediation effort until a storm is over, thereby increasing the risk of injury to pedestrians and invitees.
[Ante at ___ (slip op. at 34-35) (emphases added) (citation omitted).]
But if applied as I read the first exception (and as other jurisdictions
apply equivalent exceptions), it does not punish commercial landowners for
voluntarily engaging in remedial efforts when they choose to stay open during
a storm; it merely imposes a duty of reasonable care on them if they
voluntarily increase the risk of harm to business invitees. Thus, when
interpreted as plainly written, Pareja’s exception simply discourages
commercial landowners from unreasonably engaging in remedial efforts
towards its business invitees, as only under those circumstances could they
incur liability. If application of Pareja’s framework -- the ongoing storm rule
and its two exceptions, as plainly written, -- is as problematic as the majority
now finds, then the purported unworkability of Pareja, along with the resulting
questions of public policy, are matters better left to the Legislature at this
juncture.
If the majority’s two-step understanding of Pareja’s first exception was
somehow correct (which it is not), then the majority nonetheless errs by
applying Pareja’s framework to begin with. First, (A) Pareja’s framework
32 cannot control because neither it -- nor the majority’s understanding of its
“unusual circumstances” language -- was the governing law at the time of
plaintiff’s accident. And second, (B) even if “unusual circumstances” was the
law at the time of the accident, Pareja’s holding expressly governs public
sidewalk liability -- it does not extend to the facts of this case, where plaintiff
fell on private property.
The majority erroneously applies its novel interpretation of Pareja’s
framework to an accident that occurred six years before the Pareja Court
adopted the ongoing storm rule and incorporated the exception at issue. 10
10 The majority correctly explains that the parties frame the issues in an appeal. See ante at ___ (slip op. at 23). Here, the parties have directly raised the applicability of Pareja and its exceptions throughout the proceedings below, and the issue is of significant public importance. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1977); Borough of Keyport v. Maropakis, 332 N.J. Super. 210, 216 (App. Div. 2000) (“[I]f the issue is of special significance to the litigant, to the public, or the achievement of substantial justice, and the record is sufficiently complete to permit its adjudication, we may consider it.”). And even if there were any questions as to whether the issue is properly before this Court (which it is), the need for clarity and consistency in the law, as well as the substantial impact on the parties and similarly situated litigants, should compel the Court to address it now.
33 Before Pareja, no case insulated landowners from a duty of reasonable
care during snowfall absent “unusual circumstances.” Not even Walmart
would have known that such a standard purportedly governed its conduct
because, at the time of the accident, that was not the law. Yet, in dismissing
plaintiff’s claims against Walmart, the majority introduces a new
understanding of Pareja’s first exception, one that was not -- and could not
have been -- the governing law at the time of plaintiff’s accident, as the
“unusual circumstances” descriptor did not exist until several years later.
No reasonable argument can be made that, at the time of plaintiff’s
accident, a commercial landowner only had a duty of care to business invitees
during snowfall if a court finds not only that the commercial landowner
increased the risk of harm, but additionally that the court believes that those
circumstances were “unusual.” See ante at ___ (slip op. at 35). The phrase
“unusual circumstances” did not exist in New Jersey tort law pre-Pareja, and
the majority’s new interpretation of the exception certainly did not exist before
The novelty of the majority’s sole reliance on the “unusual
circumstances” phrase to grant Walmart summary judgment is underscored by
its emphasis on the lack of proffered testimony regarding “unusual
circumstances.” See ante at ___ (slip op. at 36). As the majority explains, “no
34 fact or expert witness testimony established ‘unusual circumstances’ that
would justify the imposition of a duty as an exception to the ongoing storm
rule.” Ante at ___ (slip op. at 36). On that basis, the majority concludes no
legal duty is reimposed and that the trial judge “should have granted
Walmart’s motion for summary judgment based on the record presented in that
motion.” Ante at ___ (slip op. at 36).
But of course plaintiff did not present evidence in a motion record as to
so-called “unusual circumstances” to reimpose a duty during an ongoing storm
-- no principle in tort law, no principle of general negligence, and no principle
in our own case law required plaintiff to make such a showing of “unusual
circumstances” when this accident occurred. Nonetheless, the majority
reverses the jury verdict in plaintiff’s favor and dismisses the complaint eleven
years after the accident because she failed to provide fact or expert testimony
relevant to a duty exception that had never been articulated in New Jersey law
until six years after her accident, and consequently failed to satisfy the
majority’s novel interpretation of that exception, one which did not exist until
Rather than grant Walmart summary judgment, I would uphold the jury
verdict because the trial judge correctly charged the jury on the applicable,
35 governing law at the time of plaintiff’s accident -- that of general negligence
principles.
