Slip and Fall Expert WitnessesPlaintiff appealed from the trial court’s grant of summary judgment for his landlordand dismissal with prejudice of his complaint alleging negligence in failing to clear ice on a sidewalk on which Plaintiff slipped and fell at the apartment complex 

Judges Francis J. Vernoia and Scott J. Moynihan wrote in their per curiam opinion that Plaintiff alleged that he slipped and fell on an icy walkway in the apartment complex on January 18, 2015 at approximately 1:00 p.m. and suffered a fractured radius in his left arm. The timing of the injury and when the precipitation started and stopped were critical in the case. Expert testimony was required as to the weather conditions. 

Plaintiff acknowledged that, according to the Hourly Weather Table for the day in question found in the defendant’s weather expert report, freezing rain began to fall around 7AM. 

“Further, according to defendant’s expert, the temperature remained in the mid-twenties, well below freezing, when the freezing rain began to develop.” Plaintiff added, “[i]t is undisputed that the ice rain stopped falling prior to plaintiff’s fall.  

The Court noted that Defendant’s expert report indicated that the temperatures began to rise above freezing starting at 11AMtwo hours before Plaintiff’s” fall, and “more than fifteen hours after” the National Weather Service issued a freezing rain advisory.  

In his deposition, Plaintiff maintained that it was cold and raining lightly at the time he fell. He argued that considering Defendant’s expert noted “the transition from freezing rain to plain rain occurred beginning around [11:00 a.m.],” Defendant was negligent by failing to treat the icy sidewalk three hours after the freezing rain stopped. 

The hourly weather table included in the expert’s report actually indicated the “[f]reezing rain” transitioned to “[f]reezing rain and plain rain” at 11:00 a.m. and then from “[f]reezing rain and plain rain” to “[r]ain” at 2:00 p.m. 

Given this testimony, the trial judge recognized a commercial property owner has a duty to keep its premises safe, including public sidewalks. Saying he was adopting the theories under Mirza v. Filmore Corporation (1983), the judge concluded Defendant didn’t have “the responsibility to go out while it [was still] raining to deice a condition that developed the hour earlier or two hours earlier” because the owner had “to be given some form of reasonable time period after the cessation of the storm itself. 

The appellate court noted that although it normally decideevidentiary rulings before determining if summary judgment was prudently granted, it need not address Plaintiff’s argument that the motion judge erred by relying on the net opinion rendered by defendant’s expert. The Court considered only those facts Plaintiff deemed undisputed in its de novo review. 

Judges Vernoia and Moynihan agreed with the trial judge that “commercial landowners 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,” citing a 1981 decision. 

The judge explained that the New Jersey Supreme Court extended that duty, declaring that the maintenance of a public sidewalk in a reasonably good condition may require removal of snow or ice or reduction of the risk, depending upon the circumstances.” The Supreme Court went on to hold that the test is whether a reasonably prudent person, who knows or should have known of the condition, would have within a reasonable period of time thereafter caused the public sidewalk to be in reasonably safe condition. 

The Court stated that “[p]recedent, almost one-hundred years-old, persuades us that that reasonable period did not commence in this case until the precipitation ceased.” Citing a 1926 decision, the judges noted that the plaintiff — on a day when it snowed from 9:00 a.m. until 3:00 p.m. – slipped and fell at approximately 12:20 p.m. on accumulated slush in the vestibule of defendant’s store. Determining it was error for the trial court to have submitted the case to a jury, the Court held there were [n]o inferences from those facts, that could or ought to justify a jury in finding that the defendant was guilty of negligence.  

The Court distinguished that 1926 case from a class of cases of which a 1918 case was illustrative. In that earlier case, 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. The plaintiff in that case was a guest leaving the premises just after dark who slipped on a coating of frozen snow and ice. 

The Court found that the fact that the freezing rain had turned to rain during this winter storm didn’t convince it that summary judgment shouldn’t have been granted. It is undisputed that it was still raining when plaintiff fell,” they wrote.  

The continuation of the storm didn’t provide defendant with a reasonable period of time to remove the ice from the sidewalk. That reasonable period started at the conclusion of the precipitation. 

The appellate court affirmed the trial court’s judgmentholding that the landlord had no duty to clear the ice until the precipitation stopped.  

The weather expert provided information on when the rain turned to freezing rain, and when the precipitation stopped, a critical element to the case.