TRENTON, N.J. - A woman who fell in a Walmart parking lot in less than a tenth of an inch of snow saw her $1.3 million jury verdict blown away as the New Jersey Supreme Court ruled landowners typically aren’t liable for failing to remove snow during a storm.
Citing a 2021 decision in which it established the “ongoing storm” rule, the state’s highest court rejected arguments a jury should decide whether Walmart was negligent for failing to pretreat its parking lot with de-icer before the storm hit. Only in “unusual circumstances” that increase the risk to pedestrians can a landowner be found liable, the court ruled in a July 30 decision by Justice Anne M. Patterson.
“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,” the court said. It would also give landowners an incentive to do nothing during a storm to avoid the risk of getting caught in the “unusual circumstances” trap, the court said.
Haydee Gallardo claimed she suffered permanent injuries after she slipped on a “trace” of snow and “landed on my butt” during a storm in January 2015. She hired an expert, J. Nelson Wiest, who said spreading salt on existing snow, as opposed to before the storm starts, can cause it to melt and create slippery black ice.
Gallardo sued Walmart in October 2016, but before her case got to trial the New Jersey Supreme Court decided Pareja v. Princeton International, finding landowners don’t have a duty to remove ice and snow during a storm except if they do something else that increases the risk to pedestrians and visitors.
In that decision, the court cited a Rhode Island Supreme Court decision with an example of “unusual circumstances”: A car mechanic told a woman to “go and get her vehicle” at the back of his lot during a snowstorm and she fell, not because of negligent snow removal but because of negligent instructions to walk back in the lot.
Walmart argued it couldn’t be negligent under the ongoing storm rule. The trial court disagreed, ruling a jury had to decide if Walmart was liable for failing to pretreat the parking lot. The trial judge also refused to tell the jury about Pareja, saying it wasn’t the law when the injury occurred.
“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,” the trial judge reasoned.
The jury awarded Gallardo $1.3 million, including $500,000 for pain and suffering. Walmart appealed and the appeals court reversed the verdict based on the failure to inform the jury about Pareja and the ongoing storm rule. The appeals court called for a new trial, not summary judgment, ruling there was a fact question over whether Walmart had made the parking lot more dangerous.
Both sides appealed to the New Jersey Supreme Court, which ruled against Gallardo. Walmart had no duty to “pretreat” the parking lot, the court said, and penalizing it for spreading salt after the storm started would have a perverse effect.
“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,” the court said.
Justices Douglas Fasciale, Michael Noriega and John Jay Hoffman dissented, saying the majority opinion “ventures far afield from bedrock tort principles” that impose liability on landowners for any negligent act.
“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,” wrote Justice Fasciale.