Without reference to Pareja’s framework pertaining to the reimposition
of a legal duty of reasonable care during an ongoing storm, 11 the trial judge
comprehensively instructed the jury on the applicable law, explaining, in part,
the following:
[I]f an ordinary person under similar circumstances and by the use of ordinary care would have foreseen the results that some injury or damage probably would have resulted and, either would not have acted, or if the person did act would have taken precaution to avoid the result, then the performance of the act or the failure to take such precaution would constitute negligence.
Because Walmart voluntarily acted, those longstanding principles
control this matter -- not the majority’s brand new “unusualness” requirement.
The trial judge was correct, again, to reject Walmart’s request to instruct the
jury on the “unusual circumstances” language. In response to Walmart’s
11 In declining to charge the jury on Pareja, the trial judge correctly acknowledged that because Pareja’s framework concerns the imposition and reimposition of a duty of care, it concerns “an issue for summary judgment” and “deals not with what happens at trial before a jury”; in other words, it is “a question of law that must be decided by the court.” Jerkins ex rel. Jerkins v. Anderson, 191 N.J. 285, 295 (2007).
36 request that the jury be charged on “unusual circumstances,” the trial judge
further correctly explained that:
This case is not Pareja. This case is dealing with the fact that Walmart, the [d]efendant in this case, . . . undertook an action. And whether or not . . . that action . . . caus[ed] . . . [the] resulting damages is a question of fact for the jury to decide under regular . . . negligence as in a pre-Pareja case. . . . [T]he question before the jury is, . . . in undertaking actions, [was Walmart] negligent in the actions they took or the inactions that they should’ve taken . . . relating to what they did?
The trial judge’s reasoning reflects a proper understanding of the law at
the time -- again, this Court only adopted the ongoing storm rule and its
corresponding exceptions, “[f]or the first time,” in Pareja. 246 N.J. at 548.
Any contention to the contrary misreads our pre-Pareja case law. The
majority cites Bodine v. Goerke Co., 102 N.J.L. 642 (E. & A. 1926), to imply
that the legal principles announced in Pareja are not new. See ante at ___ (slip
op. at 26-27). But Bodine never established that the duty of a commercial
landowner to keep a sidewalk reasonably free and clear of snow and ice
commences only after a reasonable time passes following precipitation. In
Bodine, the plaintiff alleged that the commercial landowner allowed “snow to
remain on the store entrance . . . for an unreasonable length of time [after]
having notice thereof” and that doing so would have rendered the area slippery
and dangerous.” 102 N.J.L. at 643. The Court of Errors and Appeals
37 expressly identified the “only question” on appeal: “[W]hether negligence
may be reasonably inferred from the testimony.” Id. at 642. It concluded the
trial judge erred by not entering a directed verdict of no cause of action in the
commercial landowner’s favor. Id. at 644.
Little can be gleaned from this two-page opinion written 100 years ago.
At best, Bodine simply applied the old English common law “no liability” rule,
which provided that “the parish at large is prima facie bound to repair all
highways lying within it,” and which was applied in our own early law as
placing the responsibility for maintenance of sidewalks on the government.
Stewart, 87 N.J. at 153-54 (citing The King v. Inhabitants of Sheffield, 2 T.R.
106, 111 (K.B. 1787)). But in Stewart, this Court expressly abolished that rule
as “unjust,” out of step with the “basic goals of tort law,” and “not responsive
to current urban conditions,” holding instead that “commercial landowner[s]
are responsible for maintaining in reasonably good condition the sidewalks
abutting their property and are liable to pedestrians injured as a result of their
negligent failure to do so.” 87 N.J. at 154-55, 157.
Insofar as Bodine retains any precedential value, the Court of Errors and
Appeals did not hold that a commercial landowner has no duty to clear a
business entrance of snow and ice until precipitation has ceased, and no
reasonable reading of Bodine suggests otherwise. In fact, the Court of Errors
38 and Appeals never expressly discussed when a duty to remove snow and ice
hazards arises. Neither did any subsequent judicial decision directly address
such a duty before Pareja. And Bodine of course said nothing about “unusual
circumstances.”
Furthermore, in Pareja, the Court expressly acknowledged that “none of
these cases [relied upon] directly address the ongoing storm rule.” 246 N.J. at
554. The common rule in the pre-Pareja cases was that of reasonable care.
See Saco, 1 N.J. at 382 (an owner who constructs a drain on a sidewalk has a
“duty to exercise reasonable care to keep the structure safe for the use of the
public” (emphasis added)); Davis v. Pecorino, 69 N.J. 1, 9 (1975) (a
“landowner or occupier owes a duty of reasonable care to pedestrians lawfully
traversing the public way” (emphasis added)); Mirza v. Filmore Corp., 92 N.J.
390, 395 (1983) (a commercial landowner may be liable if “he has not acted in
a reasonably prudent manner under the circumstances” (emphasis added)).
Accordingly, the trial judge correctly charged the jury with the
applicable law, and thus, I would uphold the jury verdict.
B.
The majority further errs in applying Pareja because the ongoing storm
rule applies to “public walkways,” not Walmart’s private parking lot. 246 N.J.
at 548 (emphasis added). Despite Pareja’s plain and express holding that
39 “commercial landowners do not have the absolute duty . . . to keep sidewalks
on their property free from snow or ice during an ongoing storm,” 246 N.J. at
548, 558 (emphasis added), the majority now extends the ongoing storm rule to
insulate Walmart from its duty of care to plaintiff in Walmart’s private parking
lot, voluntarily left open for business during the sleet, snow, and rain. 12
But “historically and currently, the law has not been the same with
respect to individuals who have been injured due to the conditions on the
public sidewalk as opposed to private property.” Cogliati v. Ecco High
Frequency Corp., 92 N.J. 402, 415 n.6 (1983); see also Qian v. Toll Bros. Inc.,
223 N.J. 124, 138 (2015) (“[U]nder our tort law, liability may depend on
whether a plaintiff suffers an injury on the walk leading to the front door of a
house -- which is owned or controlled by the property owner -- as opposed to a
sidewalk abutting the property.”). That is because “[t]he status of the injured
as trespasser, licensee, social invitee or business invitee has been a
determinant in defining the owner’s duty on private property; such delineation
is irrelevant with respect to the pedestrian on the public sidewalk.” Cogliati,
92 N.J. at 415 n.6.
12 Even if Pareja applies to commercial private parking lots, Walmart’s conduct during the storm reimposed a duty of reasonable care.
40 Differentiating between public and private premises is necessary because
the public has a “right to . . . safe and unimpeded passage” and travel on
public walkways. Stewart, 87 N.J. at 151-52 (quoting Davis, 69 N.J. at 5). In
contrast, private property is not open to all; access is limited and often
conditional, depending on the relationship between the landowner and the
entrant. As a result, the landowner’s duty of care on private premises is
tailored to the entrant’s status and the circumstances of their entry; there is no
blanket obligation to all comers as there is for public walkways. That body of
law has existed for decades.
Indeed, the distinction between public walkways and private premises is
especially important in Pareja’s ongoing-storm context: Post-Pareja,
commercial landowners do not owe a duty of care to plaintiffs traversing on
“public walkways until a reasonable time after the cessation of precipitation”;
that is, they are not required to maintain and treat premises -- such as
“sidewalks” -- that they cannot close or otherwise restrict access to during a
storm. 246 N.J. at 548 (emphasis added). But when commercial landowners
voluntarily keep their private premises open and invite the public onto their
property for business, they must owe invitees a duty of reasonable care,
regardless of the weather conditions, as they have full control over public
access to those private premises.
41 In line with that distinction, the Pareja Court only reached its “public
walkway” and “sidewalk”-limited holding after “reviewing our case law on
sidewalk liability.” Id. at 548-50, 554-60 (emphasis added); see, e.g., Qian,
223 N.J. at 127 ( “Residential public-sidewalk immunity does not apply in the
case of a sidewalk privately owned by a common-interest community.”);
Stewart, 87 N.J. at 157 (“[C]ommercial landowners are responsible for
maintaining in reasonably good condition the sidewalks abutting their property
. . . .”); Bodine, 102 N.J.L. at 643 (from a walkway, slip and fall inside a store
vestibule in the entrance to a store); Saco, 1 N.J. at 378 (slip-and-fall upon an
icy sidewalk); Davis, 69 N.J. at 3 (slip-and-fall on a public sidewalk); Mirza,
92 N.J. at 400 (“[M]aintenance of the public sidewalk abutting commercial
properties under Stewart includes removal or reduction of the hazard of snow
and ice dependent upon the standard of care of a reasonably prudent person
under the circumstances.”); Luchejko v. City of Hoboken, 207 N.J. 191, 195,
211 (2011) (distinguishing between “commercial and residential property
owners for the purpose of imposing a duty to maintain sidewalks” and holding
that a condominium complex is “residential and therefore is not subject to
sidewalk liability”). And courts citing to Pareja, along with this broader body
of case law, unsurprisingly understand it to reflect New Jersey’s imposition of
“a duty of care on commercial proprietors to make public walkways, like
42 sidewalks, safe for pedestrians.” See Snead v. Bally’s Casino, 700 F. Supp. 3d
203, 221 (D.N.J. 2023) (emphasis added) (citing Pareja and the above case law
as controlling New Jersey public walkway liability, and describing Pareja
specifically as “collecting cases imposing a duty of care on commercial
proprietors to remove snow and ice from sidewalks” (emphasis added)).
Further illustrating that difference, and consistent with this dissent, is the
revised model jury charge responding directly to Pareja. The updated charge,
which this Court approved, applies only to sidewalks -- it does not address
private parking lots because commercial private parking lots had nothing to do
with Pareja. The charge properly states that “a commercial property owner
does not have a duty to keep sidewalks on its property free from snow or ice
during an ongoing storm.” Model Jury Charges (Civil), 5.20B, “Liability for
Defects in Public Streets and Sidewalks” (rev. Jan. 2025) (emphasis added).
Here, plaintiff did not slip on a public sidewalk; her accident occurred in
Walmart’s private parking lot, voluntarily left open for business during an
ongoing storm. It is axiomatic that private parking lots are not public
walkways. Accordingly, in line with Pareja’s holding, the trial judge correctly
instructed the jury that Walmart had a nondelegable duty to make its premises
reasonably safe for business invitees. Despite the explicit language and
unambiguous context of the above case law -- not to mention the material
43 distinction in tort liability between public and private premises -- the majority
applies Pareja to Walmart’s private parking lot.
IV.
Finally, the majority errs in granting Walmart summary judgment
despite the litany of disputed issues of fact on this record (all of which a jury
has already resolved in finding Walmart negligent after a full multi-day trial).
Thus, if Pareja’s new framework had applied to plaintiff’s case, and there had
not yet been a trial, a jury would then have needed to resolve the factual
question of whether Walmart’s affirmative snow removal -- which increased
the risk of harm to plaintiff -- constituted a breach of its duty of reasonable
care to her.
Relevant disputed issues of fact that preclude summary judgment
include, but are not limited to, whether: (1) Walmart failed to follow its own
standard operating procedure to pretreat the parking lot surface before the
storm started; (2) Walmart negligently delegated to Land Pros its
responsibility to make its premises safe; (3) Walmart reasonably inspected or
supervised Land Pros’ work; (4) the slush and ice caused plaintiff’s fall; (5)
Walmart called Land Pros back to address the dangerous conditions; (6)
Walmart allowed ice to form in a parking lot and failed, as Weist opined, to
conduct a reasonable inspection, which would have corrected the dangerous
44 condition; (7) Walmart failed to train its own personnel in snow and ice
management; (8) Walmart violated accepted standards and practices in training
its personnel; (9) Walmart’s management knew or should have known that the
dangerous accumulation of snow and ice existed, particularly given that
Walmart’s assistant manager admitted that the parking lot “should have been
better cleaned off”; (10) Walmart’s actions/inactions fell below accepted
standards by failing to have in place and follow proper procedures to make its
premises safe for invitees; (11) Fierro, owner of Land Pros, had formal training
in snow and ice management, and written policies for snow and ice
management; (12) Fierro refused to inspect the property at reasonable
intervals; (13) Fierro failed to pretreat the parking lot surface, even though
Fierro was monitoring the weather; (14) Fierro, after spreading salt, failed to
monitor or return to the lot despite snow, sleet, and rain falling; (15)
application of salt, once accumulation occurred, “decreased the overall traction
of the surface”; (16) “applying de[-]icer, as in this case, caused increased
slickness if the surface/ground temperature is around or above [thirty-two
degrees]”; (17) the “manner in which . . . Fierro addressed the conditions at
Walmart required/caused/created the further need not only for him but for
Walmart to . . . follow-up by clearing the resulting snow and slush”; (18)
“throwing de-icer on . . . snow already on the ground” was “[a]bsolutely not”
45 acceptable by industry standards; (19) ground temperature is different from the
“ambient,” or air temperature, such that on the day of the accident, the ground
would have been colder than the air; (20) with “[t]he ground temperature being
at least freezing, [thirty-two] degrees,” throwing de-icer on snow already on
the ground “immediately becomes black ice”; (21) when Land Pros “put the
salt down . . . , and when it hit[] that cold untreated surface it bec[ame] black
ice”; and (22) Land Pros exacerbated the condition by throwing water on it.
And so on.
Despite the jury’s findings that Walmart’s negligence caused the
accident and plaintiff’s serious injuries, under the majority’s opinion, plaintiff
will no longer be fairly and adequately compensated for her permanent
injuries.
In sum, the majority erroneously vacates plaintiff’s verdict, setting aside
her $1,328,658.59 judgment -- eleven years after the accident -- by summarily
granting Walmart judgment as a matter of law. Such a disposition denies
plaintiff the remedy to which she is entitled, immunizes a commercial occupier
for unreasonable conduct that a jury found to be negligent, and rewrites the
law in a manner that will sow confusion and inequity for years to come.
For the foregoing reasons, I dissent.
Haydee Gallardo v. Walmart (Haydee Gallardo v. Walmart) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.